EXHIBIT 10.69
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ADMINISTRATION AGREEMENT
AMONG
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES TRUST 2002-A
AND
ALLIANCE LAUNDRY SYSTEMS LLC
AND
THE BANK OF NEW YORK
Dated as of November 26, 2002
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ADMINISTRATION AGREEMENT, dated as of November 26, 2002 among ALLIANCE
LAUNDRY EQUIPMENT RECEIVABLES TRUST 2002-A, a Delaware statutory trust (the
"Issuer"), ALLIANCE LAUNDRY SYSTEMS LLC, a Delaware limited liability company,
as administrator (the "Administrator"), and THE BANK OF NEW YORK, a New York
banking corporation, not in its individual capacity but solely as Indenture
Trustee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing Notes pursuant to an Indenture, dated as of
November 26, 2002 (as amended and supplemented from time to time, the
"Indenture"), between the Issuer and the Indenture Trustee;
WHEREAS, the Issuer has entered into (or assumed) certain agreements in
connection with the issuance of the Notes, including (i) the Pooling and
Servicing Agreement, (ii) the Indenture and (iii) the Ambac Insurance Agreement;
WHEREAS, pursuant to the Basic Documents, the Issuer and Wilmington Trust
Company, as Owner Trustee, are required to perform certain duties in connection
with the Notes and the Trust Estate;
WHEREAS, the Issuer and the Owner Trustee desire to have the Administrator
perform certain of the duties of the Issuer and the Owner Trustee referred to in
the preceding clause, and to provide such additional services consistent with
the terms of this Agreement and the Basic Documents as the Issuer and the Owner
Trustee may from time to time request;
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:
1. Certain Definitions. Capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned them in Part I of
Appendix A to the Pooling and Servicing Agreement of even date herewith among
the Issuer, Alliance Laundry Equipment Receivables 2002 LLC, as Transferor, and
Alliance Laundry Systems LLC, as Servicer and Originator (as it may be amended,
supplemented or modified from time to time, the "Pooling and Servicing
Agreement"). All references herein to "the Agreement" or "this Agreement" are to
this Administration Agreement as it may be amended, supplemented or modified
from time to time, the exhibits hereto and the capitalized terms used herein
which are defined in such Appendix A, and all references herein to Sections and
subsections are to Sections and subsections of this Agreement unless otherwise
specified. The rules of construction set forth in Part II of such Appendix A
shall be applicable to this Agreement.
2. Duties of the Administrator.
(a) Duties with Respect to the Indenture. The Administrator agrees to
perform all of its duties as Administrator and the duties of the Issuer and the
Owner Trustee under the Indenture and the Administrator shall consult with the
Issuer and Owner Trustee in connection herewith. The Administrator shall monitor
the performance of the Issuer and shall advise the Owner Trustee when action is
necessary to comply with the duties of the Issuer and the Owner Trustee under
the Indenture. The Administrator shall prepare for execution by the Issuer or
the Owner Trustee or shall cause the preparation by other appropriate persons of
all such documents, reports, filings, instruments, certificates, notices and
opinions as shall be the duty of the Issuer or the Owner Trustee, as applicable,
to prepare, file or deliver pursuant to the Indenture. In furtherance of the
foregoing, the Administrator shall take all appropriate action that it is the
duty of the Issuer or the Owner Trustee to take pursuant to the Indenture
including such of the foregoing as are required with respect to the following
matters under the Indenture (references are to sections of the Indenture):
(1) the preparation of or obtaining of the documents and instruments
required for authentication of the Notes and delivery of the same to the
Indenture Trustee pursuant to Section 2.2;
(2) causing the Note Register to be kept and giving the Indenture
Trustee notice of any appointment of a new Note Registrar and the location,
or change in location, of the Note Register pursuant to Section 2.4;
(3) the notification of Noteholders of the final principal payment on
their Notes pursuant to Section 2.7(c);
(4) the preparation, obtaining or filing of the instruments, opinions
and certificates and other documents required for the release of collateral
pursuant to Section 2.9;
(5) the maintenance of an office in the Borough of Manhattan, the City
of New York, for registration of transfer or exchange of Notes pursuant to
Section 3.2;
(6) the direction to the Indenture Trustee to deposit monies with
Paying Agents, if any, other than the Indenture Trustee pursuant to Section
3.3(b);
(7) causing newly appointed Paying Agents, if any, to deliver to the
Indenture Trustee the instrument specified in the Indenture regarding funds
held in trust pursuant to Section 3.3(b);
(8) the obtaining and preservation of the Issuer's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the Trust Estate and each other instrument and agreement included in
the Trust Estate pursuant to Section 3.4;
(9) the preparation of all supplements, amendments, financing
statements, continuation statements, instruments of further assurance and
other instruments, in accordance with Section 3.5, necessary to protect the
Trust Estate;
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(10) the delivery of the Opinion of Counsel on the Closing Date, in
accordance with Section 3.6(a), as to the Trust Estate, and the annual
delivery of the Opinion of Counsel, the Officer's Certificate and certain
other statements, in accordance with Sections 3.6(b) and 3.9, as to
compliance with the Indenture;
(11) the identification to the Indenture Trustee in an Officer's
Certificate of a Person with whom the Issuer has contracted to perform its
duties under the Indenture pursuant to Section 3.7(b);
(12) the notification of the Indenture Trustee, the Insurer and the
Rating Agencies of a Servicer Default and, if such Servicer Default arises
from the failure of the Servicer to perform any of its duties under the
Pooling and Servicing Agreement, the taking of all reasonable steps
available to remedy such failure pursuant to Section 3.7(d);
(13) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture pursuant to Section 3.11(b);
(14) the delivery of notice to the Indenture Trustee, the Insurer and
the Rating Agencies, of each Default, Event of Default, Rapid Amortization
Event, Servicer Default and default by the Transferor and ALS of their
respective obligations under the Pooling and Servicing Agreement and the
Purchase Agreement pursuant to Section 3.19;
(15) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing pursuant to Section 5.4;
(16) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee pursuant to Section 6.8;
(17) the preparation of any written instruments required to confirm
more fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or removal
of any co-trustee or separate trustee pursuant to Sections 6.8 and 6.10;
(18) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is
not the Note Registrar pursuant to Section 7.1;
(19) the preparation of an Issuer Request and Officer's Certificate
and the obtaining of an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Trust Estate pursuant to Sections 8.4 and
8.5;
(20) the preparation of Issuer Orders and the obtaining of Opinions of
Counsel with respect to the execution of amendments or waivers and, if
applicable, the mailing to the Noteholders of notices with respect to such
amendments or waivers pursuant to Sections 9.1, 9.2 and 9.3;
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(21) the execution and delivery of new Notes conforming to any
amendment pursuant to Section 9.6;
(22) the notification of Noteholders and the Rating Agencies of
redemption of the Notes or the duty to cause the Indenture Trustee to
provide such notification pursuant to Sections 10.1 and 10.2;
(23) the monitoring of the Issuer's obligations as to the satisfaction
and discharge of the Indenture and the preparation of an Officer's
Certificate and the obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto pursuant to Section 11.1;
(24) the preparation of all Officer's Certificates and Opinions of
Counsel with respect to any requests by the Issuer to the Indenture Trustee
to take any action under the Indenture pursuant to Section 12.1(a);
(25) the preparation and delivery of Officer's Certificates and the
obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture pursuant to Section 12.1(b);
(26) the notice or other communication to the Rating Agencies, upon
the failure of the Indenture Trustee to give such notice or other
communication pursuant to Section 12.4;
(27) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions pursuant to Section 12.6; and
(28) the recording of the Indenture, if applicable, pursuant to
Section 12.15.
(b) Duties with Respect to Ambac Insurance Agreement. The
Administrator additionally agrees to perform all its duties as Administrator and
the duties of the Issuer and the Owner Trustee under the Ambac Insurance
Agreement. In addition, the Administrator shall consult with the Owner Trustee
regarding the duties of the Issuer and the Owner Trustee under the Ambac
Insurance Agreement. The Administrator shall monitor the performance of the
Issuer and shall advise the Owner Trustee when action is necessary to comply
with the duties of the Issuer and the Owner Trustee under the Ambac Insurance
Agreement. The Administrator shall prepare for the execution by the Issuer or
the Owner Trustee or shall cause the preparation by other appropriate persons of
all such documents, reports, filings, instruments, certificates, notices and
opinions as it shall be the duty of the Issuer or the Owner Trustee, as
applicable, to prepare, file or deliver pursuant to the Ambac Insurance
Agreement. In furtherance of the foregoing, the administrator shall take all
appropriate action that is the duty of the Issuer or the Owner Trustee to take
pursuant to the Ambac Insurance Agreement including such of the foregoing as are
required with respect to the following matters under the Ambac Insurance
Agreement (references are to sections of the Ambac Insurance Agreement):
(1) the maintenance of the Issuer's existence as a statutory trust and
the obtaining and preservation of the Issuer's qualification to do business
in each jurisdiction
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in which such qualification is or shall be necessary under the Basic
Documents and shall maintain all licenses, permits, charters and
registrations material to the conduct of its business pursuant to Section
2.9(b);
(2) the notification of the Insurer of the occurrence of certain
material events pursuant to Section 2.9(d);
(3) permitting, upon reasonable prior notice of the Insurer, access to
the Issuer's records and an annual field examination of the Issuer by the
Control Party's independent public accountants pursuant to Sections 2.9(c)
and (e);
(4) the taking of all actions necessary to exempt the sale of the
Notes from registration under the Securities Act or any under any
applicable securities laws of any state of the United States pursuant to
Sections 2.9(f);
(5) to the extent the Issuer shall otherwise be preparing the same,
the delivery of the financial statements of the Issuer to the Insurer
pursuant to Section 2.9(g);
(6) the provision of such other information in respect of the Loans
and the Basic Documents and such other financial or operational information
in respect of the Issuer that the Insurer may reasonably request pursuant
to Section 2.9(h);
(7) the preparation and delivery of notice to the Control Party prior
to the consummation of any action or failure to act that is reasonably
likely to result in a Material Adverse Change (as defined in the Ambac
Insurance Agreement) or reasonably likely to interfere with the enforcement
of any of the Insurer's rights under the Basic Documents pursuant to
Section 2.10 (a); and
(8) the delivery to the Insurer of prior written notice of any
amendment to the Basic Documents required by law and a copy of any such
amendment pursuant to Section 2.10(b).
(c) Indemnity. In addition, the Administrator will indemnify the Owner
Trustee and its agents for, and hold them harmless against, any losses,
liability or expense incurred without gross negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration of
the transactions contemplated by the Trust Agreement, including the reasonable
costs and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or duties
under the Trust Agreement.
(d) Additional Duties.
(1) In addition to the duties of the Administrator set forth above,
the Administrator shall perform such calculations and shall prepare for
execution by the Issuer or the Owner Trustee or shall cause the preparation
by other appropriate Persons of all such documents, reports, filings,
instruments, certificates, notices and opinions as it shall be the duty of
the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Basic Documents, and at the request of the Owner Trustee shall take all
appropriate
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action that it is the duty of the Issuer or the Owner Trustee to take
pursuant to the Basic Documents. Subject to Section 7 of this Agreement,
and in accordance with the directions of the Owner Trustee, the
Administrator shall administer, perform or supervise the performance of
such other activities in connection with the Trust Estate (including the
Basic Documents) as are not covered by any of the foregoing provisions and
as are expressly requested by the Owner Trustee and are reasonably within
the capability of the Administrator.
(2) Notwithstanding anything in this Agreement or the Basic Documents
to the contrary, the Administrator shall be responsible for promptly
notifying the Owner Trustee if any withholding tax is imposed on the
Trust's payments to a Registered Owner as contemplated in Section 5.1(d) of
the Trust Agreement. Any such notice shall specify the amount of any
withholding tax required to be withheld by the Owner Trustee pursuant to
such provision.
(3) Notwithstanding anything in this Agreement or the Basic Documents
to the contrary, the Administrator shall be responsible for performance of
the duties of the Owner Trustee set forth with respect to, among other
things, tax return preparation, accounting and reports to the beneficial
owners.
(4) The Administrator may satisfy any obligations it may have with
respect to clauses (ii) and (iii) above by retaining, at the expense of the
Administrator, a firm of independent public accountants acceptable to the
Owner Trustee which shall perform the obligations of the Administrator
thereunder. If a withholding tax specified in the previous clause (ii) is
due, such accountants or the Administrator shall provide the Owner Trustee
with a letter specifying which withholding tax specified in the preceding
clause (ii) is then required and specifying the procedures to be followed
to comply with the Code thirty days before such tax is to be withheld. Such
accountants or the Administrator shall update such letter if and to the
extent it shall no longer be accurate.
(5) The Administrator shall perform the duties of the Administrator
specified in Section 6.10 of the Trust Agreement required to be performed
in connection with the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Administrator under
the Trust Agreement.
(6) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would be
available from Persons that are not Affiliates of the Administrator.
(7) The Administrator hereby agrees to execute on behalf of the Issuer
all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to the Basic Documents.
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(8) Notwithstanding anything in this Agreement or the Basic Documents
to the contrary, the Administrator shall be responsible for performance of
the duties of the Trust set forth in Section 2.3(iii) of the Trust
Agreement and compliance by the Trust of the provisions of Section 2.4 of
the Trust Agreement.
(e) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any action
unless, within a reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the proposed action and
the Owner Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include:
(1) the amendment of or any supplement to the Indenture;
(2) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the
Issuer;
(3) the amendment, change or modification of any of the Basic
Documents;
(4) the appointment of successor Note Registrars, successor Paying
Agents and successor Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators or successor Servicers, or the
consent to the assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(5) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments to
the Noteholders under the Basic Documents, (y) sell the Trust Estate pursuant to
Section 5.4 of the Indenture or (z) take any other action that the Issuer
directs the Administrator not to take on its behalf.
3. Successor Servicer and Administrator. The Issuer shall undertake,
as promptly as possible after the giving of notice of termination to the
Servicer of the Servicer's rights and powers pursuant to Section 9.02 of the
Pooling and Servicing Agreement, to cause the other parties thereto to enforce
the provisions of Sections 9.02, 9.03 and 9.04 of the Pooling and Servicing
Agreement with respect to the appointment of a successor Servicer. Such
successor Servicer shall, upon compliance with Sections 10(e)(ii) and (iii),
become the successor Administrator hereunder.
4. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the
Control Party, the Owner Trustee and the Seller at any time during normal
business hours.
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5. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Servicer shall pay the Administrator a monthly fee
in the amount of $1,500.
6. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Control Party and the Issuer from time to
time such additional information regarding the Trust Estate as the Issuer and
the Control Party shall reasonably request.
7. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
8. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
9. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
10. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution of
the Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 10(e), the Administrator may resign its duties
hereunder by providing the Issuer with at least sixty (60) days' prior written
notice.
(c) Subject to Section 10(e), the Issuer, with the consent of the
Control Party, may remove the Administrator, without cause by providing the
Administrator with at least sixty (60) days' prior written notice.
(d) Subject to Section 10(e), at the sole option of the Issuer, with
the consent of the Control Party, the Administrator may be removed immediately
upon written notice of termination from the Issuer to the Administrator if any
of the following events shall occur:
(1) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice from the Issuer of such
default, shall not cure such default within (10) ten days (or, if such
default cannot be cured in such time, shall not
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give within (10) ten days such assurance of cure as shall be reasonably
satisfactory to the Issuer);
(2) a court having jurisdiction in the premises shall enter a decree
or order for relief, and such decree or order shall not have been vacated
within sixty (60) days, in respect of the Administrator in any involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the Administrator
or any substantial part of its property or order the winding-up or
liquidation of its affairs; or
(3) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official
for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial
part of its property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 10(d) shall occur, it shall give written notice
thereof to the Issuer, the Control Party and the Indenture Trustee within seven
(7) days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section 10 shall be effective until (i) a successor Administrator acceptable to
the Control Party shall have been appointed by the Issuer, (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator is bound hereunder, and (iii)
the Rating Agency Condition has been satisfied with respect to such proposed
appointment.
11. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 10(a) or the
resignation or removal of the Administrator pursuant to Section 10(b) or (c),
respectively, the Administrator shall be entitled to be paid by the Servicer all
fees and reimbursable expenses accruing to it to the effective date of such
termination, resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 10(a) deliver to the Issuer all property and
documents of or relating to the Trust Estate then in the custody of the
Administrator. In the event of the resignation or removal of the Administrator
pursuant to Section 10(b) or (c), respectively, the Administrator shall
cooperate with the Issuer and take all reasonable steps requested by the
Indenture Trustee to assist the Issuer in making an orderly transfer of the
duties of the Administrator.
12. Notices. All demands, notices and communications upon or to the
Issuer, the Control Party, either Trustee, the Administrator or the Rating
Agencies under this Agreement shall be delivered to such addresses as specified
in Appendix B to the Pooling and Servicing Agreement.
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13. Amendments.
(a) This Agreement may be amended from time to time with prior notice
to the Rating Agencies by a written amendment duly executed and delivered by the
Issuer, the Administrator and the Indenture Trustee, with the written consent of
the Owner Trustee and the Control Party, for any of the following purposes:
(1) to add provisions hereof for the benefit of the Noteholders or to
surrender any right or power herein conferred upon the Administrator;
(2) to cure any ambiguity or to correct or supplement any provision
herein which may be inconsistent with any other provision herein or in any
other Basic Document;
(3) to evidence and provide for the appointment of a successor
Administrator hereunder and to add to or change any of the provisions of
this Agreement as shall be necessary to facilitate such succession; and
(4) to add any provisions to, or change in any manner or eliminate any
of the provisions of, this Agreement, or modify in any manner the rights of
the Noteholders; provided, however, that such amendment under this Section
13(a)(iv) shall not, as evidenced by an Opinion of Counsel, materially and
adversely affect in any material respect the interest of any Noteholder or
the Control Party.
Prior to the execution of any amendment pursuant to this Section 13(a), the
Administrator shall furnish written notification of the substance of such
amendment to each of the Rating Agencies.
(b) In addition to the foregoing, this Agreement may also be amended
by the Issuer, the Administrator and the Indenture Trustee with prior notice to
the Rating Agencies and with the written consent of the Owner Trustee and the
Control Party, for the purpose of adding any provisions to, changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of Noteholders; provided, however, that no amendment may
be made to this Agreement which would be prohibited under the proviso of Section
9.2 of the Indenture if such amendment were to be made to the Indenture unless
the consent that would have been required as described therein, if such
amendment were to be made to the Indenture, shall have been obtained;
(c) Notwithstanding Sections 13(a) and (b), the Administrator may not
amend this Agreement without the permission of the Seller, which permission
shall not be unreasonably withheld.
14. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer, the Control Party and the Owner Trustee and subject to the
satisfaction of the Rating Agency Condition in respect thereof. An assignment
with such consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator
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without the consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization executes
and delivers to the Issuer, the Owner Trustee and the Indenture Trustee an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of such assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
15. GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York, without
giving effect to any choice of law or conflict provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
16. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
17. Separate Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
18. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall for any reason
whatsoever be 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 the rights of the
holders thereof.
19. Not Applicable to Alliance Laundry Systems in Other Capacities.
Nothing in this Agreement shall affect any obligation ALS may have in any other
capacity.
20. Limitation of Liability of Owner Trustee and Indenture Trustee.
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(a) Notwithstanding anything contained herein to the contrary, this
instrument has been executed on behalf of the Issuer by Wilmington Trust
Company, not in its individual capacity but solely as Owner Trustee on behalf of
the Trust and in no event shall Wilmington Trust Company have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Issuer. For all purposes of this Agreement, in the performance
of any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of Article
VI of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by The Bank of New York, not in its individual
capacity but solely in its capacity as Indenture Trustee and in no event shall
The Bank of New York have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
21. Third-Party Beneficiary. Each of the Seller, only to the extent
provided in Section 13(c), and the Owner Trustee is a third-party beneficiary to
this Agreement and is entitled to the rights and benefits hereunder and may
enforce the provisions hereof as if it were a party hereto. The Control Party
and its successors and assigns shall be third-party beneficiaries to the
provisions of this Agreement, as it may be supplemented or amended, and shall be
entitled to rely upon and directly to enforce the provisions of this Agreement.
22. Merger and Integration. Except as specifically stated otherwise
herein, this Agreement sets forth the entire understanding of the parties
relating to the subject matter hereof, and all prior understandings, written or
oral, are superseded by this Agreement. This Agreement may not be modified,
amended, waived, or supplemented except as provided herein.
23. No Petition Covenant. The Administrator, by entering into this
Agreement, along with the Indenture Trustee pursuant to the Indenture, hereby
covenant and agree that they shall not, prior to the date which is one year and
one day after the termination of this Agreement with respect to the Issuer
pursuant to Section 11.1 of the Indenture, acquiesce, petition or otherwise
invoke or cause the Seller or the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller or the Issuer under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller or the Issuer.
24. No Recourse. It is expressly understood and agreed by the parties
hereto that (a) this Administration Agreement is executed and delivered by
Wilmington Trust Company, not individually or personally but solely as trustee
of the Issuer, in the exercise of the powers and authority conferred and vested
in it, (b) each of the representations, undertakings and agreements herein made
on the part of the Issuer is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company but is made and intended
for the purpose of binding only the Issuer, (c) nothing herein contained shall
be
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construed as creating any liability on Wilmington Trust Company, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Administration Agreement or any other
related documents.
25. No Recourse as to Indenture Trustee. It is expressly understood
and agreed by the parties hereto that (a) this Agreement is executed and
delivered by The Bank of New York, not individually or personally but solely as
indenture trustee under the Indenture and the Basic Documents, in the exercise
of the powers and authority conferred and vested in it and (b) nothing herein
contained shall be construed as creating any liability on The Bank of New York,
individually or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereto and by any Person claiming by, through or under the parties
hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
ALLIANCE LAUNDRY EQUIPMENT
RECEIVABLES TRUST 2002-A
By: WILMINGTON TRUST COMPANY, not
in its individual capacity, but
solely as Owner Trustee
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: W.▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK, as Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
ALLIANCE LAUNDRY SYSTEMS LLC, as
Administrator and as Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP, Law and Human Resources
& Secretary
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