Exhibit 10.52
TRUST AGREEMENT
BETWEEN
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES LLC
SELLER
AND
WILMINGTON TRUST COMPANY
OWNER TRUSTEE
DATED AS OF NOVEMBER 28, 2000
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS 1
1.1 Definitions 1
ARTICLE II
ORGANIZATION 1
2.1 Name 1
2.2 Office 1
2.3 Purposes and Powers 1
2.4 Appointment of Owner Trustee 2
2.5 Initial Capital Contribution of Owner Trust Estate 2
2.6 Declaration of Trust 2
2.7 Liability of the Certificateholders 3
2.8 Title to Trust Property 3
2.9 Situs of Trust 3
2.10 Representations and Warranties of the Seller 3
ARTICLE III
THE CERTIFICATES 4
3.1 Initial Certificate Ownership 4
3.2 Form of the Certificates 4
3.3 Execution, Authentication and Delivery 5
3.4 Registration; Registration of Transfer and Exchange
of Certificates 5
3.5 Mutilated, Destroyed, Lost or Stolen Certificates 6
3.6 Persons Deemed Certificateholders 7
3.7 Access to List of Certificateholders' Names
and Addresses 7
3.8 Maintenance of Corporate Trust Office 7
3.9 Appointment of Paying Agent 8
3.10 Seller as Certificateholder 8
ARTICLE IV
ACTIONS BY OWNER TRUSTEE 8
4.1 Prior Notice to Certificateholders with Respect
to Certain Matters 8
4.2 Action by Certificateholders with Respect to
Certain Matters 9
4.3 Action by Certificateholders with Respect to Bankruptcy 10
4.4 Restrictions on Certificateholders' Power 10
4.5 Majority Control 10
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES 10
5.1 Establishment of Certificate Distribution Account 10
5.2 Application of Trust Funds 11
5.3 Method of Payment 11
5.4 Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others 12
5.5 Signature on Returns; Tax Matters Partner 12
ARTICLE VI
THE OWNER TRUSTEE 12
6.1 Duties of Owner Trustee 12
6.2 Rights of Owner Trustee 13
6.3 Acceptance of Trusts and Duties 13
6.4 Action upon Instruction by Certificateholders 15
6.5 Furnishing of Documents 16
6.6 Representations and Warranties of Owner Trustee 16
6.7 Reliance; Advice of Counsel 16
6.8 Owner Trustee May Own Certificates and Notes 17
6.9 Compensation and Indemnity 17
6.10 Replacement of Owner Trustee 17
6.11 Merger or Consolidation of Owner Trustee 19
6.12 Appointment of Co-Trustee or Separate Trustee 19
6.13 Eligibility Requirements for Owner Trustee 20
ARTICLE VII
TERMINATION OF TRUST AGREEMENT 21
7.1 Termination of Trust Agreement 21
ARTICLE VIII
AMENDMENTS 22
8.1 Amendments Without Consent of Certificateholders,
Controlling Party, or Noteholders 22
8.2 Amendments With Consent of Certificateholders and
Controlling Party 22
8.3 Form of Amendments 22
ARTICLE IX
MISCELLANEOUS 23
9.1 No Legal Title to Owner Trust Estate 23
9.2 Limitations on Rights of Others 23
9.3 Notices 24
9.4 Severability 24
9.5 Counterparts 24
9.6 Successors and Assigns 24
9.7 No Petition Covenant 24
9.8 No Recourse 25
9.9 Headings 25
9.10 Governing Law 25
9.11 Certificate Transfer Restrictions 25
9.12 Administrator 25
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
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TRUST AGREEMENT, dated as of November 28, 2000 between Alliance Laundry
Equipment Receivables LLC, a Delaware limited liability company, as Seller, and
Wilmington Trust Company, a Delaware banking corporation, as Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Certain capitalized terms used in this Agreement
shall have the respective meanings assigned to them in Part I of Appendix A to
the Pooling and Servicing Agreement of even date herewith, among the Seller, the
Servicer and the Trust (as it may be amended and supplemented from time to time,
the "Pooling and Servicing Agreement"). All references herein to "the Agreement"
or "this Agreement" are to this Trust Agreement as it may be amended and
supplemented 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
Articles, Sections and subsections are to Articles, 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.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as "Alliance
Laundry Equipment Receivables Trust 2000-A" in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Certificateholders and
the Seller.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is to engage in
the following activities:
(a) to acquire, manage and hold the Loans;
(b) to issue the Notes pursuant to the Indenture and the Certificates pursuant
to this Agreement, to sell, transfer or exchange the Notes and to transfer
and exchange the Certificates;
(c) to acquire property and assets from the Seller pursuant to the Pooling and
Servicing Agreement, to make payments or distributions on the Securities
to the Securityholders, to
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make deposits into and withdrawals from the Reserve Account and other
accounts established pursuant to the Basic Documents and to pay the
organizational, start-up and transactional expenses of the Trust;
(d) to assign, grant, transfer, pledge, mortgage and convey the Trust Estate
pursuant to the terms of the Indenture and to hold, manage and distribute
to the Certificateholders pursuant to the terms of this Agreement and the
Pooling and Servicing Agreement any portion of the Trust Estate released
from the lien of, and remitted to the Trust pursuant to, the Indenture;
(e) to enter into and perform its obligations and exercise its rights under
the Basic Documents to which it is to be a party;
(f) to engage in those activities, including entering into agreements, that
are necessary, suitable, desirable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(g) subject to compliance with the Basic Documents, to engage in such other
activities as may be required in connection with conservation of the Owner
Trust Estate and the making of payments or distributions to the
Securityholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Seller hereby appoints the
Owner Trustee as trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate. The Seller
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as
of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges receipt
in trust from the Seller, as of the date hereof, of the foregoing contribution,
which shall constitute the initial Owner Trust Estate and shall be deposited in
the Certificate Distribution Account. The Seller shall pay organizational
expenses of the Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares that
it shall hold the Owner Trust Estate in trust upon and subject to the conditions
and obligations set forth herein and in the Pooling and Servicing Agreement for
the use and benefit of the Certificateholders, subject to the obligations of the
Trust under the Basic Documents. It is the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Statute, that
this Agreement constitute the governing instrument of such business trust and
that
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the Certificates represent the equity interests therein. The rights of the
Certificateholders shall be determined as set forth herein and in the Business
Trust Statute and the relationship between the parties hereto created by this
Agreement shall not constitute indebtedness for any purpose. It is the intention
of the parties hereto that, solely for purposes of federal income taxes, state
and local income and franchise taxes, and any other taxes imposed upon, measured
by, or based upon gross or net income, the Trust shall be treated as a division
or branch of the Originator. The parties agree that, unless otherwise required
by appropriate tax authorities, the Trust shall file or cause to be filed annual
or other necessary returns, reports and other forms consistent with the
characterization of the Trust as a division or branch of the Originator for such
tax purposes.
SECTION 2.7 Liability of the Certificateholders. No Certificateholder
shall have any personal liability for any liability or obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.9 Situs of Trust. The Trust shall be located and administered in
the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware.
Payments shall be received by the Trust only in Delaware or New York, and
payments and distributions shall be made by the Trust only from Delaware or New
York. The only office of the Trust shall be the Corporate Trust Office in
Delaware.
SECTION 2.10 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a limited
liability company in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted and had at all relevant times, and now has, power,
authority and legal right to acquire and own the Loans.
(b) The Seller is duly qualified to do business as a foreign limited liability
company in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualifications.
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(c) The Seller has the power and authority to execute and deliver this
Agreement and to carry out its terms, the Seller has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Issuer as part of the Trust and the Seller has duly
authorized such sale and assignment to the Issuer by all necessary
corporate action; and the execution, delivery and performance of this
Agreement have been duly authorized by the Seller by all necessary
corporate action.
(d) The consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms of this Agreement do not conflict with,
result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under, the certificate
of formation or limited liability company agreement of the Seller, or any
indenture, agreement or other instrument to which the Seller is a party or
by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the Basic
Documents), or violate any law or, to the Seller's knowledge, any order,
rule or regulation applicable to the Seller of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties.
(e) This Agreement, when duly executed and delivered, shall constitute a
legal, valid and binding obligation of the Seller enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) There are no proceedings or, to the Seller's knowledge, investigations
pending or, to the Seller's knowledge, threatened before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (i)
asserting the invalidity of this Agreement or any Certificates issued
pursuant hereto or, (ii) seeking to prevent the issuance of such
Certificates or the consummation of any of the transactions contemplated
by this Agreement or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, such Certificates
or this Agreement.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the formation of the Trust
by the contribution by the Seller pursuant to Section 2.5 and until the issuance
of the Certificates, the Seller shall be the sole beneficiary of the Trust.
SECTION 3.2 Form of the Certificates.
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The Certificates shall be substantially in the form set forth in Exhibit
A. The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of a Responsible Officer of the Owner Trustee. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be, when authenticated pursuant to Section 3.3, validly issued
and entitled to the benefits of the Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of authentication and delivery of such Certificates.
The Certificates shall be typewritten, printed, lithographed or engraved
or produced by any combination of these methods (with or without steel engraved
borders) all as determined by the officers executing such Certificates, as
evidenced by their execution of such Certificates.
The Certificates shall be issued in fully-registered form and shall be in
definitive form only. The terms of the Certificates set forth in Exhibit A shall
form part of this Agreement.
SECTION 3.3 Execution, Authentication and Delivery. Concurrently with the
sale of the Loans to the Trust pursuant to the Pooling and Servicing Agreement,
the Owner Trustee shall cause the Certificates to be executed on behalf of the
Trust, authenticated and delivered to or upon the written order of the Seller,
signed by its chief executive officer or any vice president, without further
corporate action by the Seller, in authorized denominations. No Certificate
shall entitle its holder to any benefit under this Agreement, or shall be valid
for any purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee, or a bank or trust company designated by the Owner Trustee as the
Owner Trustee's authenticating agent (the "Authentication Agent"), by manual
signature. Such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 3.4 Registration; Registration of Transfer and Exchange of
Certificates.
The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.8, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Owner Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as provided herein. The Owner Trustee shall be the
initial Certificate Registrar. Upon any resignation of a Certificate Registrar,
the Owner Trustee shall promptly appoint a successor or, if it elects not to
make such an appointment, assume the duties of Certificate Registrar.
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The initial Certificateholders may at any time, without consent of the
Noteholders, sell, transfer, convey or assign in any manner its rights to and
interests in the Certificates, provided that certain conditions are satisfied,
including: (i) such action will not result in a reduction or withdrawal of the
rating of any class of Notes, (ii) the Certificateholders provide to the Owner
Trustee and the Indenture Trustee an opinion of independent counsel that such
action will not cause the Trust to be treated as an association (or publicly
traded partnership) taxable as a corporation for Federal income tax purposes,
(iii) such transferee or assignee agrees to take positions for tax purposes
consistent with the tax positions agreed to be taken by the Certificateholders
and (iv) the conditions set forth in Section 9.11 have been satisfied. In
addition, no transfer of a Certificate shall be registered unless the transferee
shall have provided to the Owner Trustee and the Certificate Registrar an
opinion of counsel that in connection with such transfer no registration of the
Certificates is required under the Securities Act or applicable state law or
that such transfer is otherwise being made in accordance with all applicable
federal and state securities laws.
Subject to Section 3.4(b), upon surrender for registration of transfer of
any Certificate at the office or agency maintained pursuant to Section 3.8, the
Owner Trustee shall execute on behalf of the Trust, authenticate and deliver (or
shall cause the Authentication Agent to authenticate and deliver), in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent.
At the option of a Holder, Certificates may be exchanged for other
Certificates of a like aggregate percentage interest upon surrender of the
Certificates to be exchanged at the Corporate Trust Office maintained pursuant
to Section 3.8. Whenever any Certificates are so surrendered for exchange, the
Owner Trustee shall execute on behalf of the Trust, authenticate and deliver (or
shall cause the Authentication Agent to authenticate and deliver) one or more
Certificates dated the date of authentication by the Owner Trustee or any
Authentication Agent. Such Certificates shall be delivered to the Holder making
the exchange.
Every Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Holder or his attorney duly authorized in writing and such other documents
and instruments as may be required by Section 9.11. Each Certificate surrendered
for registration of transfer or exchange shall be canceled and subsequently
destroyed or otherwise disposed of by the Owner Trustee or Certificate Registrar
in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar, the Owner Trustee and the Trust such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a bona fide purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Owner Trustee shall authenticate and
deliver (or shall cause the Authentication Agent to authenticate and deliver),
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a replacement Certificate in authorized denominations of a like
amount; provided, however, that if any such destroyed, lost or stolen
Certificate, but not a mutilated Certificate, shall have become or within seven
days shall be due and payable, then instead of issuing a replacement Certificate
the Owner Trustee may pay such destroyed, lost or stolen Certificate when so due
or payable.
If, after the delivery of a replacement Certificate or distribution in
respect of a destroyed, lost or stolen Certificate pursuant to subsection
3.5(a), a bona fide purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such replacement
Certificate (or such distribution) from the Person to whom it was delivered or
any Person taking such replacement Certificate from such Person to whom such
replacement Certificate was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Owner Trustee in connection therewith.
In connection with the issuance of any replacement Certificate under this
Section 3.5, the Owner Trustee may require the payment by the Holder of such
Certificate of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Owner Trustee and the Certificate
Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.5 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of the Trust, whether
or not the mutilated, destroyed, lost or stolen Certificate shall be found at
any time or be enforced by anyone, and shall be entitled to all the benefits of
this Agreement equally and proportionately with any and all other Certificates
duly issued hereunder.
The provisions of this Section 3.5 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
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SECTION 3.6 Persons Deemed Certificateholders. Prior to due presentation
of a Certificate for registration of transfer, the Owner Trustee or the
Certificate Registrar may treat the Person in whose name any Certificate shall
be registered in the Certificate Register as the Certificateholder of such
Certificate for the purpose of receiving distributions pursuant to Article V and
for all other purposes whatsoever, and neither the Owner Trustee nor the
Certificate Registrar shall be bound by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and Addresses. The
Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Seller, within 15 days after receipt by the Owner Trustee of a request therefor
from the Servicer or the Seller in writing, a list, in such form as the Servicer
or the Seller may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. Each Holder, by receiving
and holding a Certificate, shall be deemed to have agreed not to hold any of the
Servicer, the Seller or the Owner Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.8 Maintenance of Corporate Trust Office. The Owner Trustee shall
maintain in the Borough of Manhattan, the City of New York, an office or offices
or agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates the offices of ▇▇▇▇▇▇ Trust Company, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, 19th Floor, Wall Street Plaza, New York, New York, as its principal
office for such purposes. The Owner Trustee shall give prompt written notice to
the Seller and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 3.9 Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2 and shall report the amounts of such distributions to
the Owner Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Certificate Distribution Account for the purpose of making the
distributions referred to above. The Owner Trustee may revoke such power and
remove the Paying Agent if the Owner Trustee determines in its sole discretion
that the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect. The Paying Agent shall initially be the Owner
Trustee and any co-paying agent chosen by the Owner Trustee. Wilmington Trust
Company shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Owner Trustee. Upon resignation of the Paying Agent, the Owner
Trustee shall appoint a successor to act as Paying Agent (which shall be a bank
or trust company) or, if it elects not to make such an appointment, assume the
duties of Paying Agent. The Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Owner Trustee to execute
and deliver to the Owner Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Owner Trustee that as
Paying Agent, such successor Paying Agent or additional Paying Agent shall hold
all sums, if any, held by it for distribution to the Certificateholders in trust
for
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the benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders. The Paying Agent shall return all unclaimed
funds to the Owner Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Owner Trustee. The
provisions of Sections 6.3, 6.6, 6.7, 6.8 and 6.9 shall apply to the Owner
Trustee also in its role as Paying Agent, for so long as the Owner Trustee shall
act as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
SECTION 3.10 Seller as Certificateholder. The Seller in its individual or
any other capacity may become the owner or pledgee of Certificates and may
otherwise deal with the Owner Trustee or its Affiliates as if it were not the
Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not take action with respect to the following
matters, unless (i) the Owner Trustee shall have notified the Certificateholders
in writing of the proposed action at least 30 days before the taking of such
action, and (ii) the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (other than an action
to collect on a Receivable or an action by the Indenture Trustee pursuant
to the Indenture) and the compromise of any action, claim or lawsuit
brought by or against the Trust (other than an action to collect on a
Receivable or an action by the Indenture Trustee pursuant to the
Indenture);
(b) the election by the Trust to file an amendment to the Certificate of
Trust, a conformed copy of which is attached hereto as Exhibit B;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of the Controlling Party or any Noteholder
is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of the Controlling Party or any Noteholder
is not required and such amendment materially adversely affects the
interests of the Certificateholders;
(e) the amendment, change or modification of the Administration Agreement,
except to cure any ambiguity or to amend or supplement any provision in a
manner that would not materially adversely affect the interests of the
Certificateholders;
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(f) the appointment pursuant to the Indenture of a successor Note Registrar,
Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Certificate Registrar, or the consent to the assignment by the
Note Registrar, Paying Agent or Indenture Trustee or Certificate Registrar
of its obligations under the Indenture or this Agreement, as applicable;
or
(g) the amendment of the Pooling and Servicing Agreement in circumstances
where the consent of the Controlling Party or any Noteholder is required.
SECTION 4.2 Action by Certificateholders with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the written direction of
the Certificateholder, with the consent of the Insurer so long as the Insurer is
the Controlling Party, to remove the Administrator under the Administration
Agreement pursuant to Section 10 thereof, Certificateholder, with the consent of
the Insurer so long as the Insurer is the Controlling Party, to appoint a
successor Administrator pursuant to Section 10 of the Administration Agreement,
Controlling Party, to remove the Servicer under the Pooling and Servicing
Agreement pursuant to Section 8.02 thereof Controlling Party, except as
expressly provided in the Basic Documents, to sell the Loans or any interest
therein after the termination of the Indenture, (e) Certificateholder, with the
consent of the Insurer so long as the Insurer is the Controlling Party, to
initiate any claim, suit or proceeding by the Trust or compromise any claim,
suit or proceeding brought by or against the Trust, (f) Certificateholder, with
the consent of the Insurer so long as the Insurer is the Controlling Party, to
authorize the merger, consolidation or conversion of the Trust with or into any
other business trust or entity or (g) Certificateholder, with the consent of the
Insurer so long as the Insurer is the Controlling Party, to amend the
Certificate of Trust. The Owner Trustee shall take the actions referred to in
the preceding sentence only upon written instructions signed by the
Certificateholders.
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of the
Controlling Party and the unanimous approval of the Independent Manager of the
Seller.
SECTION 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
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SECTION 4.5 Majority Control. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the
Certificateholders under this Agreement shall be effective if such action is
taken or such consent is given or withheld by the Holders of a majority of the
ownership interest in the Trust outstanding as of the close of the preceding
Distribution Date. Except as expressly provided herein, any written notice,
instruction, direction or other document of the Certificateholders delivered
pursuant to this Agreement shall be effective if signed by Holders of
Certificates evidencing not less than a majority of the ownership interest in
the Trust at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account.
The Servicer, for the benefit of the Certificateholders, shall establish
and maintain at the Wilmington Trust Company in the name of the Trust an
Eligible Deposit Account known as the Alliance Laundry Equipment Receivables
Trust 2000-A Certificate Distribution Account (the "Certificate Distribution
Account"), bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders.
The Owner Trustee shall possess all right, title and interest in and to
all funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof. Except as otherwise provided herein or in the
Pooling and Servicing Agreement, the Certificate Distribution Account shall be
under the sole dominion and control of the Owner Trustee for the benefit of the
Certificateholders. If, at any time, the Certificate Distribution Account ceases
to be an Eligible Deposit Account, the Servicer shall within 10 Business Days
(or such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall cause the Owner Trustee to transfer any cash
and/or any investments in the old Certificate Distribution Account to such new
Certificate Distribution Account.
SECTION 5.2 Application of Trust Funds.
On each Distribution Date, the Owner Trustee shall (based on the
information contained in the Servicer's Certificate delivered on the related
Determination Date) distribute to the Certificateholders, on a pro rata basis,
amounts deposited in the Certificate Distribution Account pursuant to Sections
4.07(b), 5.01(b)(i), 5.05 and 9.02(b) of the Pooling and Servicing Agreement.
On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement described in Section 4.09(a) of the Pooling and
Servicing Agreement and Section 8.2 of the Indenture.
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If any withholding tax is imposed on the Trust's distributions (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to the Certificateholder in accordance with this Section
5.2. The Owner Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to the Certificateholders sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may in its sole discretion withhold such
amounts in accordance with this subsection 5.2(c). If a Certificateholder wishes
to apply for a refund of any such withholding tax, the Owner Trustee shall
reasonably cooperate with such Certificateholder in making such claim so long as
such Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
If the Indenture Trustee holds escheated funds for payment to the Trust
pursuant to Section 3.3(e) of the Indenture, the Owner Trustee shall, upon
notice from the Indenture Trustee that such funds exist, submit on behalf of the
Trust an Issuer Order to the Indenture Trustee pursuant to Section 3.3(e) of the
Indenture instructing the Indenture Trustee to pay such funds to or at the order
of the Seller.
SECTION 5.3 Method of Payment. Subject to Section 7.1(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the related Record Date (i) by wire
transfer, in immediately available funds, to the account of such Holder at a
bank or other entity having appropriate facilities therefor or, where possible,
by intra-bank book entry credit, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Record Date and the distribution required to be made
to such Certificateholders exceeds $100,000 or (ii) by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
SECTION 5.4 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others. The Owner Trustee shall maintain (or cause to be
maintained) the books of the Trust on the basis of a fiscal year ending December
31 on the accrual method of accounting, deliver to each Certificateholder, as
may be required by the Code and applicable Treasury Regulations or otherwise,
such information as may be required to enable each Certificateholder to prepare
its federal income tax returns, file such tax returns relating to the Trust and
make such elections as may from time to time be required or appropriate under
any applicable state or federal statute or rule or regulation thereunder so as
to maintain the Trust's characterization as a division or branch of the
Originator for federal income tax purposes, cause such tax returns to be signed
in the manner required by law and collect or cause to be collected any
withholding
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tax as described in and in accordance with subsection 5.2(c) with respect to
income or distributions to Certificateholders.
SECTION 5.5 Signature on Returns; Tax Matters Partner. The Owner Trustee
shall sign on behalf of the Trust any and all tax returns of the Trust, unless
applicable law requires a Certificateholder to sign such documents, in which
case such documents shall be signed by the Seller.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of Owner Trustee.
The Owner Trustee undertakes to perform such duties, and only such duties,
as are specifically set forth in this Agreement, the Pooling and Servicing
Agreement and the other Basic Documents, including the administration of the
Trust in the interest of the Certificateholders, subject to the Basic Documents
and in accordance with the provisions of this Agreement and the Pooling and
Servicing Agreement. No implied covenants or obligations shall be read into this
Agreement, the Pooling and Servicing Agreement or any other Basic Document
against the Owner Trustee.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be liable
for the default or failure of the Administrator to carry out its obligations
under the Administration Agreement.
In the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner Trustee
and conforming to the requirements of this Agreement in determining the truth of
the statements and the correctness of the opinions contained therein; provided,
however, that the Owner Trustee shall have examined such certificates or
opinions so as to determine compliance of the same with the requirements of this
Agreement.
The Owner Trustee may not be relieved from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misconduct, except that:
(a) this subsection 6.1(d) shall not limit the effect of subsection 6.1(a) or
(b);
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(b) the Owner Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the Owner
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Owner Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by
it pursuant to Section 4.1, 4.2 or 6.4.
Subject to Sections 5.1 and 5.2, monies received by the Owner Trustee
hereunder need not be segregated in any manner except to the extent required by
law or the Pooling and Servicing Agreement and may be deposited under such
general conditions as may be prescribed by law, and the Owner Trustee shall not
be liable for any interest thereon.
The Owner Trustee shall not take any action that (i) is inconsistent with
the purposes of the Trust set forth in Section 2.3 or (ii) would, to the actual
knowledge of a Responsible Officer of the Owner Trustee, result in the Trust's
becoming taxable as a corporation for federal income tax purposes.
The Certificateholders shall not direct the Owner Trustee to take action
that would violate the provisions of this Section 6.1.
SECTION 6.2 Rights of Owner Trustee. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party, in such form as the Seller shall approve as
evidenced conclusively by the Owner Trustee's execution thereof. In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action as the
Administrator recommends with respect to the Basic Documents.
SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise provided
in this Article VI, in accepting the trusts hereby created, Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this Agreement.
The Owner Trustee shall not be liable or accountable hereunder or under any
Basic Document under any circumstances, except for its own negligent action, its
own negligent failure to act or its own willful misconduct or in the case of the
inaccuracy of any representation or warranty contained in Section 6.6 and
expressly made by the
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Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any responsibility or liability
for or with respect to the legality, validity and enforceability of any
Loan or the perfection and priority of any security interest created by
any Loan in any Equipment or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Owner Trust
Estate or its ability to generate the distributions and payments to be
made to Certificateholders under this Agreement or to Noteholders under
the Indenture, including, without limitation: the existence, condition and
ownership of any Equipment; the existence and enforceability of any
insurance thereon; the existence and contents of any Loan on any computer
or other record thereof; the validity of the assignment of any Loan to the
Trust or of any intervening assignment; the completeness of any Loan; the
performance or enforcement of any Loan; the compliance by the Seller or
the Servicer with any warranty or representation made under any Basic
Document or in any related document or the accuracy of any such warranty
or representation or any action of the Administrator, the Trustee or the
Servicer or any subservicer taken in the name of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in accordance with the instructions of the
Administrator or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or
under any Basic Document, if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured or provided to
it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness
evidenced by or arising under any of the Basic Documents, including the
principal of and interest on the Notes or any amounts payable with respect
to the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of and makes
no representation as to the validity or sufficiency of any provision of
this Agreement or for the due execution hereof by the Seller or for the
form, character, genuineness, sufficiency, value or validity of any of the
Owner Trust Estate or for or in respect of the validity or sufficiency of
the Basic Documents, the Notes, the Certificates (other than the
certificate of authentication on the Certificates) or of any Loans or any
related documents, and the Owner Trustee shall in no event assume or incur
any liability, duty or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the
Basic Documents;
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(f) the Owner Trustee shall not be liable for the default or misconduct of the
Administrator, the Indenture Trustee, the Seller or the Servicer under any
of the Basic Documents or otherwise and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust under this
Agreement or the Basic Documents that are required to be performed by the
Administrator under the Administration Agreement, the Indenture Trustee
under the Indenture, the Servicer under the Pooling and Servicing
Agreement or the Originator under the Purchase Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation under this Agreement or otherwise or in relation
to this Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders
have offered to the Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the
Owner Trustee therein or thereby. The right of the Owner Trustee to
perform any discretionary act enumerated in this Agreement or in any Basic
Document shall not be construed as a duty, and the Owner Trustee shall not
be answerable for other than its negligence or willful misconduct in the
performance of any such act.
SECTION 6.4 Action upon Instruction by Certificateholders.
Subject to Section 4.4, the Certificateholders may by written instruction
direct the Owner Trustee in the management of the Trust. Such direction may be
exercised at any time by written instruction of the Certificateholders pursuant
to Section 4.5.
Notwithstanding the foregoing, the Owner Trustee shall not be required to
take any action hereunder or under any Basic Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any Basic Document or is otherwise contrary
to law.
Whenever the Owner Trustee is unable to decide between alternative courses
of action permitted or required by the terms of this Agreement or any Basic
Document, or is unsure as to the application, intent, interpretation or meaning
of any provision of this Agreement or the Basic Documents, the Owner Trustee
shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction as to the course
of action to be adopted, and, to the extent the Owner Trustee acts in good faith
in accordance with any such instruction received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instructions within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action which is consistent, in its view, with
17
this Agreement or the Basic Documents, and as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for any such action or inaction.
SECTION 6.5 Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 6.6 Representations and Warranties of Owner Trustee. The Owner
Trustee hereby represents and warrants to the Seller, for the benefit of the
Certificateholders, that:
(a) It is a Delaware banking corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation. The
eligibility requirements set forth in Section 6.13 (a) - (c) are satisfied
with respect to it.
(b) It has full power, authority and legal right to execute, deliver and
perform this Agreement, and has taken all necessary action to authorize
the execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this Agreement (i) shall
not violate any provision of any law or regulation governing the banking
and trust powers of the Owner Trustee or any order, writ, judgment or
decree of any court, arbitrator or governmental authority applicable to
the Owner Trustee or any of its assets, (ii) shall not violate any
provision of the corporate charter or by-laws of the Owner Trustee, or
(iii) shall not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust pursuant to
the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have a materially adverse effect on the Owner
Trustee's performance or ability to perform its duties as Owner Trustee
under this Agreement or on the transactions contemplated in this
Agreement.
(d) The execution, delivery and performance by the Owner Trustee of this
Agreement shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency
regulating the corporate trust activities of it.
(e) This Agreement has been duly executed and delivered by the Owner Trustee
and constitutes the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
or other similar laws affecting the enforcement of creditors'
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rights in general and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at
law.
SECTION 6.7 Reliance; Advice of Counsel.
The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties and need not
investigate any fact or matter in any such document. The Owner Trustee may
accept a certified copy of a resolution of the board of directors or other
governing body of any entity as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and effect. As
to any fact or matter the method of the determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the chief executive officer, or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee: may act directly or through its agents, attorneys,
custodians or nominees pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents, attorneys, custodians or nominees if such agents, attorneys, custodians
or nominees shall have been selected by the Owner Trustee with reasonable care;
and may consult with counsel, accountants and other skilled professionals to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the opinion or advice of any such counsel, accountants or other such
Persons and not contrary to this Agreement or any Basic Document.
SECTION 6.8 Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Seller, the Administrator, the
Indenture Trustee and the Servicer in transactions in the same manner as it
would have if it were not the Owner Trustee.
SECTION 6.9 Compensation and Indemnity. The Owner Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed
upon before the date hereof between the Seller and the Owner Trustee, and the
Owner Trustee shall be entitled to be reimbursed by the Servicer for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, custodians, nominees, representatives, experts
and counsel as the Owner Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder. The Servicer shall indemnify
the Owner Trustee and its successors, assigns, agents and servants in accordance
with the
19
provisions of Section 7.01 of the Pooling and Servicing Agreement. The
compensation and indemnities described in this Section 6.9 shall survive the
resignation or termination of the Owner Trustee or the termination of this
Agreement. Any amounts paid to the Owner Trustee pursuant to this Article VI
shall be deemed not to be a part of the Owner Trust Estate immediately after
such payment.
SECTION 6.10 Replacement of Owner Trustee.
The Owner Trustee may give notice of its intent to resign and be
discharged from the trusts hereby created by written notice thereof to the
Administrator; provided that no such resignation shall become effective, and the
Owner Trustee shall not resign, prior to the time set forth in Section 6.10(c).
The Administrator may appoint a successor Owner Trustee by delivering a written
instrument, in duplicate, to the resigning Owner Trustee and the successor Owner
Trustee. If no successor Owner Trustee shall have been appointed and have
accepted appointment within 30 days after the giving of such notice, the
resigning Owner Trustee giving such notice may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee. The Administrator
shall remove the Owner Trustee if:
(a) the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 6.13 and shall fail to resign after written request
therefor by the Administrator;
(b) the Owner Trustee shall be adjudged bankrupt or insolvent;
(c) a receiver or other public officer shall be appointed or take charge or
control of the Owner Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation; or
(d) the Owner Trustee shall otherwise be incapable of acting.
If the Owner Trustee gives notice of its intent to resign or is removed or
if a vacancy exists in the office of Owner Trustee for any reason, the
Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate (one copy of which instrument shall be delivered to the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee)
and shall pay all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 6.10
shall not become effective and no such resignation shall be deemed to have
occurred until a written acceptance of appointment is delivered by the successor
Owner Trustee to the outgoing Owner Trustee and the Administrator, all fees and
expenses due to the outgoing Owner Trustee are paid and, if the Insurer is the
Controlling Party, such successor Owner Trustee is reasonably acceptable to the
Controlling Party. Any successor Owner Trustee appointed pursuant to this
Section 6.10 shall be eligible to act in such capacity in accordance with
Section 6.13 and, following compliance
20
with the preceding sentence, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under this Agreement, with
like effect as if originally named as Owner Trustee. The Administrator shall
provide notice of such resignation or removal of the Owner Trustee to each of
the Rating Agencies.
The predecessor Owner Trustee shall upon payment of its fees and expenses
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Agreement. The Administrator and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 6.10, the Administrator shall mail notice of the successor of such
Owner Trustee to all Certificateholders, the Indenture Trustee, the Insurer, the
Noteholders and the Rating Agencies.
SECTION 6.11 Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirement of any jurisdiction in which any
part of the Owner Trust Estate or any Financed Vehicle may at the time be
located, the Administrator and the Owner Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or as separate trustee or trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 6.12, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 6.13 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 6.10.
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Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed upon the
Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to
act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally liable by reason of
any act or omission of any other trustee under this Agreement (unless such
other trustee acts or fails to act at the direction of such first
trustee); and
(c) the Administrator and the Owner Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
SECTION 6.13 Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times: (a) be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; (b) be authorized to exercise corporate
trust powers; (c) have a combined capital and surplus of at least $50,000,000
and be subject to supervision or examination by federal or
22
state authorities; and (d) have a long-term unsecured debt rating of at least
Baa3 by ▇▇▇▇▇'▇ Investors Service or be otherwise satisfactory to ▇▇▇▇▇'▇
Investors Service. If such corporation shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section 6.13,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.13, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 Termination of Trust Agreement.
This Agreement (other than Section 6.9) and the Trust shall terminate and
be of no further force or effect on the final distribution by the Owner Trustee
of all monies or other property or proceeds of the Owner Trust Estate in
accordance with the terms of the Indenture, the Pooling and Servicing Agreement
(including the exercise by the Servicer of its option to purchase the Loans
pursuant to Section 9.01 of the Pooling and Servicing Agreement) and Article V.
The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or the Owner Trust
Estate nor (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
Except as provided in Section 7.1(a), neither the Seller nor any
Certificateholder shall be entitled to revoke or terminate the Trust or this
Agreement.
Notice of any termination of the Trust specifying the Distribution Date
upon which the Certificateholders shall surrender their Certificates to the
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Paying Agent by letter to Certificateholders mailed within five
Business Days of receipt of notice of termination of the Pooling and Servicing
Agreement from the Servicer given pursuant to Section 9.02(b) of the Pooling and
Servicing Agreement, stating: (i) the Distribution Date upon or with respect to
which the final distribution on the Certificates shall be made upon presentation
and surrender of the Certificates at the office of the Paying Agent; (ii) the
amount of any such final distribution; and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office of the
Paying Agent therein specified. The Paying Agent shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at
the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates, the Paying Agent
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shall cause to be distributed to Certificateholders amounts distributable on
such Distribution Date pursuant to Section 5.2.
If all of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the date specified in the written
notice specified in Section 7.1(c), the Owner Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Subject to applicable laws with respect to
escheat of funds, any funds remaining in the Trust after exhaustion of such
remedies in the preceding sentence shall be deemed property of the Seller and
distributed by the Owner Trustee to the Seller.
Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be canceled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Business Trust Statute.
(f) Within sixty days of the later of (i) the cancellation of all of the
Certificates pursuant to Section 7.1(c) or Section 7.1(d), or (ii) payment to
the Seller of funds remaining in the Trust pursuant to Section 7.1(d), the Owner
Trustee shall provide each of the Rating Agencies with written notice stating
that all Certificates have been so canceled or such funds have been so paid to
the Seller.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of Certificateholders, Controlling
Party, or Noteholders. This Agreement may be amended by the Seller and the Owner
Trustee without the consent of any of the Noteholders, Controlling Party or the
Certificateholders (but with prior notice to each of the Rating Agencies) to (i)
cure any ambiguity, (ii) correct or supplement any provision in this Agreement
that may be defective or inconsistent with any other provision in this Agreement
or any other Basic Document, (iii) add to the covenants, restrictions or
obligations of the Seller or the Owner Trustee, (iv) evidence and provide for
the acceptance of the appointment of a successor trustee with respect to the
Owner Trust Estate and add to or change any provisions as shall be necessary to
facilitate the administration of the trusts hereunder by more than one trustee
pursuant to Article VI, or (v) add, change or eliminate any other provision of
this Agreement in any manner that shall not, as evidenced by an Officer's
Certificate, adversely affect in any material respect the interests of the
Noteholders, Insurer or the Certificateholders.
24
SECTION 8.2 Amendments With Consent of Certificateholders and Controlling
Party. This Agreement may also be amended from time to time by the Seller and
the Owner Trustee with the consent of Controlling Party as of the close of
business on the preceding Distribution Date and the consent of the Holders of
Certificates evidencing not less than a majority of the ownership interests in
the Trust as of the close of business on the preceding Distribution Date (which
consent, whether given pursuant to this Section 8.2 or pursuant to any other
provision of this Agreement, shall be conclusive and binding on such Person and
on the Insurer, all future holders of such Notes or Certificates and of any
Notes or Certificates issued upon the transfer thereof or in exchange thereof or
in lieu thereof whether or not notation of such consent is made upon the Notes
or Certificates) 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 Insurer, the Noteholders or the
Certificateholders; provided, however, that no such 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 therein, if such amendment were to be made to the
Indenture, shall have been obtained.
SECTION 8.3 Form of Amendments.
Promptly after the execution of any amendment, supplement or consent
pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder, the Insurer and the Indenture Trustee.
It shall not be necessary for the consent of Certificateholders, the
Insurer, the Noteholders or the Indenture Trustee pursuant to Section 8.2 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 any other consents of Certificateholders provided
for in this Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by the Insurer, Certificateholders and
Noteholders shall be subject to such reasonable requirements as the Owner
Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Officer's Certificate stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent to
such execution have been satisfied. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
25
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 No Legal Title to Owner Trust Estate. The Certificateholders
shall not have legal title to any part of the Owner Trust Estate. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided ownership interest therein only in accordance with Articles V
and VII. No transfer, by operation of law or otherwise, of any right, title, and
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
SECTION 9.2 Limitations on Rights of Others. Except for Section 9.12 and
as otherwise provided herein, the provisions of this Agreement are solely for
the benefit of the Owner Trustee, the Seller, the Certificateholders, the
Administrator and, to the extent expressly provided herein, the Insurer, the
Indenture Trustee and the Noteholders, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein. This Agreement shall also inure to the benefit of the Insurer so long as
the Insurer is the Controlling Party. Without limiting the generality of the
foregoing, all covenants and agreements in this Agreement which confer rights
upon the Insurer shall be for the benefit of and run directly to the Insurer,
and the Insurer shall be entitled to rely on and enforce such covenants,
subject, however, to the limitations on such rights provided in this Agreement
and the Basic Documents. The Insurer may disclaim any of its rights and powers
under this Agreement (but not its duties and obligations under the Policy) upon
delivery of a written notice to the Trust.
With respect to the Insurer, the Owner Trustee undertakes to perform or
observe only such of the covenants and obligations of the Owner Trustee as are
expressly set forth in this Agreement, and no implied covenants or obligations
with respect to the Insurer shall be read into this Agreement or the other Basic
Documents against the Owner Trustee. The Owner Trustee shall not be deemed to
owe any fiduciary duty to the Insurer, and shall not be liable to any such
person for the failure of the Trust to perform its obligations to such persons
other than as a result of the gross negligence or willful misconduct of the
Owner Trustee in the performance of its express obligations under this
Agreement.
SECTION 9.3 Notices. All demands, notices and communications upon or to
the Seller, the Servicer, the Administrator, the Indenture Trustee, the Owner
Trustee, the Insurer, the Rating Agencies or any Certificateholder under this
Agreement shall be delivered as specified in Appendix B to the Pooling and
Servicing Agreement.
SECTION 9.4 Severability. If any 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
enforceable to the fullest extent permitted, and if not so permitted, shall be
deemed severable from the remaining covenants,
26
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
Certificates or the rights of the holders thereof.
SECTION 9.5 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts (and by different parties on separate
counterparts), each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument.
SECTION 9.6 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Seller, the Owner
Trustee and each Certificateholder and their respective successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by a Certificateholder shall bind the successors
and assigns of such Certificateholder.
SECTION 9.7 No Petition Covenant. Notwithstanding any prior termination of
this Agreement, the Trust (or the Owner Trustee on behalf of the Trust), and
each Certificateholder, by accepting a Certificate (or interest therein), 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 acquiesce, petition or otherwise
invoke or cause the Seller to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Seller
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 any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller.
SECTION 9.8 No Recourse. Each Certificateholder by accepting a Certificate
(or interest therein) acknowledges that such Person's Certificate (or interest
therein) represents beneficial interests in the Trust only and does not
represent interests in or obligations of the Seller, the Servicer, the
Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate thereof
and no recourse, either directly or indirectly, may be had against such parties
or their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificates or the Basic Documents. Except as expressly provided
in the Basic Documents, neither the Seller, the Servicer nor the Owner Trustee
in their respective individual capacities, nor any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns,
shall be personally liable for, nor shall recourse be had to any of them for,
the distribution of any amount with respect to the Certificates, or the Owner
Trustee's performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Certificates or this Agreement,
it being expressly understood that said covenants and obligations have been made
by the Owner Trustee solely in its capacity as the Owner Trustee. Each
Certificateholder by the acceptance of a Certificate (or beneficial interest
therein) shall agree that, except as expressly provided in the Basic Documents,
in the case of nonpayment of any
27
amounts with respect to the Certificates, it shall have no claim against any of
the foregoing for any deficiency, loss or claim therefrom.
SECTION 9.9 Headings. The headings of the various Articles and Sections
herein are for purposes of reference only and shall not affect the meaning or
interpretation of any provision hereof.
SECTION 9.10 Governing Law. This Agreement shall be construed in
accordance with the internal laws of the State of Delaware, without reference to
its conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 9.11 Certificate Transfer Restrictions. The Certificates may not
be acquired by or for the account of an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, a
plan described in Section 4975(e)(1) of the Code or any entity whose underlying
assets include plan assets by reason of a plan's investment in the entity (each,
a "Benefit Plan"). By accepting and holding a Certificate, the Holder thereof
shall be deemed to have represented and warranted that it is not a Benefit Plan.
SECTION 9.12 Administrator. The Administrator is authorized to execute on
behalf of the Trust all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Trust to prepare, file
or deliver pursuant to the Basic Documents. Upon request, the Owner Trustee
shall execute and deliver to the Administrator a power of attorney appointing
the Administrator its agent and attorney-in-fact to execute all such documents,
reports, filings, instruments, certificates and opinions.
28
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY
as Owner Trustee
By:
Name:
Title:
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES
LLC, as Seller
By:
Name:
Title:
Acknowledged and Accepted:
ALLIANCE LAUNDRY SYSTEMS LLC,
as Servicer
By:
Name:
Title:
1
EXHIBIT A
NUMBER
R-1
OWNERSHIP INTEREST: 100%
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (i) AN
"EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT IS
SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN DESCRIBED IN
SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS
BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING
THIS CERTIFICATE, THE HOLDER HEREOF AND THE CERTIFICATE OWNER SHALL EACH
BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A BENEFIT PLAN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED ON NOVEMBER 28, 2000, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION FROM REGISTRATION THEREUNDER.
Alliance Laundry Equipment Receivables Trust 2000-A
CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of commercial loans evidenced by
notes secured by, commercial laundry equipment manufactured by Alliance
Laundry Systems LLC and others, which loans have been sold to the Trust by
Alliance Laundry Equipment Receivables LLC.
(This Certificate does not represent an interest in or obligation of
Alliance Laundry Equipment Receivables LLC, Alliance Laundry Systems LLC,
the Owner Trustee or any of their respective affiliates, except to the
extent described below.)
2
THIS CERTIFIES THAT Alliance Laundry Equipment Receivables LLC is
the registered owner of a nonassessable, fully-paid, fractional undivided
interest in Alliance Laundry Equipment Receivables Trust 2000-A (the "Trust").
The Trust was created pursuant to a trust agreement, dated as of
November 28, 2000 and as further amended, restated or supplemented from time to
time, the "Trust Agreement"), between the Seller and Wilmington Trust Company,
as owner trustee (the "Owner Trustee"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Trust Agreement.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, the terms of which are
incorporated herein by reference and made a part hereof, to which Trust
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Holder of this Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Certificate are subordinated
to the rights of the Noteholders and Insurer as and to the extent described in
the Pooling and Servicing Agreement and the Indenture.
Each Certificateholder with respect to a Certificate, by its
acceptance of a Certificate, covenants and agrees that such Certificateholder
with respect to a Certificate, shall not, prior to the date which is one year
and one day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Seller to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller under any federal or state bankruptcy, insolvency,
reorganization or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller.
Distributions on this Certificate shall be made as provided in the
Trust Agreement by the Owner Trustee by wire transfer, check mailed or, where
possible, intra-bank book entry to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate shall be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office maintained for such purpose by the Owner Trustee at
the ▇▇▇▇▇▇ Trust Company, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
3
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee by manual signature, this
Certificate shall not entitle the Holder hereof to any benefit under the Trust
Agreement or the Pooling and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
4
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Certificate to be duly executed.
Dated: November__, 2000
ALLIANCE LAUNDRY EQUIPMENT
RECEIVABLES TRUST 2000-A
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee
By:
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY [WILMINGTON TRUST COMPANY
not in its individual not in its individual
capacity but solely capacity but solely
as Owner Trustee [OR] as Owner Trustee
by __________________________________,
as Authenticating Agent
By:_________________________
Authorized Officer By: __________________________________
Authorized Officer]
5
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest
in, the Seller, the Servicer, the Indenture Trustee, the Owner Trustee or any
affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Trust Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections and recoveries with respect to the Loans (and
certain other amounts), all as more specifically set forth herein and in the
Trust Agreement and the Pooling and Servicing Agreement. A copy of each of the
Pooling and Servicing Agreement and the Trust Agreement may be examined during
normal business hours at the principal office of the Seller, and at such other
places, if any, designated by the Seller, by any Certificateholder upon written
request.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholders under the
Trust Agreement at any time by the Seller and the Owner Trustee with the consent
of (i) the Controlling Party, and (ii) Certificateholders whose Certificates
evidence not less than a majority of the ownership interest in the Trust, each
as of the close of the preceding Distribution Date. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and on
all future Holders of this Certificate and of any Certificate issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Trust
Agreement also permits the amendment thereof, in certain circumstances, without
the consent of the Controlling Party, the Holders of any of the Certificates or
the Notes.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee at the ▇▇▇▇▇▇ Trust Company, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 19th Floor,
Wall Street Plaza, New York, New York, accompanied by (i) a written instrument
of transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing and (ii) certain opinions required by Section 3.4 of the
Trust Agreement, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be issued
to the designated transferee. The initial Certificate Registrar appointed under
the Trust Agreement is Wilmington Trust Company.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Registrar or any such agent shall be affected
by any notice to the contrary.
6
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Trust Agreement and the Pooling and Servicing Agreement and the disposition
of all property held as part of the Trust.
7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated: _____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
1
EXHIBIT B
CERTIFICATE OF TRUST OF
Alliance Laundry Equipment Receivables Trust 2000-A
THIS Certificate of Trust of Alliance Laundry Equipment Receivables
Trust 2000-A (the "Trust"), is being duly executed and filed on behalf of the
Trust by the undersigned, as trustee, to form a business trust under the
Delaware Business Trust Act (12 Del. C. ss.3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate
of Trust is Alliance Laundry Equipment Receivables Trust 2000-A.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is WILMINGTON TRUST COMPANY, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇/▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trustee
Administration.
3. This Certificate of Trust shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as trustee of
the Trust.
By: _______________________________
Name:
Title:
1