EXECUTION COPY
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EXHIBIT 10.72
NOTE PURCHASE AGREEMENT
Dated as of November 26, 2002
among
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES TRUST 2002-A,
Issuer,
THE BANK OF NEW YORK,
as Indenture Trustee
ALLIANCE LAUNDRY SYSTEMS LLC,
as the Servicer,
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES 2002 LLC,
as the Transferor,
THE NOTE PURCHASERS PARTY HERETO,
BEAR ▇▇▇▇▇▇▇ & CO. INC.,
as Co-Administrative Agent,
CANADIAN IMPERIAL BANK OF COMMERCE,
as a
Co-Administrative Agent and an Agent,
and
THE OTHER AGENTS PARTY HERETO
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Relating to
Alliance Laundry Equipment Receivables Trust 2002-A
Equipment Loan Notes
Receivables Notes
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TABLE OF CONTENTS
Page
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ARTICLE 1 - DEFINITIONS.......................................................2
1.1 Definitions....................................................2
1.2 Other Definitional Provisions.................................10
ARTICLE 2 - AMOUNT AND TERMS OF COMMITMENTS..................................11
2.1 Purchases.....................................................11
2.2 Interest, Fees, Expenses, Payments, Etc.......................13
2.3 Requirements of Law...........................................15
2.4 Taxes.........................................................17
2.5 Indemnification...............................................21
2.6 Expenses, etc.................................................24
2.7 Deliveries by Note Purchasers.................................24
ARTICLE 3 - CONDITIONS PRECEDENT.............................................25
3.1 Conditions to Initial Purchase................................25
3.2 Condition to Additional Purchases.............................27
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES...................................29
4.1 Representations and Warranties of the Issuer..................29
4.2 Representations and Warranties of the Transferor and the
Servicer ..................................................29
4.3 Representations and Warranties of the Note Purchasers.........29
ARTICLE 5 - COVENANTS........................................................30
5.1 Covenants.....................................................30
ARTICLE 6 - THE NOTE AGENTS..................................................31
6.1 Authorization and Action of the Note Agents...................31
6.2 Note Agent's Reliance, Etc....................................33
6.3 Credit Decision...............................................34
6.4 Indemnification of each Note Agent............................34
6.5 Agents in their Individual Capacity...........................35
6.6 Successor Co-Administrative Agent; Successor Agent............35
6.7 Payments by an Agent..........................................36
ARTICLE 7 - SECURITIES LAWS; TRANSFERS.......................................36
7.1 Transfers of Notes............................................36
7.2 Tax Characterization..........................................42
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TABLE OF CONTENTS
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ARTICLE 8 - MISCELLANEOUS....................................................42
8.1 Amendments and Waivers........................................42
8.2 Notices.......................................................43
8.3 No Waiver; Cumulative Remedies................................46
8.4 Successors and Assigns........................................46
8.5 Successors to Servicer........................................46
8.6 Counterparts..................................................47
8.7 Severability..................................................47
8.8 Integration...................................................47
8.9 Governing.....................................................47
8.10 Jurisdiction; Consent to Service of Process...................47
8.11 Termination...................................................48
8.12 Limited Recourse; No Proceedings..............................48
8.13 Survival of Representations and Warranties....................49
8.14 Effect of Regulatory Change...................................49
8.15 Waiver of July Trial..........................................49
8.16 Excess Funds..................................................49
Schedule I Completion of Information and Signatures for Transfer Supplement
Schedule II List of Investing Offices, Addresses for Notices, Assigned
Interests and Purchase and Liquidity Percentages
Schedule III Form of Transfer Effective Notice
Exhibit A Form of Transfer Supplement
Exhibit B Form Of Equipment Loan Advance Increase Notice
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NOTE PURCHASE AGREEMENT, dated as of November 26, 2002, by and among
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES TRUST 2002-A, a Delaware statutory trust
(together with its successors and assigns, the "Issuer"), THE BANK OF NEW YORK,
a New York banking corporation, as trustee (the "Indenture Trustee"), ALLIANCE
LAUNDRY SYSTEMS LLC, a Delaware limited liability company ("ALS"), individually
and as the Servicer, ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES 2002 LLC, a Delaware
limited liability company ("Alliance Equipment Receivables"), as the Transferor
(the "Transferor"), the NOTE PURCHASERS (as hereinafter defined) from time to
time party hereto, the AGENTS for the Purchaser Groups from time to time party
hereto (each such party, together with their respective successors in such
capacity, an "Agent"), and BEAR ▇▇▇▇▇▇▇ & CO. INC. ("Bear ▇▇▇▇▇▇▇"), as an
administrative agent for the Note Purchasers, CANADIAN IMPERIAL BANK OF COMMERCE
("CIBC"), as an administrative agent for the Note Purchasers, (together with
Bear ▇▇▇▇▇▇▇ and their successors in such capacity, the "Co-Administrative
Agents" and each a "Co-Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Issuer, the Servicer and the Transferor are parties to
that certain Pooling and Servicing Agreement, dated as of November 26, 2002 (as
the same may from time to time be amended or otherwise modified, the "Pooling
and Servicing Agreement") pursuant to which, among other things, the Transferor
has assigned, transferred and conveyed, and has agreed to assign, transfer and
convey, its right, title and interest in, to and under certain Equipment Loans
and Receivables (as defined therein) to the Issuer, and the Servicer has agreed
to service such Equipment Loans and Receivables;
WHEREAS, the Issuer and The Bank of New York, as trustee (together
with its successors in such capacity, the "Indenture Trustee"), are parties to
that certain Indenture, dated as of November 26, 2002 (as the same may from time
to time be amended or otherwise modified, the "Indenture");
WHEREAS, the Issuer proposes to issue its Equipment Loan Notes (the
"Equipment Loan Notes") pursuant to the Indenture;
WHEREAS, the Issuer also proposes to issue its Receivables Notes (the
"Receivables Notes") pursuant to the Indenture;
WHEREAS, the Equipment Loan Note Purchasers are willing to purchase
the Equipment Loan Notes in the amount of the Equipment Loan Initial Advance on
the Closing Date and from time to time thereafter to purchase Equipment Loan
Advance Increases on the terms and conditions provided for herein;
WHEREAS, the Receivables Note Purchasers are willing to purchase the
Receivables Notes in the amount of the Receivables Initial Advance on the
Closing Date and from time to time thereafter to purchase Receivables Advance
Increases on the terms and conditions provided for herein;
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NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby expressly acknowledged, the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
1.1 Definitions. All capitalized terms used herein as defined terms
and not defined herein shall have the meanings given to them in Part I of
Appendix A to the Pooling and Servicing Agreement, as in effect on the date of
this Agreement and as they may be amended or otherwise modified from time to
time with the consent of the Required Equipment Loan Note Owners, the Required
Equipment Loan Note Purchasers, the Required Receivables Note Owners, the
Required Receivables Note Purchasers and the Co-Administrative Agents.
"Additional Amounts" shall mean on any date of determination, any
amounts then due and payable by the Issuer (determined without regard to
limitations on the sources of payment thereof) pursuant to this Agreement, other
than Equipment Loan Monthly Interest the Equipment Loan Note Principal Balance,
Receivables Monthly Interest and the Receivables Note Principal Balance.
"Adjusted Commitment" shall mean on any date of determination, (i)
with respect to a CPC Committed Purchaser, such CPC Committed Purchaser's
Commitment minus the aggregate outstanding principal amount of its Support
Advances to its related CP Conduit or (ii) with respect to a Committed Purchaser
that is not a CPC Committed Purchaser, such Committed Purchaser's Commitment.
"Advance Increase Notice" shall mean a notice delivered by the Issuer
to each Agent and the Indenture Trustee pursuant to Section 2.1(c) requesting an
Equipment Loan Advance Increase or a Receivables Advance Increase with the most
recently delivered Borrowing Base Certificate attached thereto.
"Affected Party" shall mean, with respect to any CP Conduit, any
Support Party of such CP Conduit.
"Agent" has the meaning specified in the preamble to this Agreement.
"Agreement" shall mean this Note Purchase Agreement, as amended,
supplemented or otherwise modified from time to time.
"Alliance Equipment Receivables" has the meaning specified in the
preamble to this Agreement.
"ALS" has the meaning specified in the preamble to this Agreement.
"Applicable Margin Fee Letter" has the meaning specified in the
Pooling and Servicing Agreement.
"Assignee" and "Assignment" have the respective meanings specified in
subsection 7.1(e).
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"Bear ▇▇▇▇▇▇▇" has the meaning specified in the preamble to this
Agreement.
"CIBC" has the meaning specified in the preamble to this Agreement.
"Closing Date" shall mean December 3, 2002.
"Co-Administrative Agent" has the meaning specified in the preamble to
this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean, for any Committed Purchaser, the maximum
amount of such Note Purchaser's commitment to purchase a portion of
the Equipment Loan Note Principal Balance or Receivables Note Principal Balance,
as applicable, as set forth on the signature pages hereto or the Transfer
Supplement by which such Committed Purchaser became a party to this Agreement or
assumed the Commitment (or a portion thereof) of another Note Purchaser pursuant
to Transfer Supplement(s) executed by such Purchaser and its Assignee(s) and
delivered pursuant to Section 7.1. In the event that a Note Purchaser is a CPC
Committed Purchaser which maintains a portion of its Commitment hereunder in
relation to more than one CP Conduit, such Note Purchaser shall be deemed to
hold separate Commitments hereunder in each such capacity, and in the event that
a Note Purchaser is both an Equipment Loan Note Purchaser and a Receivables Note
Purchaser, such Note Purchaser shall be deemed to hold separate Commitments
hereunder in each such capacity.
"Committed Purchaser" shall mean each Note Purchaser identified as a
Committed Purchaser on the signature pages hereto or in the Transfer Supplement
pursuant to which such Note Purchaser, and any Assignee of such Note Purchaser
to the extent such Assignee has assumed, pursuant to a Transfer Supplement, the
Commitment of such Note Purchaser.
"Conduit Assignee" means any commercial paper conduit designated by a
CP Conduit from time to time to accept an assignment from such CP Conduit of all
or a portion of its Percentage Interest.
"Consented Transferee Letter" shall mean the letter, dated as of the
date of this Agreement and referring to this Agreement (or any replacement
therefor from time to time in effect), from the Transferor, consented to by the
Control Party, and to and accepted by, each Co-Administrative Agent, as such
letter may be amended or otherwise modified from time to time by the Transferor
with the consent of each Co-Administrative Agent and the Insurer (if the Insurer
is then the Control Party).
"CP Conduit" shall mean any Note Purchaser which is designated as a CP
Conduit on the signature pages hereto or in the Transfer Supplement pursuant to
which it became a party to this Agreement.
"CPC Committed Purchaser" shall mean, with respect to a CP Conduit,
each Note Purchaser identified as a Committed Purchaser for such CP Conduit on
the signature pages hereto or in the Transfer Supplement pursuant to which such
CP Conduit became a party hereto,
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and any Assignee of such Note Purchaser to the extent such Assignee has assumed,
pursuant to a Transfer Supplement, the Commitment of such Note Purchaser.
"Downgraded Purchaser" has the meaning specified in subsection 7.1(j).
"Equipment Loan Advance Increase" shall mean the amount of each
Advance made on the Equipment Loan Notes on each Equipment Loan Borrowing Date.
"Equipment Loan Borrowing Date" shall mean each date on which an
Equipment Loan Advance Increase occurs.
"Equipment Loan Facility Limit" shall mean, for any day, $300,000,000,
minus the Receivables Note Principal Balance on such day.
"Equipment Loan Initial Advance" shall mean the amount of the Advance
made on the Equipment Loan Notes on the Closing Date.
"Equipment Loan Monthly Interest" shall mean, for any Distribution
Date, the Equipment Loan Monthly Interest and Fees for the Interest Period ended
on the day preceding such Distribution Date.
"Equipment Loan Monthly Interest and Fees" shall mean, for any
Interest Period, the sum of (i) interest on the Equipment Loan Note Principal
Balance for the Interest Period ended on such Distribution Date computed
pursuant to subsection 2.2(a) and subsection 2.2(e), plus (ii) the Equipment
Loan Unused Facility Fee with respect to such Interest Period.
"Equipment Loan Note Owners" shall mean the Equipment Loan Note
Purchasers that are owners of record of the Equipment Loan Notes or, with
respect to any Equipment Loan Note held by an Agent hereunder as nominee on
behalf of Equipment Loan Note Purchasers in an Equipment Loan Purchaser Group,
the Equipment Loan Note Purchasers that are beneficial owners of such Equipment
Loan Note as reflected on the books of such Agent in accordance with this
Agreement and the Related Documents.
"Equipment Loan Note Principal Balance" shall mean the outstanding
principal balance of all Advances made on the Equipment Loan Notes.
"Equipment Loan Note Purchasers" shall mean, collectively, the CP
Conduits and the Committed Purchasers that are members of an Equipment Loan
Purchaser Group.
"Equipment Loan Notes" has the meaning specified in the recitals to
this Agreement.
"Equipment Loan Percentage Interest" shall mean, for an Equipment Loan
Note Purchaser on any day, the percentage equivalent of (a) the sum of (i) the
portion of the Equipment Loan Initial Principal Balance (if any) purchased by
such Equipment Loan Note Purchaser, plus (ii) the aggregate portion of Equipment
Loan Advance Increases (if any) purchased by such Equipment Loan Note Purchaser
prior to such day pursuant to this Agreement, plus (iii) any portion of the
Equipment Loan Note Principal Balance acquired by
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such Equipment Loan Note Purchaser as an Assignee from another Equipment Loan
Note Purchaser pursuant to a Transfer Supplement executed and delivered pursuant
to Section 7.1, minus (iv) the aggregate amount of principal payments made with
respect to the Equipment Loan Notes to such Equipment Loan Note Purchaser prior
to such day, minus (v) any portion of the Equipment Loan Note Principal Balance
assigned by such Equipment Loan Note Purchaser to an Assignee pursuant to a
Transfer Supplement executed and delivered pursuant to Section 7.1, divided by
(b) the aggregate Equipment Loan Note Principal Balance on such day.
"Equipment Loan Purchaser Group" shall mean each group of Equipment
Loan Note Purchasers consisting of at least one Committed Purchaser and an
Agent. Purchaser Groups may also contain a CP Conduit. The initial Equipment
Loan Note Purchaser Groups shall be (i) SPARC, as CP Conduit, and CIBC, as a
Committed Purchaser and Agent and (ii) Triple-A One Funding Corporation, as CP
Conduit, Bear ▇▇▇▇▇▇▇, as a Committed Purchaser and MBIA Insurance Corporation,
as Agent.
"Equipment Loan Unused Facility Fee" shall have the meaning, with
respect to each Equipment Loan Purchaser Group, specified in the Applicable
Margin Fee Letter.
"Excess Funds" has the meaning specified in Section 8.15.
"Excluded Taxes" has the meaning specified in subsection 2.4(a).
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any accounting board or authority (whether or not a part of
government) which is responsible for the establishment or interpretation of
national or international accounting principles.
"Indemnitee" has the meaning specified in subsection 2.5(a).
"Indenture" has the meaning specified in the recitals to this
Agreement.
"Indenture Trustee" has the meaning specified in the recitals to this
Agreement.
"Investing Office" shall mean initially, the office of any Note
Purchaser (if any) designated as such on the signature pages hereto or in the
Transfer Supplement by which it became a party to this Agreement, and
thereafter, such other office of such Note Purchaser or such Assignee as may be
designated in writing to the applicable Agent, the Co-Administrative Agents, the
Issuer, the Transferor, the Servicer and the Indenture Trustee by such Note
Purchaser or Assignee.
"Investment Letter" shall mean the letter delivered by each Note
Purchaser that is substantially in the form attached as Exhibit F to the
Indenture.
"Issuer" has the meaning specified in the recitals to this Agreement.
"Liquidity Percentage" shall mean, for a CPC Committed Purchaser, such
CPC Committed Purchaser's Adjusted Commitment with respect to its related CP
Conduit as a
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percentage of the aggregate Adjusted Commitments of all CPC Committed Purchasers
for such CP Conduit.
"Maximum Purchase Amount" shall mean (i) for any CP Conduit, the
aggregate Commitments of the CPC Committed Purchasers in its Purchaser Group and
(ii) for any Committed Purchaser, its Commitment.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
that is a nationally recognized statistical rating organization.
"Note Agent" has the meaning specified in subsection 6.1(a).
"Note Owner" shall mean an Equipment Loan Note Owner or a Receivables
Note Owner, as applicable.
"Note Purchaser" shall mean an Equipment Loan Note Purchaser or a
Receivables Note Purchaser, as applicable.
"Participant" has the meaning specified in subsection 7.1(d).
"Participation" has the meaning specified in subsection 7.1(d).
"Percentage Interest" shall mean the Equipment Loan Percentage
Interest or the Receivables Percentage Interest, as applicable. In the event
that a Note Purchaser is both an Equipment Loan Note Purchaser and a Receivables
Note Purchaser, such Note Purchaser shall be deemed to hold separate Percentage
Interests hereunder in each such capacity.
"Permitted Transferee" shall mean (i) prior to the Conversion Date,
each initial Equipment Loan Note Purchaser or Receivables Note Purchaser, as
applicable, each initial Agent (in its individual capacity), each initial
Co-Administrative Agent (in its individual capacity), each Conduit Assignee
which has been consented to as a potential Transferee by the Insurer (if the
Insurer is then the Control Party) (which consent shall not be unreasonably
withheld), each Person listed in the Consented Transferee Letter as in effect on
the date of the related Transfer, at such time and each other Person who has
been consented to as a potential Transferee by the Transferor and the Insurer
(if the Insurer is then the Control Party) (which consents shall not be
unreasonably withheld) or (ii) after the Conversion Date or otherwise if the
Transferee is a Transferee of an Equipment Loan Note, a Receivables Note or the
rights thereunder and not of any Commitment, any Transferee.
"Person" shall mean an individual, partnership, corporation, business
trust, statutory trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Pooling and Servicing Agreement" shall have the meaning specified in
the recitals to this Agreement.
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"Primary Purchaser" shall mean with respect to each Purchaser Group,
each CP Conduit, and to the extent that a Purchaser Group does not contain a CP
Conduit, each Note Purchaser in such Purchaser Group.
"Purchaser Group" shall mean each Equipment Loan Purchaser Group and
each Receivables Purchaser Group, as applicable.
"Purchaser Percentage" shall mean, with respect to a Primary
Purchaser, its Maximum Purchase Amount as a percentage of the Equipment Loan
Facility Limit or Receivables Loan Facility Limit, as applicable.
"Qualified Special Purpose Entity" has the meaning set forth in the
Statement of Financial Accounting Standards No. 140, and any successor
promulgation.
"Receivables Advance Increase" shall mean the amount of each Advance
made to the Receivables Notes on each Receivables Borrowing Date.
"Receivables Borrowing Date" shall mean each date on which a
Receivables Advance Increase occurs.
"Receivables Facility Limit" shall mean, for any day, $60,000,000,
minus the excess, if any, of (x) the Equipment Loan Note Principal Balance on
such day over (y) $240,000,000.
"Receivables Initial Advance" shall mean shall mean the amount of the
Advance made on the Receivables Notes on the Closing Date.
"Receivables Monthly Interest" shall mean, for any Distribution Date,
the Receivables Monthly Interest and Fees for the Interest Period ended on the
day preceding such Distribution Date.
"Receivables Monthly Interest and Fees" shall mean, for any Interest
Period, the sum of (i) interest on the Receivables Note Principal Balance for
the Interest Period ended on such Distribution Date computed pursuant to
subsection 2.2(a) and subsection 2.2(e), plus (ii) the Receivables Unused
Facility Fee with respect to such Interest Period.
"Receivables Note Owners" shall mean the Receivables Note Purchasers
that are owners of record of the Receivables Notes or, with respect to any
Receivables Note held by an Agent hereunder as nominee on behalf of Receivables
Note Purchasers in a Receivables Purchaser Group, the Receivables Note
Purchasers that are beneficial owners of such Receivables Note as reflected on
the books of such Agent in accordance with this Agreement and the Related
Documents.
"Receivables Note Principal Balance" shall mean the outstanding
principal balance of all Advances on such Receivables Notes.
"Receivables Note Purchasers" shall mean, collectively, the CP
Conduits and the Committed Purchasers that are members of a Receivables Purchase
Group.
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"Receivables Notes" has the meaning specified in the recitals to this
Agreement.
"Receivables Percentage Interest" shall mean, for a Receivables Note
Purchaser on any day, the percentage equivalent of (a) the sum of (i) the
portion of the Receivables Initial Advance (if any) purchased by such
Receivables Note Purchaser, plus (ii) the aggregate portion of Receivables
Advance Increases (if any) purchased by such Receivables Note Purchaser prior to
such day pursuant to this Agreement, plus (iii) any portion of the Receivables
Note Principal Balance acquired by such Receivables Note Purchaser as an
Assignee from another Receivables Note Purchaser pursuant to a Transfer
Supplement executed and delivered pursuant to Section 7.1, minus (iv) the
aggregate amount of principal payments made with respect to the Receivables
Notes to such Receivables Note Purchaser prior to such day, minus (v) any
portion of the Receivables Note Principal Balance assigned by such Receivables
Note Purchaser to an Assignee pursuant to a Transfer Supplement executed and
delivered pursuant to Section 7.1, divided by (b) the aggregate Receivables Note
Principal Balance on such day.
"Receivables Purchaser Group" shall mean each group of Receivables
Note Purchasers consisting of at least one Committed Purchaser and an Agent.
Purchaser Groups may also contain a CP Conduit. The initial Receivables Note
Purchaser Groups shall be (i) SPARC, as CP Conduit, and CIBC, as a Committed
Purchaser and Agent and (ii) Triple-A One Funding Corporation, as CP Conduit,
Bear ▇▇▇▇▇▇▇, as a Committed Purchaser and MBIA Insurance Corporation, as Agent.
"Receivables Unused Facility Fee" shall have the meaning, with respect
to each Receivables Purchaser Group, specified in the Applicable Margin Fee
Letter.
"Regulatory Change" shall mean, as to each Note Purchaser, Participant
or Affected Party, any change, or any generally accepted change in the
interpretation or application, occurring after the date of the execution and
delivery of this Agreement or, if later, the date of the execution and delivery
of the Transfer Supplement by which it became party to this Agreement; in the
case of a Participant, any change occurring after the date on which its
Participation became effective; or in the case of an Affected Party, any change
occurring after the date it became such an Affected Party, in any (or the
adoption after such date of any new):
(i) United States federal or state law or foreign law applicable
to such Note Purchaser, Participant or Affected Party; or
(ii) regulation, interpretation, directive, guideline or request
(whether or not having the force of law) applicable to such Note Purchaser,
Participant or Affected Party of any court or other judicial authority or any
Governmental Authority charged with the interpretation or administration of any
law referred to in clause (i) or of any fiscal, monetary, banking or other
Governmental Authority or central bank having jurisdiction over such Note
Purchaser, Participant or Affected Party or charged with the administration,
interpretation or application of any such regulation, interpretation, directive,
guideline or request. For avoidance of doubt, any interpretation of Accounting
Research Bulletin No. 51 by the Financial Accounting Standards Board shall
constitute a Regulatory Change herein.
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"Related Documents" shall mean, collectively, this Agreement
(including all effective Fee Letters and Transfer Supplements), the Transfer and
Servicing Agreements, the Indenture, the Trust Agreement, the Administration
Agreement, the Notes, the Custodial Agreement, and all agreements and
instruments related thereto.
"Replacement Purchaser" has the meaning specified in subsection
7.1(j).
"Required Equipment Loan Note Owners" as to any Purchaser Group, shall
mean, at any time, Equipment Loan Note Owners having more than two-thirds of the
aggregate Percentage Interests of all Equipment Loan Note Owners in such
Purchaser Group.
"Required Equipment Loan Note Purchasers" as to any Purchaser Group,
shall mean, at any time, Committed Purchasers having Commitments aggregating
more than two-thirds of all of the Commitments in such Purchaser Group.
"Required Receivables Note Owners" as to any Purchaser Group, shall
mean, at any time, Receivables Note Owners having more than two-thirds of the
aggregate Percentage Interests of all Receivables Note Owners in such Purchaser
Group.
"Required Receivables Note Purchasers" as to any Purchaser Group,
shall mean, at any time, Committed Purchasers having Commitments aggregating
more than two-thirds of all of the Commitments in such Purchaser Group.
"Requirement of Law" shall mean, as to any Person, any law, treaty,
rule or regulation, or determination of an arbitrator or Governmental Authority,
in each case applicable to or binding upon such or to which such Person is
subject, whether federal, state or local (including usury laws, the Federal
Truth in Lending Act and Regulation Z and Regulation B of the Board of Governors
of the Federal Reserve System).
"SPARC" shall mean Special Purpose Accounts Receivables Cooperative
Corporation, a cooperative corporation organized under the Consumer Cooperative
Corporation Law of the State of California.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor that is a
nationally recognized statistical rating organization.
"Successor Servicer" shall have the meaning specified in Section 8.5.
"Support Advances" shall mean, with respect to a CPC Committed
Purchaser and its related CP Conduit, any participation held by such CPC
Committed Purchaser in such CP Conduit's Percentage Interest in the Equipment
Loan Note Principal Balance or Receivables Note Principal Balance, as
applicable, which was purchased from such CP Conduit pursuant to a Support
Facility and any loans or other advances made by such CPC Committed Purchaser to
such CP Conduit pursuant to a Support Facility to fund such CP Conduit's making
or maintaining its purchases hereunder up to the amount of the related Advance
(but excluding any such loans or advances made to fund such CP Conduit's
obligations to pay interest, fees or other similar amounts relating to the
funding of its making or maintaining its purchases hereunder). In
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the event that such CPC Committed Purchaser and its related CP Conduit are both
Equipment Loan Note Purchasers and Receivables Note Purchasers, such CPC
Purchaser shall be deemed to hold separate Support Advances hereunder in each
such capacity.
"Support Facility" shall mean any liquidity or credit support
agreement with a CP Conduit which relates to this Agreement (including any
master repurchase agreement or an agreement to purchase an assignment of or
participation in Equipment Loan Notes or Receivables Notes), it being understood
that such liquidity or credit support may also relate to other transactions.
"Support Party" shall mean any other bank, insurance company or other
financial institution extending or having a commitment to extend funds to or for
the account of or to provide credit support for the benefit of a CP Conduit
(including by agreement to purchase an assignment of or participation in
Equipment Loan Notes or Receivables Notes) under a Support Facility. Each CPC
Committed Purchaser for a CP Conduit which is a CP Conduit shall be deemed to be
a Support Party for such CP Conduit.
"Taxes" has the meaning specified in subsection 2.4(a).
"Total Equipment Loan Commitment" shall mean, on any date of
determination, the aggregate of all the Commitments of all Committed Purchasers
in all Equipment Loan Purchaser Groups.
"Total Receivables Commitment" shall mean, on any date of
determination, the aggregate of all the Commitments of all Committed Purchasers
in all Receivables Purchaser Groups.
"Transfer" has the meaning specified in subsection 7.1(c).
"Transfer Supplement" has the meaning specified in subsection 7.1(e).
"Transferee" has the meaning specified in subsection 7.1(c).
"Transferor" has the meaning specified in the preamble to this
Agreement.
"Trust" has the meaning specified in the recitals to this Agreement.
"written" or "in writing" (and other variations thereof) shall mean
any form of written communication or a communication by means of telex,
telecopier device, telegraph or cable.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings as set forth herein when used in any
certificate or other document made or delivered pursuant hereto.
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(b) The words "hereof", "herein", and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; and Section, subsection and
Exhibit references are to this Agreement, unless otherwise specified. The words
"including" and "include" shall be deemed to be followed by the words "without
limitation". References to any Person include that Person's successors in
interest.
ARTICLE 2 AMOUNT AND TERMS OF COMMITMENTS
2.1 Purchases.
(a) On and subject to the terms and conditions of this Agreement
(including Article 3 and clause (g) below), on the Closing Date each initial
Primary Purchaser may purchase its Purchaser Percentage of the Equipment Loan
Initial Advance or the Receivables Initial Advance, as applicable, for a
purchase price equal to the portion of the Equipment Loan Initial Advance or the
Receivables Initial Advance, as applicable, so purchased. The determination of
whether an initial Primary Purchaser will make such purchase may, less such
amounts as the Issuer and the initial Primary Purchasers shall agree, be made by
the related Agent for such Primary Purchaser.
(b) On and subject to the terms and conditions of this Agreement
(including Article 3 and clause (g) below) and prior to the Conversion Date,
each Primary Purchaser may purchase its Purchaser Percentage of any Equipment
Loan Advance Increase or Receivables Advance Increase, as applicable, offered
for purchase hereunder for a purchase price equal to the Equipment Loan Advance
Increase or the Receivables Advance Increase, as applicable, so purchased. The
determination of whether an initial Primary Purchaser will make such purchase
may be made by the related Agent for such Primary Purchaser.
(c) Each purchase of any Equipment Loan Advance Increase or
Receivables Advance Increase hereunder shall be in accordance with the
provisions hereof upon delivery of an Advance Increase Notice by the Issuer to
each Agent and the Indenture Trustee received no later than 5:00 p.m., New York
City time, at least two Business Days prior to the applicable Equipment Loan
Borrowing Date or Receivables Borrowing Date (or such shorter period as may be
agreed to by each Agent). Each Advance Increase Notice shall be irrevocable and
shall specify an Advance of at least $1,000,000, unless each Committed Purchaser
otherwise agrees, and in an integral multiple of $100,000. The Issuer may not
deliver more than one Advance Increase Notice with respect to an Equipment Loan
Advance Increase and more than one Advance Increase Notice with respect to a
Receivables Advance Increase in any calendar week, unless each Agent otherwise
agrees, which consent shall not be unreasonably withheld. The Indenture Trustee
shall forward a copy of such Advance Increase Notice to each applicable
Equipment Loan Note Purchaser or Receivables Note Purchaser, by not later than
10:00 a.m. on the next Business Day as set forth herein.
(d) Each CP Conduit shall notify the Agent for its Purchaser Group by
10:00 a.m., New York City time, on the applicable Purchase Date whether it has
elected to make the purchase offered to it pursuant to subsection 2.1(a) or
2.1(b). In the event that a CP Conduit shall not have timely provided such
notice, such CP Conduit shall be deemed to have elected not
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to make such purchase. Such Agent shall notify each CPC Committed Purchaser for
such CP Conduit on or prior to 11:00 a.m., New York City time, on the applicable
Purchase Date if such CP Conduit has not elected to purchase its entire
Purchaser Percentage of the Equipment Loan Initial Advance, the Equipment Loan
Advance Increase, the Receivables Initial Advance, or the Receivables Advance
Increase, as the case may be, which notice shall specify (i) the identity of
such CP Conduit, (ii) the portion of the Equipment Loan Initial Advance, the
Equipment Loan Advance Increase, the Receivables Initial Advance, or the
Receivables Advance Increase, as the case may be, which such CP Conduit has not
elected to purchase as provided above, and (iii) the respective Liquidity
Percentages of such CPC Committed Purchasers on such Purchase Date (as
determined by such Agent in good faith; for purposes of such determination, such
Agent shall be entitled to rely conclusively on the most recent information
provided by such CP Conduit or its agent or by the agent for its Support
Parties). Subject to receiving such notice and the satisfaction of the
applicable conditions set forth in Article 3 and clause (g) below, each of such
CP Conduit's CPC Committed Purchasers shall make a purchase of Equipment Loan
Notes or Receivables Notes, as applicable, on the applicable Purchase Date in an
amount equal to its Liquidity Percentage of the portion of the Equipment Loan
Initial Advance, the Equipment Loan Advance Increase, the Receivables Initial
Advance, or the Receivables Advance Increase, as the case may be, which such CP
Conduit has not elected to purchase, for a purchase price equal to its share of
the Equipment Loan Initial Advance, the Equipment Loan Advance Increase, the
Receivables Initial Advance, or the Receivables Advance Increase, as applicable,
so purchased.
(e) All purchases made pursuant to this Note Purchase Agreement by
each Note Purchaser in a Purchaser Group shall be evidenced by one Equipment
Loan Note or Receivables Note, as applicable, for such Purchaser Group issued
pursuant to the Indenture in the name of the related Agent for such Purchaser
Group or, if requested by such Agent, in the name of the relevant Primary
Purchaser. Each Equipment Loan Note Purchaser's or Receivables Note Purchaser's,
as applicable, purchase price payable pursuant to subsection 2.1(a), 2.1(b) or
2.1(d) shall be made available to the Issuer at such account as it shall direct
or to the Agent for its Purchaser Group at the account of the Agent specified in
Section 8.2(b), subject to the fulfillment of the applicable conditions set
forth in Article 3, if to the Agent, at or prior to 2:00 p.m., New York City
time, and if to the Issuer, at or prior to 3:00 p.m., New York City time, on the
applicable Purchase Date, by deposit of immediately available funds. If such
funds are to be remitted to an Agent, such Agent shall promptly notify the
Issuer and the Transferor in the event that any Equipment Loan Note Purchaser or
Receivables Note Purchaser either fails to make such funds available to such
Agent before such time or notifies such Agent that it will not make such funds
available to such Agent before such time. Subject to (i) such Agent's receipt of
such funds and (ii) the fulfillment of the applicable conditions set forth in
Article 3, as determined by such Agent, such Agent will, not later than 3:00
p.m., New York City time on such Purchase Date, make such funds available, in
the same type of funds received, by wire transfer thereof to the account of the
Issuer in the United States specified in the applicable Advance Increase Notice
or, in the case of the purchase on the Closing Date, specified in writing by the
Issuer to such Agent not later than the one Business Day prior to the Closing
Date.
(f) Notwithstanding the fulfillment of the applicable conditions set
forth in Article 3 with respect to a purchase, in the event that a CP Conduit
elected to make a purchase on a Purchase Date but failed to make its purchase
price available to the Agent for its Purchaser Group when required by subsection
2.1(e), such CP Conduit shall be deemed to have rescinded
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its election to make such purchase, and none of the Issuer, the Transferor or
any other Person shall have any claim against such CP Conduit by reason of its
failure to timely make such purchase. In any such case, such Agent shall give
notice of such failure not later than 1:00 p.m., New York City time, on the
Purchase Date to each CPC Committed Purchaser for such CP Conduit and to the
Issuer and the Transferor, which notice shall specify (i) the identity of such
CP Conduit, (ii) the amount of the purchase which it had elected but failed to
make and (iii) the respective Liquidity Percentages of such CPC Committed
Purchasers on such Purchase Date (as determined by such Agent in good faith; for
purposes of such determination, such Agent shall be entitled to rely
conclusively on the most recent information provided by such CP Conduit or its
agent or by the agent for its Support Parties). Subject to receiving such
notice, each of such CP Conduit's CPC Committed Purchasers shall purchase a
portion of the Equipment Loan Note Principal Balance or Receivables Note
Principal Balance, as applicable, in an amount equal to its Liquidity Percentage
of the amount described in clause (ii) above at or before 2:00 p.m., New York
City time, on such Purchase Date and otherwise in accordance with subsection
2.1(d). Subject to such Agent's receipt of such funds, such Agent will not later
than 3:00 p.m., New York City time, on such Purchase Date make such funds
available, in the same type of funds received, by wire transfer thereof to the
account of the Issuer described in subsection 2.1(e), which payment shall be
deemed to be timely for purposes hereof and of the Indenture.
(g) Notwithstanding anything herein to the contrary, in no event (i)
shall a Committed Purchaser be required on any date to make a purchase of the
Equipment Loan Initial Advance or purchase an Equipment Loan Advance Increase
which would result in its Percentage Interest of the Equipment Loan Note
Principal Balance, determined after giving effect to such purchase, exceeding
its Adjusted Commitment with respect thereto; or (ii) may any Equipment Loan
Advance Increase or the Equipment Loan Initial Advance be offered for purchase
hereunder, nor shall any Equipment Loan Note Purchaser be obligated to purchase
any Equipment Loan Advance Increase or the Equipment Loan Initial Advance, to
the extent that, after giving effect to such Equipment Loan Advance Increase or
purchase of the Equipment Loan Initial Advance, the Equipment Loan Note
Principal Balance would exceed the Equipment Loan Facility Limit.
(h) Notwithstanding anything herein to the contrary, in no event (i)
shall a Committed Purchaser be required on any date to make a purchase of the
Receivables Initial Advance or purchase a Receivables Advance Increase which
would result in its Percentage Interest of the Receivables Note Principal
Balance, determined after giving effect to such purchase, exceeding its Adjusted
Commitment with respect thereto; or (ii) may any Receivables Advance Increase or
the Receivables Initial Advance be offered for purchase hereunder, nor shall any
Receivables Note Purchaser be obligated to purchase any Receivables Advance
Increase or the Receivables Initial Advance, to the extent that, after giving
effect to such Receivables Advance Increase or purchase of the Receivables
Initial Advance, the Receivables Note Principal Balance would exceed the
Receivables Facility Limit.
2.2 Interest, Fees, Expenses, Payments, Etc.
(a) The interest and fees (including the Equipment Loan Facility Fee
and the Receivables Facility Fee) on the Equipment Loan Notes and Receivables
Notes shall be paid as provided in the Indenture (including Sections 2.7 and
8.2).
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(b) The principal of, and interest and fees in respect of the
Equipment Loan Notes shall be paid as provided in Sections 2.7 and 8.2 of the
Indenture. Equipment Loan Monthly Interest and Fees for each Interest Period
(including the last Interest Period) shall be due and payable on the
Distribution Date immediately following such Interest Period. In the case of
Equipment Loan Notes held by an Agent as nominee on behalf of an Equipment Loan
Note Purchaser in its Purchaser Group, such Agent shall allocate to each
Equipment Loan Note Owner in its Purchaser Group each payment in respect of the
Equipment Loan Notes received by such Agent in its capacity as Equipment Loan
Noteholder as provided herein. Payments in reduction of the portion of the
Equipment Loan Note Principal Balance evidenced by an Equipment Loan Note shall
be allocated and applied to the Equipment Loan Note Owners of such Equipment
Loan Note pro rata based on their respective Percentage Interests of the
Equipment Loan Note Principal Balance, or in any such case in such other
proportions as each affected Equipment Loan Note Purchaser may agree upon in
writing from time to time with such Agent and the Issuer. Payments of interest
in respect of the portion of the Equipment Loan Note Principal Balance evidenced
by an Equipment Loan Note shall be allocated and applied to Equipment Loan Note
Owners of such Equipment Loan Note pro rata based upon the respective amounts of
interest due and payable to them, determined as provided above in this Section
2.2.
(c) The principal of, and interest and fees in respect of the
Receivables Notes shall be paid as provided in Sections 2.7 and 8.2 of the
Indenture. In the case of Receivables Notes held by an Agent as nominee on
behalf of a Receivables Note Purchaser in its Purchaser Group, such Agent shall
allocate to the each Receivables Note Owner in its Purchaser Group each payment
in respect of the Receivables Notes received by such Agent in its capacity as
Receivables Noteholder as provided herein. Payments in reduction of the portion
of the Receivables Note Principal Balance evidenced by a Receivables Note shall
be allocated and applied to the Receivables Note Owners of such Receivables Note
pro rata based on their respective Percentage Interests of the Receivables Note
Principal Balance, or in any such case in such other proportions as each
affected Receivables Note Purchaser may agree upon in writing from time to time
with such Agent and the Issuer. Payments of interest in respect of the portion
of the Receivables Note Principal Balance evidenced by a Receivables Note shall
be allocated and applied to Receivables Note Owners of such Receivables Note pro
rata based upon the respective amounts of interest due and payable to them,
determined as provided above in this Section 2.2. Payments of the Receivables
Unused Facility Fee shall be allocated and paid to Receivables Note Owners pro
rata based upon their respective interest in the Receivables Note Principal
Balance for the applicable Interest Period.
(d) Any fees and any interest thereon or other amounts due and payable
hereunder (without regard to any limitations set forth herein on the sources
from which such amount may be paid) which are not paid on the due date thereof
(including interest payable pursuant to this clause (d)) shall accrue interest
(after as well as before judgment) at 2% per annum above the Base Rate plus the
Applicable Margin in effect on the date the payment was due from and including
the due date thereof to but excluding the date such amount is actually paid.
(e) Unless otherwise specified in the Applicable Margin Fee Letter,
interest calculated by reference to the Adjusted Eurodollar Rate shall be
calculated on the basis of a 360-day year for the actual days elapsed. Periodic
fees or other periodic amounts payable
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hereunder shall be calculated, unless otherwise specified in the Fee Letter, on
the basis of a 360-day year and for the actual days elapsed.
(f) All payments to be made hereunder or under the Indenture, whether
on account of principal, interest, fees or otherwise, shall be made without
setoff or counterclaim and shall be made prior to 11:30 a.m., New York City
time, on the due date thereof to the applicable Agent, at its account specified
in subsection 8.2(b), in Dollars and in immediately available funds. Payments
received by such Agent after 11:30 a.m., New York City time, shall be deemed to
have been made on the next Business Day, unless otherwise agreed to by such
Agent. Notwithstanding anything herein to the contrary, if any payment due
hereunder becomes due and payable on a day other than a Business Day, the
payment date thereof shall be extended to the next succeeding Business Day and
interest shall accrue thereon at the applicable rate during such extension. To
the extent that (i) the Issuer, the Indenture Trustee, the Transferor or the
Servicer makes a payment to a Co-Administrative Agent or an Agent or Note
Purchaser or (ii) a Co-Administrative Agent or an Agent or Note Purchaser
receives or is deemed to have received any payment or proceeds for application
to an obligation, which payment or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, receiver or any other party under any bankruptcy or
insolvency law, state or federal law, common law, or for equitable cause, then,
to the extent such payment or proceeds are set aside, the obligation or part
thereof intended to be satisfied shall be revived and continue in full force and
effect, as if such payment or proceeds had not been received or deemed received
by such Co-Administrative Agent, such Agent or such Note Purchaser, as the case
may be.
2.3 Requirements of Law.
(a) In the event that any Note Purchaser, Participant or Affected
Party, as applicable, shall have reasonably determined that any Regulatory
Change shall impose, modify, hold or deem applicable any reserve, special
deposit, compulsory loan or similar requirement (including any such requirement
imposed by the Board of Governors of the Federal Reserve System and any such
establishment or interpretation of accounting principles) against assets of or
held by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, such
Note Purchaser or Affected Party, as applicable, or shall impose on any Note
Purchaser, Affected Party or the London interbank market any other condition
affecting this Agreement, the Indenture or any Transfer and Servicing Agreement,
the ownership, maintenance or financing of the Notes, the Trust Estate or
payments of amounts due hereunder or its obligations to advance funds hereunder
or under a Support Facility and the result of any of the foregoing is to
increase the cost to such Note Purchaser or Affected Party, by an amount which
such Note Purchaser or Affected Party in good ▇▇▇▇▇ ▇▇▇▇▇ to be material, of
maintaining its Commitment or its interest in the Equipment Loan Notes or
Receivables Notes, as applicable, or to reduce any amount receivable in respect
thereof, then, in any such case, after submission by such Note Purchaser or
Affected Party to the Agent for the related Purchaser Group of a written request
therefor and the submission by such Agent to the Issuer, the Transferor and the
Servicer of such written request therefor, together with the certificate
described in subsection 2.3(d) below, the Servicer shall pay to such Agent for
the account of such Note Purchaser or Affected Party any additional amounts
necessary to compensate such Note Purchaser or Affected Party for such increased
cost or reduced amount
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receivable, to the extent not already reflected in the applicable interest rate
(other than with respect to the applicable margin), together with interest on
any such unpaid amount from the Distribution Date following receipt by the
Issuer of such request for compensation under this subsection 2.3(a), if such
request is received by the Issuer at least five Business Days prior to the
Determination Date related to such Distribution Date, and otherwise from the
following Distribution Date, until payment in full thereof (after as well as
before judgment) at the Federal Funds Rate in effect from time to time.
(b) In the event that any Note Purchaser or Affected Party, as
applicable, shall have reasonably determined that any Regulatory Change
regarding capital adequacy or any change in the application of generally
accepted accounting principles has the effect of reducing the rate of return on
such Note Purchaser's or Affected Party's capital or on the capital of any
Person controlling such Note Purchaser or Affected Party as a consequence of its
obligations hereunder or with respect hereto or its maintenance of its
Commitment or its interest in the Equipment Loan Notes or Receivables Notes, as
applicable, to a level below that which such Note Purchaser, Affected Party or
such Person could have achieved but for such Regulatory Change (taking into
consideration such Note Purchaser's, Affected Party's or Person's policies with
respect to capital adequacy) or such accounting change by an amount in good
faith deemed by such Note Purchaser, Affected Party or Person to be material,
then, from time to time, after submission by such Note Purchaser or Affected
Party to the Agent for the related Purchaser Group of a written request therefor
and the submission by such Agent to the Issuer, the Transferor and the Servicer
of such written request therefor, together with the certificate described in
subsection 2.3(d) below, the Issuer and the Servicer shall, on a joint and
several basis, pay to such Agent for the account of such Note Purchaser or
Affected Party such additional amount or amounts as will compensate such Note
Purchaser, Affected Party or Person, as applicable, for such reduction, together
with interest on any such unpaid amount from the Distribution Date following
receipt by the Issuer of such request for compensation under this subsection
2.3(b), if such request is received by the Issuer at least five Business Days
prior to the Determination Date related to such Distribution Date, and otherwise
from the following Distribution Date, until payment in full thereof (after as
well as before judgment) at the Federal Funds Rate in effect from time to time.
Nothing in this subsection 2.3(b) shall be deemed to require the Issuer or the
Servicer to pay any amount to a Note Purchaser or Affected Party to the extent
such Note Purchaser or Affected Party has been compensated therefor under
another provision of this Agreement or to the extent such amount is already
reflected in the applicable interest rate (other than with respect to the
applicable margin).
(c) Each Note Purchaser and Affected Party agrees that it shall use
its reasonable efforts to reduce or eliminate any claim for compensation
pursuant to subsections 2.3(a) and 2.3(b), including but not limited to
designating a different Investing Office for their Equipment Loan Notes or
Receivables Notes, as applicable (or any interest therein), if such efforts will
avoid the need for, or reduce the amount of, any increased amounts referred to
in subsection 2.3(a) or 2.3(b) and will not, in the reasonable opinion of such
Note Purchaser or Affected Party, as applicable, be unlawful or otherwise
disadvantageous to such Note Purchaser or Affected Party or inconsistent with
its policies or regulatory restrictions or result in any unreimbursed cost or
expense to such Note Purchaser or Affected Party or in an increase in the
aggregate amount payable under subsections 2.3(a) and 2.3(b).
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(d) Each Note Purchaser or Affected Party claiming increased amounts
described in subsection 2.3(a) or 2.3(b) will furnish to the Agent for the
related Purchaser Group (together with its request for compensation) a
certificate prepared in good faith setting forth the basis (which may include
the use of estimates derived using commercially reasonable methods) and the
calculation of the amount (in reasonable detail) of each request by such Note
Purchaser or Affected Party for any such increased amounts referred to in
subsection 2.3(a) or 2.3(b). Any such certificate shall be conclusive absent
manifest error, and such Agent shall deliver a copy thereof to the Issuer, the
Transferor and the Servicer. Failure on the part of any Note Purchaser or
Affected Party to demand compensation for any amount pursuant to subsection
2.3(a) or 2.3(b) with respect to any period shall not constitute a waiver of
such Note Purchaser's or Affected Party's right to demand compensation with
respect to such period; provided, however, that notwithstanding the foregoing
provisions of this Section 2.3, a Note Purchaser or Affected Party, as
applicable, shall not be compensated for any such amount relating to any period
ending more than six months prior to the date that the related Agent for such
Note Purchaser or Affected Party notifies the Issuer, the Transferor and the
Servicer in writing thereof or for any amounts resulting from a change by any
Note Purchaser or Affected Party of its Investing Office (other than changes
required by law or changes made pursuant to subsection 2.3(c) or subsection
2.4(d)). Amounts owing under this Section 2.3 by the Issuer shall be due and
payable in accordance with Section 8.2 of the Indenture.
2.4 Taxes.
(a) All payments made to a Note Purchaser, an Affected Party, the
Agents or a Co-Administrative Agent under this Agreement and the Indenture
(including all amounts payable with respect to the Equipment Loan Notes or
Receivables Notes, as applicable) shall, to the extent allowed by law, be made
free and clear of, and without deduction or withholding for or on account of,
any present or future income, stamp, excise, franchise or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority
(collectively, "Taxes"), excluding (i) income taxes (including branch profit
taxes, minimum taxes and taxes computed under alternative methods, at least one
of which is based on or measured by net income), franchise taxes (imposed in
lieu of income taxes), or any other taxes based on or measured by the net income
of such Note Purchaser, Affected Party, Participant, Agent or Co-Administrative
Agent (as the case may be) or the gross receipts or income of such Note
Purchaser, Affected Party, Participant, Agent or Co-Administrative Agent, as the
case may be; (ii) any Taxes that would not have been imposed but for the failure
of such Note Purchaser, Affected Party, Participant, Agent or Co-Administrative
Agent, as applicable, to provide and keep current (to the extent legally able)
any certification or other documentation required to qualify for an exemption
from, or reduced rate of, any such Taxes or required by this Agreement to be
furnished by such Note Purchaser, Affected Party, Participant, Agent or
Co-Administrative Agent, as applicable; and (iii) any Taxes imposed as a result
of a change by any Note Purchaser, Affected Party or Participant of its
Investing Office (other than changes pursuant to this Agreement, including
subsection 2.4(c), or required by law) (all such excluded taxes being
hereinafter called "Excluded Taxes"). If, as a result of any change in law,
treaty or regulation or in the interpretation or administration thereof by any
governmental or regulatory agency or body charged with the administration or
interpretation thereof, or the adoption of any law, treaty or regulation, any
Taxes, other than Excluded Taxes, are required to be withheld from any amounts
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payable to a Note Purchaser, Affected Party, Agent or Co-Administrative Agent
hereunder or under the Indenture, then after submission by any Note Purchaser or
Affected Party to the Agent for the related Purchaser Group and by any Agent or
Co-Administrative Agent to the Issuer, the Transferor and the Servicer of a
written request therefor, together with the certificate described in subsection
2.4(b) below, the amounts so payable to such Note Purchaser, Affected Party,
Agent or Co-Administrative Agent, as applicable, shall be increased by the
Issuer, and the Servicer shall pay to the applicable Agent for the account of
such Note Purchaser or Affected Party or for its own account or to a
Co-Administrative Agent, as applicable, the amount of such increase to the
extent necessary to yield to such Note Purchaser, Affected Party, Agent or
Co-Administrative Agent, as applicable (after payment of all such Taxes)
interest or any such other amounts payable hereunder or thereunder at the rates
or in the amounts specified in this Agreement and the Indenture; provided,
however, that the amounts so payable to such Note Purchaser, Affected Party,
Agent or Co-Administrative Agent shall not be increased pursuant to this
subsection 2.4(a) if such requirement to withhold results from the failure of
such Person to comply with subsection 2.4(c); and provided further, however,
that the Servicer shall not be required to pay any such additional amounts (or
any related interest or penalties) to the extent arising from the result of and
attributable to the failure of a Note Purchaser, Affected Party, Agent or
Co-Administrative Agent to file in a timely manner any tax returns required to
be filed by such Note Purchaser, Affected Party, Agent or Co-Administrative
Agent, as applicable, necessary to ensure that the net amount actually received
by such Person will equal the full amount such Person would have received had no
such deduction or withholding been required. Whenever any Taxes are payable on
or with respect to amounts distributed to a Note Purchaser, Affected Party,
Agent or Co-Administrative Agent, as promptly as possible thereafter the
Servicer shall send to the Agent, on behalf of such Note Purchaser or Affected
Party, or to such Agent or Co-Administrative Agent, as applicable, a certified
copy of an original official receipt showing payment thereof. If either the
Issuer or Servicer fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Agent, on behalf of itself or such Note
Purchaser or Affected Party, or to such Agent or Co-Administrative Agent, as
applicable, the required receipts or other required documentary evidence, the
Servicer shall pay to such Agent on behalf of such Note Purchaser or Affected
Party or to such Agent or Co-Administrative Agent for its own account, as
applicable, any incremental taxes, interest or penalties that may become payable
by such Note Purchaser, Affected Party, Agent or Co-Administrative Agent, as
applicable, as a result of any such failure.
(b) A Note Purchaser or Affected Party claiming increased amounts
under subsection 2.4(a) for Taxes paid or payable by such Note Purchaser or
Affected Party will furnish to the applicable Agent a certificate prepared in
good faith setting forth the basis (which may include the use of estimates
derived using commercially reasonable methods) and amount of each request by
such Note Purchaser or Affected Party for such Taxes, and such Agent shall
deliver a copy thereof to the Issuer, the Transferor and the Servicer. An Agent
or a Co-Administrative Agent claiming increased amounts under subsection 2.4(a)
for its own account for Taxes paid or payable by such Agent or such
Co-Administrative Agent, as applicable, will furnish to the Issuer, the
Transferor and the Servicer a certificate prepared in good faith setting forth
the basis (which may include the use of estimates derived using commercially
reasonable methods) and amount of each request by such Agent or such
Co-Administrative Agent for such Taxes. Any such certificate of a Note
Purchaser, Affected Party, Agent or Co-Administrative Agent shall be conclusive
absent manifest error. Failure on the part of any Note Purchaser,
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Affected Party, Agent or Co-Administrative Agent to demand additional amounts
pursuant to subsection 2.4(a) with respect to any period shall not constitute a
waiver of the right of such Note Purchaser, Affected Party, Agent or
Co-Administrative Agent, as the case may be, to demand compensation with respect
to such period. All such amounts shall be due and payable to such Agent on
behalf of such Note Purchaser or Affected Party or to such Agent or
Co-Administrative Agent for its own account, as the case may be, on the
Distribution Date following receipt by the Issuer of such certificate, if such
certificate is received by the Issuer at least five Business Days prior to the
Determination Date related to such Distribution Date and otherwise shall be due
and payable on the following Distribution Date (or, if earlier, on the Final
Scheduled Distribution Date).
(c) Each Equipment Loan Note Purchaser, each Receivables Note
Purchaser and each Participant holding an interest in either the Equipment Loan
Notes or Receivables Notes agrees that prior to the date on which the first
interest or fee payment hereunder is due thereto, it will deliver to the Issuer,
the Transferor, the Servicer, the Indenture Trustee, the applicable Agent and
the Co-Administrative Agent (i) if such Equipment Loan Note Purchaser,
Receivables Note Purchaser or Participant is not incorporated under the laws of
the United States or any state thereof or the District of Columbia, two duly
completed copies of the U.S. Internal Revenue Service Form W-8ECI or Form W-8BEN
(claiming treaty benefits) or in either case successor applicable forms required
to evidence that the Equipment Loan Note Purchaser, Receivables Note Purchaser
or Participant is entitled to receive payments under this Agreement and with
respect to the Equipment Loan Notes or Receivables Notes, as applicable, without
deduction or withholding of any United States federal income taxes, (ii) if such
Equipment Loan Purchaser, Receivable Note Purchaser or Participant is
incorporated under the laws of the United States of America or any state
thereof, or the District of Columbia, a duly completed U.S. Internal Revenue
Service Form W-9 or successor applicable or required forms, and (iii) such other
forms and information as may be required to confirm the availability of any
applicable exemption from United States federal, state or local withholding
taxes. Each Equipment Loan Note Purchaser, Receivables Note Purchaser or
Participant holding an interest in Equipment Loan Notes or Receivables Notes
also agrees to deliver to the Issuer, the Transferor, the Servicer, the
Indenture Trustee, the applicable Agent and each Co-Administrative Agent two
further copies of such Form W-8ECI, Form W-8BEN or Form W-9, or such successor
applicable forms or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it hereunder, and such extensions or renewals thereof as may
reasonably be requested by the Servicer, the Issuer, the Transferor, an Agent or
a Co-Administrative Agent, unless in any such case, solely as a result of a
change in treaty, law or regulation occurring prior to the date on which any
such delivery would otherwise be required, the Equipment Loan Note Purchaser or
the Receivables Note Purchaser, as applicable, is no longer eligible to deliver
the then-applicable form set forth above and so advises the Servicer, the
Issuer, the Transferor and the applicable Agent and each Co-Administrative
Agent. Each Equipment Loan Note Purchaser and each Receivables Note Purchaser
certifies, represents and warrants as of the Closing Date, each Assignee and
each Participant (in either case other than a Support Party) shall certify,
represent and warrant as a condition of acquiring its Assignment or
Participation as of the effective date of the Transfer Supplement to which it is
a party or of such Participation, as the case may be, and each Support Party
shall certify, represent and warrant as of the effective date of its becoming a
Support Party, that (x) it is entitled to receive payments
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under this Agreement and with respect to the Equipment Loan Notes or Receivables
Notes, as applicable, without deduction or withholding of any United States
federal income taxes and (y) it is entitled to an exemption from United States
backup withholding.
(d) Each Note Purchaser and Affected Party agrees that it shall use
reasonable efforts to reduce or eliminate any amount due under Section 2.3 or
this Section 2.4, including but not limited to designating a different Investing
Office for its Equipment Loan Notes or Receivables Notes, as applicable, (or any
interest therein) if such designation will eliminate or materially reduce any
amount due under Section 2.3 or this Section 2.4 and will not, in the reasonable
opinion of such Note Purchaser or Affected Party be unlawful or otherwise
disadvantageous to such Note Purchaser or Affected Party or inconsistent with
its policies or result in any unreimbursed cost or expense to such Note
Purchaser or Affected Party or in an increase in the aggregate amount payable
under subsections 2.3(a) and 2.3(b). If such amount is not eliminated by any
such designation or no such designation is done and the Note Purchaser does not
waive payment of such amount, such Note Purchaser and the Agent for its
Purchaser Group hereby severally agree to use reasonable efforts to procure a
replacement purchaser not so affected and which is reasonably acceptable to the
Transferor, such Agent and each Co-Administrative Agent (a "Replacement
Purchaser") to replace such affected Note Purchaser. The Transferor shall also
have the right to procure a Replacement Purchaser, provided that such proposed
Replacement Purchaser is reasonably acceptable to the Agent for the affected
Purchaser Group and the Co-Administrative Agent. No replacement of a Note
Purchaser shall be effected pursuant to this subsection 2.4(d) if, after giving
effect thereto, any amounts shall be owing to the replaced Note Purchaser
hereunder. Each affected Note Purchaser hereby agrees to take all actions
necessary to permit a Replacement Purchaser to succeed to its rights and
obligations hereunder.
Notwithstanding the foregoing, (i) if the Note Purchaser being
replaced pursuant to this subsection is a CPC Committed Purchaser, the
Replacement Purchaser shall be acceptable to the related CP Conduit and (ii) if
the Note Purchaser being replaced pursuant to this subsection is a CP Conduit,
the Replacement Purchaser shall be acceptable to all related CPC Committed
Purchasers; and it shall be a condition of such replacement that such
Replacement Purchaser enter into substitute Support Facilities for those to
which the Note Purchaser being replaced is a party on terms mutually acceptable
to the parties thereto. In the event that a proposed Replacement Purchaser which
has been approved by the Transferor, the applicable Agent and each
Co-Administrative Agent as provided in this subsection is not acceptable to the
applicable CP Conduit or the applicable Committed Purchasers, as applicable, or
has not within a reasonable period entered into applicable Support Facilities,
and another replacement Note Purchaser has not been promptly procured as
provided in this subsection with the consent of all affected parties, then the
Note Purchaser which failed to consent to such replacement or to enter into such
Support Facilities may be replaced by a Replacement Purchaser and shall use
reasonable efforts to procure a Replacement Purchaser, in each case as provided
in this subsection. Amounts owing under this Section 2.4 by the Issuer shall be
due and payable in accordance with Section 8.2 of the Indenture.
If such amount is not eliminated due to the failure to find an
acceptable Replacement Purchaser (or such Replacement Purchaser not being
acceptable to the related CP Conduit), and the affected Note Purchaser does not
waive payment of such amount, the
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Transferor shall have the right to procure a replacement purchaser for such Note
Purchaser and any additional Note Purchaser in such Note Purchaser's Purchaser
Group (the "Exiting Note Purchaser Group") and a replacement agent for the
respective Agent in the Exiting Note Purchaser Group (collectively, the
"Replacement Purchaser Group"), provided that if the Exiting Note Purchaser
Group contains a member that is a Co-Administrative Agent, such proposed
Replacement Purchaser Group is reasonably acceptable to the remaining
Co-Administrative Agent. No replacement of an Exiting Note Purchaser Group shall
be effected pursuant to this subsection 2.4(d) if, after giving effect thereto,
any amounts shall be owing to any replaced member of such Exiting Note Purchaser
Group hereunder. Each member of the Exiting Note Purchaser Group hereby agrees
to take all actions necessary to permit the members of the Replacement Note
Purchaser Group to succeed to its rights and obligations hereunder.
2.5 Indemnification.
(a) The Issuer and ALS agree to jointly and severally indemnify and
hold harmless each Co-Administrative Agent, each Agent, each Note Purchaser and
each Affected Party and any director, officer, employee or agent thereof (each
such Person being an "Indemnitee") from and against any and all claims, damages,
losses, liabilities, costs or expenses (including reasonable fees and
out-of-pocket expenses of counsel) whatsoever (including claims under federal or
state securities laws), which the Indemnitee incurs (or which may be claimed
against the Indemnitee) by reason of or in connection with (i) the failure of
the offer and sale by or on behalf of the Issuer, the Transferor or any of their
affiliates of the Notes in accordance with this Agreement and the other Basic
Documents to comply with applicable law, (ii) the failure by the Issuer, the
Transferor, ALS or the Servicer (if the Servicer is ALS or an Affiliate thereof)
to comply with any covenant set forth in this Agreement or any other Basic
Document (provided that ALS shall not be liable for any indemnity arising under
this clause (ii) as a result of the Issuer's failure to increase or replenish
the Letter of Credit after the Closing Date pursuant to Section 3.27 of the
Indenture), (iii) reliance on any written false representation or warranty made
(including reaffirmation) by the Issuer, the Transferor, ALS or the Servicer (if
the Servicer is ALS or an Affiliate thereof) set forth in this Agreement or any
other Basic Document, (iv) the failure to vest in the Indenture Trustee a first
priority perfected security interest in the Trust Estate, (v) any failure of
ALS, as Servicer or otherwise, to perform its duties or obligations in
accordance with the provisions of this Agreement or any of the other Basic
Documents, (vi) third party claims arising from the commingling of Collections
by the Issuer, the Servicer or the Transferor at any time with its other funds
or the funds of another Person, (vii) claims by third parties (including parties
to the Basic Documents only at a time when a Rapid Amortization Event exists and
at all times excluding claims arising among the Agents, Co-Administrative Agents
and Note Purchasers) arising out of the servicing of the Loans or Receivables,
the use or ownership of the Equipment, or the repossession (other than Losses
related to a decline in value of the Equipment repossessed) or operation by the
Servicer or any Affiliate thereof of any item of Equipment or collateral
therefore, but only so long as and with respect for actions taken while ALS is
the Servicer, (viii) any statement, omission or act in connection with the
offering, issuance, sale or delivery of any of the Notes and (ix) claims by
third parties relating to products liability, lender liability or any other
claims by third parties (including parties to the Basic Documents only at a time
when a Rapid Amortization Event exists and at all times excluding claims arising
among the Agents, Co-Administrative Agents and Note Purchasers) arising from the
transactions contemplated by this Agreement or any other Basic Document, except
(A) to the
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extent that any such claim, damage, loss, liability, cost or expense shall be
caused by the bad faith, willful misconduct or gross negligence of an Indemnitee
within the same Equipment Loan Purchaser Group or Receivables Purchaser Group,
as applicable, as the Indemnitee making the claim in performing its obligations
under this Agreement, (B) for recourse as a result of nonpayment by Obligors for
credit reasons on the Accounts or the related Equipment Loans, (C) for recourse
as a result of nonpayment by Obligors for credit reasons on the Accounts or the
related Receivables or (D) to the extent the same constitute consequential,
special or punitive damages. Subject to the limitations set forth above, but
without limiting the generality of the foregoing, the Issuer agrees to indemnify
and hold harmless each Indemnitee from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including at any time following the payment of the obligations under this
Agreement, including payment of the Equipment Loan Note Principal Balance and
payment of the Receivables Note Principal Balance) be imposed on, incurred by or
asserted against such Indemnitee in any way relating to or arising out of this
Agreement, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by any
Indemnitee under or in connection with any of the foregoing; provided that the
Issuer shall not be liable under this sentence for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of an Indemnitee within the same
Equipment Loan Purchaser Group or Receivables Purchaser Group, as applicable, as
the Indemnitee making the claim resulting from its own gross negligence or
willful misconduct. Promptly after receipt by an Indemnitee of notice of the
commencement of any action, such Indemnitee, as the case may be, will, if a
claim in respect thereof is to be made under this subsection 2.5(a), notify the
Issuer and the Transferor in writing of the commencement thereof; provided,
however, the omission to so notify the Issuer or the Transferor will not relieve
the Issuer or the Transferor from any liability which it may have to such
Indemnitee under this subsection 2.5(a) except to the extent the Issuer or the
Transferor was actually prejudiced by the failure to give such notices promptly.
Amounts owing under this Section 2.5(a) by the Issuer shall be due and payable
in accordance with Section 8.2 of the Indenture.
(b) If any action or proceeding (including any governmental
investigation) shall be brought or asserted against any Indemnitee in respect of
which the indemnity provided above may be sought from ALS or the Issuer (the
"Indemnifying Party") each such Indemnitee shall promptly notify the
Indemnifying Party in writing, and the Indemnifying Party may, within a
reasonable time, irrevocably assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnitee and the payment
of all expenses and reasonable legal fees; provided that failure to notify the
Indemnifying Party shall not relieve it from any liability it may have to such
Indemnitee except to the extent that it shall be actually prejudiced thereby;
provided, further, that, the Indemnifying Party shall not be entitled to assume
the defense of any such action or proceeding (i) unless the Indemnifying Party
shall have acknowledged in writing to the Indemnitee that such action or
proceeding is covered by the indemnification set forth in Section 2.5(a), (ii)
if the proceeding is a governmental proceeding involving the possible imposition
of any criminal liability or penalty, (iii) if the relief sought in such action
or proceeding is the seeing of injunctive relief against the Indemnifying Party
affecting property, assets or activity not related to this transaction, or (iv)
in the reasonable opinion of the Indemnitee, such defense or compromise involves
a conflict of interest between such Indemnitee and an Indemnifying Party. The
Indemnitee shall have the right to employ separate counsel in
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any such action and to participate in the defense thereof at the expense of the
Indemnitee; provided, however that the fees and expenses of separate counsel to
the Indemnitee in any such proceeding shall be at the expense of the
Indemnifying Party if (i) the Indemnifying Party has agreed to pay such fees and
expenses, (ii) the Indemnifying Party shall have failed to assume the defense of
such action or proceeding or employ counsel reasonably satisfactory to the
Indemnitee in any such action or proceeding within a reasonable time after the
commencement of such action or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both the Indemnitee and the
Indemnifying Party, and the Indemnitee shall have been advised in writing by
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the Indemnifying Party which
gives rise to a conflict of interest (in which case, if the Indemnitee notifies
the Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnitee, it being understood, however, that the Indemnifying Party shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for the Indemnified Parties, which firm shall be designated in writing by
the Indemnitee and shall be reasonably acceptable to the Indemnitee). The
Indemnifying Party shall not be liable for any settlement of any such action or
proceeding effected without its written consent to the extent that any such
settlement shall be prejudicial to the Indemnifying Party (to which the
Indemnified Party did not consent), but, if settled with its written consent, or
if there is a final non-appealable judgment for the plaintiff in any such action
or proceeding with respect to which the Indemnifying Party shall have received
notice in accordance with this paragraph, the Indemnifying Party agrees to
indemnify and hold the Indemnitees harmless from and against any loss or
liability by reason of such settlement or judgment.
(c) Any Successor Servicer, by accepting its appointment pursuant to
the Pooling and Servicing Agreement, (i) shall agree to be bound by the terms,
covenants and conditions contained herein applicable to the Servicer and to be
subject to the duties and obligations of the Servicer hereunder, (ii) as of the
date of its acceptance, shall be deemed to have made with respect to itself only
the representations and warranties made by the Servicer in Section 4.2 (with
appropriate factual changes) and (iii) shall agree to indemnify and hold
harmless any Indemnitee from and against any and all claims, damages, losses,
liabilities, costs or expenses (including the fees and expenses of counsel)
whatsoever which such Indemnitee may incur (or which may be claimed against such
Indemnitee) by reason of the bad faith, negligence or willful misconduct of such
Servicer in exercising its powers and carrying out its obligations under this
Agreement, the Pooling and Servicing Agreement or any Related Document.
(d) In the event that for any reason, any Note Purchaser receives any
repayment of (i) its share of the Equipment Loan Note Principal Balance (A)
other than on a Distribution Date or (B) on a Distribution Date if less than 2
Business Days' prior notice of such Distribution Date repayment is received
(which notice must specify the amount of such repayment), or (ii) its share of
the Receivables Note Principal Balance upon fewer than 1 Business Day's prior
written notice no later than 3:00 p.m., New York City time (which notice must
specify the amount of such repayment), then in any such case the Issuer agrees
to
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indemnify and hold harmless each affected Note Purchaser against, and to
promptly pay on demand directly to such Note Purchaser the amount equal to any
loss, cost or expense incurred or suffered by such Note Purchaser as a result of
such change, repayment or other action, including any hedge breakage costs and
any loss, cost or reasonable out-of-pocket expense incurred or suffered by such
Note Purchaser (other than loss of profit) by reason of any prepayment expense
incurred or suffered by reason of the liquidation on redeployment of deposits or
other funds prepaid, repaid or otherwise acquired by such Note Purchaser, in
amounts which correspond to its share of the Equipment Loan Note Principal
Balance or Receivables Note Purchase Balance, as applicable. A statement setting
forth in reasonable detail the calculations of any additional amounts payable
pursuant to this Section 2.5 submitted by a Note Purchaser, an Agent, or a
Co-Administrative Agent, as the case may be, to the Issuer, the Transferor and
the Servicer shall be conclusive absent manifest error.
2.6 Expenses, etc.
(a) The Transferor, ALS and the Issuer (with respect to the Issuer, in
accordance with Section 8.2 of the Indenture) agree jointly and severally to pay
on demand (i) to each Co-Administrative Agent, each Agent, the initial Equipment
Loan Note Purchasers, and the initial Receivables Note Purchasers all reasonable
costs and expenses in connection with the preparation, execution, and delivery
of this Agreement and the other documents to be delivered hereunder or in
connection herewith, including the reasonable fees and out-of-pocket expenses of
counsel with respect thereto and the amounts due to Rating Agencies in
connection with their rating of the Notes and their review of the Note
Purchasers' acquisition and funding of the Notes (including all costs incurred
with respect to the confirmation of a CP Conduit's rating on its commercial
paper in connection therewith), (ii) to each Co-Administrative Agent, Agent,
Equipment Loan Note Purchaser and Receivables Note Purchaser, all reasonable
costs and expenses (including reasonable fees and expenses of counsel) in
connection with the preparation, negotiation, execution, delivery, distribution,
review, amendment (including any requested waivers and consents) of this
Agreement or the Related Documents, and (iii) to each Co-Administrative Agent,
Agent, Equipment Loan Note Purchaser and Receivables Note Purchaser, on demand,
all reasonable costs and expenses (including reasonable fees and expenses of
counsel), if any, in connection with the enforcement of this Agreement or any of
the Related Documents, and the other documents delivered thereunder or in
connection therewith. Amounts required to be paid by the Transferor pursuant to
this subsection 2.6(a) shall not be payable from the Trust Estate.
(b) The Servicer agrees to pay on demand any and all stamp, transfer
and other similar taxes (other than Taxes covered by Section 2.4) and
governmental fees payable in connection with the execution, delivery, filing and
recording of any of the Related Documents and each related Support Facility, and
agrees to save each Equipment Loan Note Purchaser, Receivables Note Purchaser,
Agent and Co-Administrative Agent harmless from and against any liabilities with
respect to or resulting from any delay in paying or any omission to pay such
taxes and fees. Amounts required to be paid by the Transferor pursuant to this
subsection 2.6(b) shall not be payable from the Trust Estate.
2.7 Deliveries by Note Purchasers. For the purposes of Sections 2.3,
2.4, 2.5, and 2.6 above, all deliveries required to be made by a Note Purchaser
to the Issuer, the
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Transferor or the Servicer shall be made to each Co-Administrative Agent and to
the Agent for such Note Purchaser's Purchaser Group, and one of such Agents who
in turn shall make such deliveries to the Issuer, the Transferor and/or the
Servicer, as applicable. Such delivery by such Note Purchaser shall not be
deemed made until such Agent for such Purchaser Group makes delivery thereof to
the Issuer, the Transferor and/or the Servicer, as applicable, as provided in
Section 8.2 below.
ARTICLE 3 CONDITIONS PRECEDENT
3.1 Conditions to Initial Purchase. The following shall be conditions
precedent to the initial purchase of the Equipment Loan Notes or Receivables
Notes, as applicable, by the Equipment Loan Note Purchasers or Receivables Note
Purchasers, as applicable:
(a) the representations and warranties of the Issuer, the Servicer and
the Transferor set forth or referred to in Article 4 and all representations and
warranties of the Sellers set forth in the Purchase Agreement shall be true and
correct in all material respects on the Closing Date as though made on and as of
the Closing Date (except for representations and warranties which relate to a
specific date, which shall be true and correct as of such date), and no Rapid
Amortization Event or Event of Default, and no event that, after the giving of
notice or the lapse of time (or both), would constitute a Rapid Amortization
Event or Event of Default, shall have occurred and be continuing on the Closing
Date;
(b) the Applicable Margin Fee Letter shall have been executed and
delivered by the Issuer to each Agent;
(c) the Equipment Loan Notes and the Receivables Notes shall have been
duly issued in accordance with the Indenture;
(d) the Transferor, the Servicer or the Issuer, as applicable, shall
have paid all fees payable on the Closing Date to each Co-Administrative Agent,
as applicable (for its own account or for the accounts of the initial Note
Purchasers), described in the Fee Letter and the Applicable Margin Fee Letter
and all reasonable and appropriately invoiced costs and expenses of the
Co-Administrative Agents and the initial Agents and the Note Purchasers payable
by the Transferor or the Issuer, as applicable, to the extent provided herein,
in connection with the transactions contemplated hereby; and
(e) each Co-Administrative Agent on behalf of the Note Purchasers
shall have received on the Closing Date the following items, each of which shall
be in form and substance satisfactory to each Agent and each Co-Administrative
Agent:
(i) an Officer's Certificate of the Servicer confirming the
satisfaction of the conditions set forth in clause (a) (as to representations
and warranties of the Servicer only) above;
(ii) an Officer's Certificate of the Transferor confirming the
satisfaction of the conditions set forth in clauses (a) (as to representations
and warranties of the Transferor only) and (d) above;
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(iii) an Officer's Certificate of the Issuer confirming the
satisfaction of the conditions set forth in clauses (a) (as to representations
and warranties of the Issuer only) and (c) above;
(iv) a copy of (A) the certificate of formation and limited
liability company agreement or trust agreement, as applicable, of, and an
incumbency certificate with respect to its officers executing any of the Related
Documents on the Closing Date on behalf of, each of the Issuer, the Transferor
and the Servicer, certified by its authorized officer, (B) the Trust Agreement
and an incumbency certificate with respect to officers of the Owner Trustee
executing any of the Related Documents on the Closing Date on behalf of the
Issuer and (C) resolutions of the Board of Managers (or an authorized committee
thereof) of each of the Transferor and the Servicer with respect to the Related
Documents to which it is party, certified by its authorized officer;
(v) a certificate issued no earlier than 30 days prior to the
Closing Date by an appropriate Governmental Authority evidencing the legal
existence and good standing of each of the Servicer as a Delaware limited
liability company and of Transferor as a Delaware limited liability company;
(vi) the favorable written opinions of counsel for the Issuer,
the Owner Trustee, the Indenture Trustee, the Transferor and the Servicer,
addressed to each Co-Administrative Agent, each Agent and each Note Purchaser,
dated the Closing Date, covering general corporate matters, no conflicts with
any applicable law or other agreements, the due execution and delivery of, and
the enforceability of, each of the Basic Documents to which the Issuer, the
Owner Trustee, the Indenture Trustee, the Transferor and the Servicer is party,
true sale/non-consolidation, perfection and priority of security interest
matters, tax characterization of the Issuer and the Notes and such other matters
as each Co-Administrative Agent or its counsel may reasonably request;
(vii) the favorable written opinions of counsel for the Insurer,
addressed to each Administrative Agent, each Agent and each Note Purchaser,
dated the Closing Date, covering general corporate matters, the due execution
and delivery of, and the enforceability of, each of the Basic Documents to which
the Insurer is party
(viii) evidence of the due execution and delivery by the Owner
Trustee, on behalf of the Trust, and the Indenture Trustee of the Related
Documents to which each is party;
(ix) an executed copy of each of the Transfer and Servicing
Agreements, the Indenture, the Trust Agreement, the Administration Agreement,
the Control Agreement and each of the other Basic Documents;
(x) a certificate of the Indenture Trustee as to the
establishment of certain accounts as provided in the Pooling and Servicing
Agreement;
(xi) the duly executed Equipment Loan Note(s) registered in the
name of each Agent as nominee on behalf of the Equipment Loan Note Owners in its
Purchaser Group or, if requested by such Agent, in the name of the relevant
Primary Purchaser;
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(xii) the duly executed Receivables Note(s) registered in the
name of each Agent as nominee on behalf of the Receivables Note Owners in its
Purchaser Group or, if requested by such Agent, in the name of the relevant
Primary Purchaser;
(xiii) evidence satisfactory to each Co-Administrative Agent that
financing statements duly executed by ALS, each Seller, Alliance Equipment
Receivables and the Issuer or other, similar instruments or documents, as may be
necessary or, in the opinion of any Co-Administrative Agent, Agent or Note
Purchaser, desirable under the Uniform Commercial Code of all appropriate
jurisdictions or any comparable law to perfect the transfers (including grants
of security interests) under the Related Documents have been delivered and, if
appropriate, have been duly filed or recorded and that all filing fees, taxes or
other amounts required to be paid in connection therewith have been paid;
(xiv) certified copies of requests for information or copies (or
a similar search report certified by a party acceptable to each
Co-Administrative Agent), dated a date reasonably near to the Closing Date,
listing all effective financing statements which name ALS or any Seller (under
its present name and any previous name) as debtor and which are filed in the
jurisdictions in which the statements referred to in clause (xiii) above were or
are to be filed, together with copies of such financing statements (none of
which, other than financing statements naming the party under the Related
Documents to which transfers (including grants of security interests) thereunder
purport to have been made shall cover any of the property purported to be
conveyed thereunder);
(xv) evidence satisfactory to each Co-Administrative Agent that
the Notes are rated Aaa by Moody's with shadow ratings of Baa2 and AAA by
Standard & Poor's with shadow ratings of BBB;
(xvi) evidence satisfactory to each initial CP Conduit that its
purchase of Equipment Loan Notes and Equipment Loan Advance Increases hereunder
(if any) will not result in a reduction or withdrawal of the rating of its
Commercial Paper by the Rating Agencies;
(xvii) evidence satisfactory to each initial CP Conduit that its
purchase of Receivables Notes and Receivables Advance Increases hereunder (if
any) will not result in a reduction or withdrawal of the rating of its
Commercial Paper by the Rating Agencies;
(xviii) an executed copy of a membership agreement between SPARC
and the Issuer;
(xix) an executed copy of each agreement, in a form acceptable to
each Co-Administrative Agent, necessary for the termination of all agreements
and security interests relating to the warehouse facility in the form attached
hereto as Exhibit C; and
(xx) such additional documents, instruments, certificates or
letters as any Co-Administrative Agent, Agent or Note Purchaser may reasonably
request.
3.2 Condition to Additional Purchases. The following shall be
conditions precedent to the obligation of any Note Purchaser to purchase its
share of the Equipment Loan Initial Advance, any Equipment Loan Advance
Increase, Receivables Initial Advance or any
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Receivables Advance Increase, as applicable, on any Purchase Date (including the
Closing Date);
(a) except in the case of the initial purchase on the Closing Date,
each Agent shall have timely received a properly completed Advance Increase
Notice;
(b) (i) all interest, fees, expenses and all other amounts then due
and payable to any Co-Administrative Agent, Note Purchaser or Agent hereunder
shall have been paid, and (ii) no Rapid Amortization Event or Event of Default,
and no event that, after the giving of notice or the lapse of time (or both),
would constitute a Rapid Amortization Event or Event of Default, shall have
occurred and be continuing that has not been waived in writing by the Control
Party;
(c) (i) in the case of the Closing Date, all conditions to the
issuance of the Notes set forth in the Indenture or any other Related Document
shall have been satisfied, (ii) in the case of any Equipment Loan Borrowing
Date, all conditions to the occurrence of the Equipment Loan Advance Increase to
occur on such Equipment Loan Borrowing Date set forth in the Indenture or any
other Related Document shall have been satisfied and (iii) in the case of any
Receivables Borrowing Date, all conditions to the occurrence of the Receivables
Advance Increase to occur on such Receivables Borrowing Date set forth in the
Indenture or any other Related Document shall have been satisfied;
(d) after giving effect to the issuance of the Equipment Loan Notes,
the issuance of the Receivables Notes, the Equipment Loan Advance Increase or
the Receivables Advance Increase, as applicable, all representations and
warranties of the Transferor, the Issuer, the Seller and the Servicer contained
herein or made or reaffirmed on the related Purchase Date in the Related
Documents, or otherwise made in writing pursuant to any of the provisions hereof
or thereof, shall be true and correct in all material respects with the same
force and effect as though such representations and warranties had been made on
and as of such date (other than representations and warranties which
specifically relate to an earlier date, which shall be true and correct in all
material respects as of such earlier date);
(e) after giving effect to the issuance of the Equipment Loan Notes or
the Equipment Loan Advance Increase to occur on such Purchase Date, the
Equipment Loan Note Principal Balance shall be equal to or less than the lesser
of (i) the Equipment Loan Facility Limit and (ii) the Equipment Loan Borrowing
Base as set forth in the related Advance Increase Notice;
(f) after giving effect to the issuance of the Receivables Notes or
the Receivables Advance Increase to occur on such Purchase Date, the Receivables
Note Principal Balance shall be equal to or less than the lesser of (i) the
Receivables Facility Limit and (ii) the Receivables Borrowing Base as set forth
in the related Advance Increase Notice;
(g) (i) after giving effect to the issuance of the Equipment Loan
Notes on the Closing Date, the Weighted Average Life of the Eligible Loans in
the Trust shall not be greater than 3.5 years and (ii) after giving effect to
any Equipment Loan Advance Increase to occur on any Purchase Date, (x) the
Weighted Average Life of the Eligible Loans in the Trust shall not
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have been greater than 3.5 years for the period of 6 consecutive calendar months
ending on such Purchase Date and (y) if the Weighted Average Life of the
Eligible Loans in the Trust shall be greater than 3.5 years on such Purchase
Date, the Weighted Average Life of the Eligible Loans in the Trust after giving
effect to such Equipment Loan Advance Increase shall be less than the Weighted
Average Life of the Eligible Loans in the Trust before giving effect to such
Equipment Loan Advance Increase;
(h) after giving effect to the issuance of the Equipment Loan Notes or
the Equipment Loan Advance Increase to occur on such Purchase Date, the weighted
average effective interest rate of Equipment Loans with fixed interest rates in
the Trust shall not be less than 9.50% per annum;
(i) after giving effect to the issuance of the Equipment Loan Notes or
the Equipment Loan Advance Increase to occur on such Purchase Date, the
aggregate Loan Balance (net of security deposits) of all Equipment Loans with
fixed interest rates in the Trust shall not be greater than (x) $100,000,000 (if
such date is on or prior to the 25th Distribution Date) or (y) $110,000,000 at
any time thereafter; and
(j) in the case of each Equipment Loan Borrowing Date and Receivables
Borrowing Date, the Issuer shall have delivered to each Agent an Officer's
Certificate dated such Equipment Loan Borrowing Date or Receivables Borrowing
Date, as applicable, certifying that the applicable conditions described in
subsections 3.2(a) through 3.2(g) have been satisfied;
(k) the Conversion Date shall not have occurred.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Issuer. The Issuer
represents and warrants to the Note Purchasers, the Agents and the
Co-Administrative Agents that the representations and warranties of the Issuer
set forth in the Transfer and Servicing Agreements, the Indenture and the other
Related Documents to which it is a party are true and correct as of the date
hereof (except for representations or warranties which relate to a specific
date, which shall be true and correct as of such date).
4.2 Representations and Warranties of the Transferor and the Servicer.
Each of the Transferor and the Servicer severally (each with respect to itself
only) represents and warrants to the Note Purchasers, the Agents and the
Co-Administrative Agents that its representations and warranties (as Transferor
or Servicer, as applicable) set forth in the Pooling and Servicing Agreement and
the other Related Documents to which it is a party are true and correct as of
the date hereof (except for representations or warranties which relate to a
specific date, which shall be true and correct as of such date).
4.3 Representations and Warranties of the Note Purchasers. Each of the
Note Purchasers severally (each with respect to itself only) represents and
warrants to, and agrees with, the Issuer, the Servicer and the Transferor that:
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(a) Such Note Purchaser is duly authorized to enter into and perform
this Agreement and its respective Investment Letter and has duly executed and
delivered this Agreement and such Investment Letter;
(b) This Agreement constitutes the valid and binding obligation of
such Note Purchaser, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, receivership and other laws relating to,
or affecting generally, the enforcement of creditors' rights and remedies as the
same may be applied in the event of the bankruptcy, insolvency, reorganization,
receivership or liquidation or a similar event of such Note Purchaser or a
moratorium applicable to such Note Purchaser and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity); and
(c) No registration with, consent or approval of or other action by
any federal, state, or other Governmental Authority or regulatory body having
jurisdiction over such Note Purchaser is required in connection with the
execution, delivery or performance by such Note Purchaser of this Agreement.
ARTICLE 5 COVENANTS
5.1 Covenants. Each of the Issuer, the Transferor, the Seller and the
Servicer severally covenants and agrees, in each case as to itself individually
or in such respective capacities, each with respect to itself only, until
termination of this Agreement as provided herein, unless the Required Equipment
Loan Note Owners, the Required Equipment Loan Note Purchasers, the Required
Receivables Note Owners and the Required Receivables Note Purchasers shall
otherwise consent in writing, that:
(a) Unless waived in writing by the Control Party, each of the Issuer,
the Transferor, the Seller and the Servicer, as applicable, shall perform in all
material respects each of the respective agreements and warranties applicable to
it under the Related Documents to which it is a party and comply in all material
respects with each of the respective terms and provisions applicable to it under
the Related Documents to which it is party, which agreements and warranties are
hereby incorporated by reference into this Agreement as if set forth herein in
full;
(b) The Transferor, the Issuer and the Servicer, as applicable, shall
promptly furnish to each Agent and Co-Administrative Agent (i) a copy of each
certificate, report, statement, notice or other communication furnished by or on
behalf of the Transferor, the Issuer or the Servicer, as applicable, to the
holders of Notes concurrently therewith, and (ii) such other information,
documents, records or reports respecting the Equipment Loans and Receivables,
the Issuer, the Transferor or the Servicer which is in the possession or under
the control of the Issuer, the Transferor or the Servicer, as the case may be,
as any Co-Administrative Agent may from time to time reasonably request;
(c) Without limitation of the provisions of subsection 5.1(b) above,
the Servicer (with respect to clauses (i), (ii) and (iii) of this subsection
5.1(c)) and the Issuer (with respect to clause (iv) of this subsection 5.1(c))
shall furnish to each Agent (i) with respect to each Distribution Date, a copy
of the completed Monthly Report furnished to each initial Noteholder,
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the Insurer and the Rating Agencies pursuant to Section 5.08 of the Pooling and
Servicing Agreement, (ii) a copy of each annual certified public accountants'
reports received by the Indenture Trustee, the Owner Trustee, the Servicer and
the Insurer pursuant to Section 5.02(a) of the Pooling and Servicing Agreement,
(iii) a copy of each Officer's Certificate of the Servicer furnished to the
Indenture Trustee, the Owner Trustee and the Insurer pursuant to Section 5.01(a)
of the Pooling and Servicing Agreement and (iv) a copy of each Opinion of
Counsel delivered pursuant to subsection 3.6 or Section 12.1 of the Indenture);
(d) Each of the Issuer, the Transferor and the Seller, as applicable,
shall furnish to each Agent promptly after known to such party, information with
respect to any action, suit or proceeding involving such party or any of its
Affiliates by or before any court or any Governmental Authority which, if
adversely determined, would be reasonably likely to result in a material and
adverse effect on the transactions contemplated by, or such party's ability to
perform its obligations under, this Agreement or the Related Documents;
(e) From the date hereof until the termination date of this Agreement,
unless waived by the Control Party, each of the Issuer, the Transferor and the
Servicer, as applicable, will comply with the provisions set forth in Section
5.03 of the Pooling and Servicing Agreement;
(f) The Transferor and Servicer shall furnish to each Agent, promptly
after the occurrence of any Rapid Amortization Event or Event of Default, a
certificate of an appropriate officer of the Transferor setting forth the
information provided in the certificate delivered pursuant to subsection 4.1(k)
of the Indenture;
(g) The Transferor, the Issuer and the Servicer, as applicable, shall
comply with the provisions set forth in Section 9.2 of the Indenture; and
(h) Each statement of the Servicer delivered in accordance with
Section 12.1 of the Indenture shall be correct in all material respects and
shall have been prepared, in all material respects, in accordance with the
applicable provisions of the Related Documents.
ARTICLE 6 THE NOTE AGENTS
6.1 Authorization and Action of the Note Agents. (a) Each Note
Purchaser hereby appoints and authorizes each Co-Administrative Agent to take
such action as agent on its behalf and to exercise such powers under this
Agreement, the Indenture, any Transfer and Servicing Agreement and any other
Related Documents as are delegated to any Administrative Agent by the terms
hereof and thereof, together with such powers as are reasonably incidental
thereto. Each Note Purchaser in each Purchaser Group hereby appoints and
authorizes the Agent for such Purchaser Group as the agent of such Note
Purchaser under this Agreement to take such action as agent on its behalf and to
exercise such powers under this Agreement, the Indenture, the Pooling and
Servicing Agreement and any other Related Documents as are delegated to such
Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, neither any Administrative Agent nor any Agent
(each Co-Administrative Agent and Agent being referred to in this Article as a
"Note Agent") shall have any duties or responsibilities, except those expressly
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set forth herein, or any fiduciary relationship with any Note Purchaser, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against any
Note Agent. In furtherance, and without limiting the generality of the
foregoing, each CP Conduit and each Committed Purchaser hereby appoints the
Co-Administrative Agent and the applicable Agent as its agent to execute and
deliver all further instruments and documents, and agrees to take all further
action that the Co-Administrative Agent or Agent, as applicable, may deem
necessary or appropriate or that a CP Conduit or a Committed Purchaser may
reasonably request in order to perfect, protect or more fully evidence the
interests transferred or to be transferred from time to time by the Transferor
or the Issuer hereunder, or to enable any of them to exercise or enforce any of
their respective rights hereunder. With respect to actions which are incidental
to the actions specifically delegated to any Agent hereunder, such Agent shall
not be required to take any such incidental action hereunder, but shall be
required to act or to refrain from acting (and shall be fully protected in
acting or refraining from acting) upon the direction of the Co-Administrative
Agent or upon the direction of the Note Purchaser in its Purchaser Group;
provided, however, no Note Agent shall be required to take any action hereunder
if the taking of such action, in the reasonable determination of such Note
Agent, shall be in violation of any applicable law, rule or regulation or
contrary to any provision of this Agreement or shall expose such Note Agent to
liability hereunder or otherwise. Each Note Agent shall exercise such rights and
powers vested in it by this Agreement, the Indenture, the Pooling and Servicing
Agreement and any other Related Documents, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) No Note Agent shall be deemed to have knowledge or notice of the
occurrence of any breach of this Agreement or the occurrence of any Rapid
Amortization Event or Event of Default unless such Note Agent has received
notice from the Issuer, the Transferor, the Servicer, the Indenture Trustee or
any Note Purchaser, referring to this Agreement and describing such event. In
the event that any Co-Administrative Agent receives such a notice, it shall
promptly give notice thereof to each Co-Administrative Agent and Agent, and in
the event any Agent receives such a notice, it shall promptly give notice
thereof to the Note Purchasers in its Purchaser Group. Each Co-Administrative
Agent and Agent shall take such action with respect to such event as shall be
reasonably directed by (i) the Required Equipment Loan Owners, (ii) the Required
Receivables Owners, (iii) the Required Equipment Loan Purchasers and (iv) the
Required Receivables Purchasers; provided, that unless and until such Note Agent
shall have received such directions, such Co-Administrative Agent or Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such event as it shall deem advisable in the best
interests of the Note Purchasers or of the Note Purchasers in its Purchaser
Group, as applicable.
(c) The Co-Administrative Agents shall not, without the prior written
consent of each Agent and each Note Purchaser, agree or consent to any
amendment, modification or waiver of any provision of this Agreement, the
Transfer and Servicing Agreements or the Indenture which would in any way (i)
reduce, impair or change the timing of payments required to be made by the
Transferor, the Issuer or the Servicer or the application of the proceeds of
such payments, (ii) increase the Servicing Fee, (iii) release any material
portion of the property subject to the liens provided by the Pooling and
Servicing Agreement and the Indenture (other than as expressly contemplated
herein or therein) or (iv) permit the appointment of any Person (other
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than the Back-up Servicer) as Successor Servicer. No Agent shall agree to any
amendment of this Agreement which increases the dollar amount of the commitment
of its related Committed Purchaser without the prior consent of such Committed
Purchaser. In addition, each Agent agrees that it shall not agree to any
amendment of this Agreement not specifically described in the two preceding
sentences without the consent of the Committed Purchasers and the related CP
Conduit (if any) in its Purchaser Group. In the event the Agent requests a
Person's consent pursuant to the foregoing provisions and the Agent does not
receive a response to such request (either positive or negative) from such
Person within 10 Business Days of such Person's receipt of such request, then
such Person (and its percentage interest hereunder) shall be disregarded in
determining whether the Agent shall have obtained sufficient consent hereunder.
(d) Each Note Agent may execute any of its duties under any of the
Related Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
No Note Agent shall be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
6.2 Note Agent's Reliance, Etc. Neither any Note Agent nor any of its
directors, officers, agents or employees shall be liable to any CP Conduit or
Committed Purchaser for any action taken or omitted to be taken by it or them as
a Note Agent under or in connection with this Agreement, the Indenture, the
Transfer and Servicing Agreements or any other Related Document, except for its
or their own gross negligence or willful misconduct. Without limiting the
foregoing, each Note Agent: (i) may consult with legal counsel (including
counsel for the Transferor, the Issuer or the Servicer), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to any CP Conduit or any Committed Purchaser and shall not be
responsible to any CP Conduit or any Committed Purchaser for any statements,
warranties or representations made in or in connection with this Agreement;
(iii) shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of this Agreement,
the Indenture, any Transfer and Servicing Agreement or any other Related
Document on the part of the Transferor, the Issuer or the Servicer or to inspect
the property (including the books and records) of the Transferor, the Issuer or
the Servicer; (iv) shall not be responsible to any CP Conduit or any Committed
Purchaser for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the Indenture, any Transfer
and Servicing Agreement or any other Related Document or any other instrument or
document furnished pursuant hereto or thereto; and (v) shall incur no liability
to any CP Conduit or Committed Purchaser under or in respect of this Agreement,
the Indenture, any Transfer and Servicing Agreement or any other Related
Document by acting upon any notice (including notice by telephone), consent,
certificate or other instrument or writing (which may be by telex) believed by
it to be genuine and signed or sent by the proper party or parties. Each Note
Agent shall be fully justified in failing or refusing to take any action under
any of the Related Documents unless it shall first receive such advice or
concurrence of the Required Equipment Loan Note Owners, the Required Equipment
Loan Note Purchasers, the Required Receivables Note Owners and the Required
Receivables Note Purchasers as it deems appropriate or it shall first be
indemnified to its satisfaction by (A) in the case of the Co-Administrative
Agents, the Committed Purchasers or (B) in the case of an Agent, the Committed
Purchasers in its Purchaser Group, against any and all liability and expense
which may be incurred by it by
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reason of taking or continuing to take any such action. Each Co-Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under any of the Related Documents in accordance with a request of (i)
the Required Equipment Loan Note Owners, (ii) the Required Equipment Loan Note
Purchasers, (iii) the Required Receivables Note Owners and (iv) the Required
Receivables Note Purchasers (or their Agents), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all present and
future Equipment Loan Note Purchasers and Receivables Note Purchasers. Each
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under any of the Related Documents in accordance with a request of (i)
the Required Equipment Loan Owners, (ii) the Required Receivables Owners, (iiii)
the Required Equipment Loan Purchasers and (iv) the Required Receivables
Purchasers, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all present and future Equipment Loan Note
Purchasers or Receivables Note Purchasers in such Purchaser Group.
6.3 Credit Decision. Each CP Conduit and each Committed Purchaser
acknowledges that it has, independently and without reliance upon either
Co-Administrative Agent, any of the Co-Administrative Agents' Affiliates, any
Agent, any other Committed Purchaser or any other CP Conduit and based upon such
documents and information as it has deemed appropriate, made its own evaluation
and decision to enter into this Agreement, the Indenture, any Transfer and
Servicing Agreement and any other Related Documents to which it is a party and,
if it so determines, to accept the transfer to its related Agent on its behalf
of its interest in the Equipment Loan Note or Receivables Note, as applicable,
hereunder. Each CP Conduit and each Committed Purchaser also acknowledges that
it will, independently and without reliance upon any Co-Administrative Agent,
any of the Co-Administrative Agents' Affiliates, any Agent, any other Committed
Purchaser or any other CP Conduit and based on such documents and information as
it shall deem appropriate at the time, continue to make its own decisions in
taking or not taking action under this Agreement, the Indenture, any Transfer
and Servicing Agreement and any other Related Documents to which it is a party.
Except, in the case of a Note Agent, for notices, reports and other documents
received by such Note Agent under Section 5.1, no Note Agent shall have any duty
or responsibility to provide any Note Purchaser with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Transferor, the Servicer,
the Issuer, the Accounts, the Equipment Loans, the Receivables or the Indenture
Trustee which may come into the possession of such Note Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
6.4 Indemnification of each Note Agent. (i) The Committed Purchasers
agree to indemnify each Co-Administrative Agent in its capacity as such (without
limiting the obligation (if any) of the Issuer, the Transferor and the Servicer
to reimburse each Co-Administrative Agent for any such amounts), ratably
according to their respective Commitments (or, if the Commitments have
terminated, Percentage Interests), and (ii) the Committed Purchasers in each
Purchaser Group agree to indemnify the Agent for such Purchaser Group in its
capacity as such (without limiting the obligation (if any) of the Issuer, the
Transferor and the Servicer to reimburse such Agent for any such amounts),
ratably according to their respective Commitments (or, if the Commitments have
terminated, Percentage Interests), in each case from and against any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on,
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incurred by, or asserted against such Note Agent (in its capacity as such) in
any way relating to or arising out of this Agreement, the Indenture, the
Transfer and Servicing Agreements and the other Related Documents or such action
taken or omitted by such Note Agent hereunder or thereunder, provided that such
Committed Purchaser shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Note Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, the Committed
Purchasers agree to reimburse such Note Agent, ratably according to their
Commitments (or, if the Commitments have terminated, Percentage Interests),
promptly upon demand for any out-of-pocket expenses (including counsel fees)
incurred by such Note Agent in connection with the administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, the Indenture, any Transfer and Servicing Agreement and any
other Related Documents, to the extent that such expenses are incurred in the
interests of or otherwise in respect of the CP Conduits or the Committed
Purchasers hereunder and/or thereunder and to the extent that such Note Agent is
not reimbursed for such expenses by the Transferor, the Issuer or the Servicer.
The agreements in this Section 6.4 shall survive the payment of the obligations
under this Agreement, including the Equipment Loan Note Principal Balance and
the Receivables Note Principal Balance.
6.5 Agents in their Individual Capacity. Each Note Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Issuer, the Transferor or the Servicer as though such
Note Agent were not an agent hereunder. In addition, the Note Purchasers
acknowledge that one or more Persons which are Note Agents may act (i) as
administrator, sponsor or agent for one or more CP Conduits and in such capacity
act and may continue to act on behalf of each such CP Conduit in connection with
its business, and (ii) as the agent for certain financial institutions under the
liquidity and credit enhancement agreements relating to this Agreement to which
any one or more CP Conduits is party and in various other capacities relating to
the business of any such CP Conduit under various agreements. Any such Person,
in its capacity as Note Agent, shall not, by virtue of its acting in any such
other capacities, be deemed to have duties or responsibilities hereunder or be
held to a standard of care in connection with the performance of its duties as a
Note Agent other than as expressly provided in this Agreement. Any Person which
is a Note Agent may act as a Note Agent without regard to and without additional
duties or liabilities arising from its role as such administrator or agent or
arising from its acting in any such other capacity.
6.6 Successor Co-Administrative Agent; Successor Agent. Each
Co-Administrative Agent may resign at any time, effective upon the appointment
and acceptance of a successor Administrative Agent as provided below, by giving
written notice thereof to each Agent, each CP Conduit, each Committed Purchaser,
the Indenture Trustee, the Issuer, the Transferor and the Servicer. If an
Administrative Agent shall resign as Co-Administrative Agent under this
Agreement, then the Required Equipment Loan Note Purchasers, the Required
Equipment Loan Note Owners, the Required Receivables Note Purchasers and the
Required Receivables Note Owners, in each case for all Purchaser Groups, shall
appoint from among the Committed Purchasers a successor administrative agent. If
no such successor Co-Administrative Agent shall have been so appointed, and
shall have accepted such appointment, within thirty (30) days after such
retiring Co-Administrative Agent's giving of notice of resignation, then such
retiring Co-Administrative Agent may, on behalf of the Note Purchasers, appoint
a successor Co-
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Administrative Agent with the prior consent of the Agents (which such consent
will not be unreasonably withheld) which such successor Co-Administrative Agent
shall be either (i) a commercial bank or other financial institution organized
under the laws of the United States or of any state thereof and having a
combined capital and surplus of at least $50,000,000 or (ii) an Affiliate of
such a Person of the type described in clause (i). Any Agent may resign at any
time, effective upon the appointment and acceptance of a successor Agent as
provided below, by giving written notice thereof to the Note Purchasers in its
Purchaser Group, each Co-Administrative Agent and each other Agent, the
Indenture Trustee, the Issuer, the Transferor and the Servicer. If an Agent
shall resign as Agent under this Agreement, then the Required Equipment Loan
Note Purchasers and the Required Equipment Loan Note Owners or the Required
Receivables Note Purchasers and the Required Receivables Note Owners, in each
case for the applicable Purchaser Group, shall appoint from among the Committed
Purchasers in such Purchaser Group a successor agent for such Purchaser Group.
If no such successor Agent shall have been so appointed, and shall have accepted
such appointment, within thirty (30) days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the CP Conduits
and the Committed Purchasers in such Purchaser Group, appoint a successor Agent
for such group which shall be either (i) a commercial bank or other financial
institution organized under the laws of the United States or of any state
thereof and having a combined capital and surplus of at least $50,000,000 or
(ii) an Affiliate of such a Person of the type described in clause (i). An Agent
that is in the same Purchaser Group as Bear ▇▇▇▇▇▇▇ shall (subject to such
conditions as such Agent and Bear ▇▇▇▇▇▇▇ may mutually agree) resign upon the
written request of the Committed Purchasers in its Purchaser Group and will
thereupon assign to such Committed Purchasers all of its rights under its Note
and the other Transaction Documents. Such Agent shall promptly notify the
Indenture Trustee of such assignment and any corresponding changes in wiring
instructions. Upon the acceptance of any appointment as a Note Agent hereunder
by a successor Note Agent, such successor Note Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
applicable retiring Note Agent accruing after the date of its appointment, and
the retiring Note Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring Note Agent's resignation hereunder as
Note Agent, the provisions of this Article VI shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it while it was such
Note Agent under this Agreement.
6.7 Payments by an Agent. Unless specifically allocated to a CP
Conduit or a Committed Purchaser pursuant to the terms of this Agreement, all
amounts received by an Agent on behalf of the related CP Conduit(s) or Committed
Purchasers) shall be paid by such Agent to such CP Conduit(s) or Committed
Purchaser(s), as applicable (at the account specified in writing to such Agent)
on the Business Day received by such Agent, unless such amounts are received
after 12:00 noon (New York time) on such Business Day, in which case such Agent
shall use its reasonable efforts to pay such amounts, on such Business Day, but,
in any event, shall pay such amounts not later than 11:00 a.m. (New York time)
the following Business Day.
ARTICLE 7 SECURITIES LAWS; TRANSFERS
7.1 Transfers of Notes.
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(a) Each Note Purchaser shall execute and deliver to the Issuer and
the Transferor on the Closing Date an Investment Letter substantially in the
form attached as Exhibit F to the Indenture Each Note Owner agrees that the
interest in the Equipment Loan Notes or Receivables Notes, as applicable,
purchased by it will be acquired for investment only and not with a view to any
public distribution thereof, and that such Equipment Loan Note Owner or
Receivables Note Owner, as applicable, will not offer to sell or otherwise
dispose of any Equipment Loan Note or Receivables Note, as applicable, acquired
by it (or any interest therein) in violation of any of the requirements of the
Securities Act or any applicable state or other securities laws. Each Equipment
Loan Note Owner and Receivables Note Owner acknowledges that it has no right to
require the Issuer or the Transferor to register, under the Securities Act, as
amended, or any other securities law, the Equipment Loan Notes or the
Receivables Notes (or any interest therein) acquired by it pursuant to this
Agreement or any Transfer Supplement. Each Equipment Loan Note Owner and
Receivables Note Owner hereby confirms and agrees that in connection with any
transfer or syndication by it of an interest in the Equipment Loan Notes or
Receivables Notes, as applicable, such Equipment Loan Note Owner or Receivables
Note Owner has not engaged and will not engage in a general solicitation or
general advertising including advertisements, articles, notices or other
communications published in any newspaper, magazine or similar media or
broadcast over radio or television, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(b) Each initial purchaser of an Equipment Loan Note or Receivables
Note or any interest therein and any Assignee thereof or Participant therein
shall certify to the Issuer, the Transferor, the Servicer, the Indenture
Trustee, each Co-Administrative Agent and the Agent for its Purchaser Group that
it is either (i) a citizen or resident of the United States, (ii) a corporation
or other entity organized in or under the laws of the United States or any
political subdivision thereof or (iii) a person not described in (i) or (ii) who
is entitled to receive payments under this Agreement and with respect to the
Equipment Loan Notes or Receivables Notes, as applicable, without deduction or
withholding of any United States federal income taxes and whose ownership of any
interest in an Equipment Loan Note or a Receivables Note, as applicable, will
not result in any withholding obligation with respect to any payments with
respect to the Equipment Loan Notes or the Receivables Notes, as applicable, by
any Person and who will furnish to the Issuer, the Transferor, the Servicer, the
Indenture Trustee, each Co-Administrative Agent, the Agent for its Purchaser
Group, and to the Equipment Loan Note Owner or Receivables Note Owner making the
Transfer the forms described in subsection 2.4(c).
(c) Any sale, transfer or other disposition (but not Participation,
Assignment, pledge or hypothecation) (any such non-excluded disposition being
referred to herein as a "Transfer") of an Equipment Loan Note, Receivables Note
or any interest therein may be made only in accordance with this Section 7.1(c)
and the Indenture. Any partial Transfer of an interest in an Equipment Loan
Note, a Receivables Note, a Commitment or any Purchaser Percentage by a
Committed Purchaser shall be in respect of, at least $5,000,000 in the
aggregate, which may be composed of (A) Equipment Loan Note Principal Balance or
Receivables Note Principal Balance, as applicable, or (B) to the extent in
excess of the Equipment Loan Note Principal Balance or Receivables Note
Principal Balance, as applicable, subject to such Transfer, Commitment
hereunder. Any Transfer of an interest in an Equipment Loan Note or Receivables
Note otherwise permitted by this Section 7.1 will be permitted only if it
consists of a pro rata
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percentage interest in all payments made with respect to the Note Purchaser's
interest in such Note. Unless the Transfer occurs between members of the same
Purchaser Group, no Equipment Loan Note or Receivables Note or any interest
therein may be Transferred to any Person (each, a "Transferee") unless prior to
the Transfer the Transferee shall have executed and delivered to the Agent, the
Issuer, the Transferor and the Servicer an Investment Letter.
Each of the Issuer, the Transferor and the Servicer authorizes
each Note Purchaser to disclose to any Transferee and Support Party and to any
prospective Transferee or Support Party which is a Permitted Transferee any and
all confidential information in the Note Purchaser's possession concerning this
Agreement or the Related Documents or concerning the Accounts, the Equipment
Loans or the Receivables, as applicable, or such party which has been delivered
to any Agent or such Note Purchaser pursuant to this Agreement or the Related
Documents (including information obtained pursuant to rights of inspection
granted hereunder) or which has been delivered to such Note Purchaser by or on
behalf of the Issuer, the Transferor and the Servicer in connection with such
Note Purchaser's credit evaluation of the Accounts, the Equipment Loans or the
Receivables, as applicable, the Issuer, the Transferor or the Servicer prior to
becoming a party to, or purchasing an interest in this Agreement, the Equipment
Loan Notes or the Receivables Notes.
(d) Each Equipment Loan Note Purchaser or Receivables Note Purchaser
may, in accordance with applicable law, at any time grant participations in all
or part of its Commitment or its interest in the Equipment Loan Notes or
Receivables Notes, as applicable, including the payments due to it under this
Agreement and the Related Documents (each, a "Participation"), to any Permitted
Transferee (each such Permitted Transferee, a "Participant"); provided, however,
that no Participation shall be granted to any Person (i) until such Person,
unless such Person is a member of the same Purchaser Group, shall have executed
and delivered to the Agent, the Issuer, the Transferor and the Servicer an
Investment Letter, (ii) unless and until the Agent for such Equipment Loan Note
Purchaser's Purchaser Group or Receivables Note Purchaser's Purchaser Group
shall have consented thereto, and (iii) that such Participation consists of a
pro rata percentage interest in all payments made with respect to such Equipment
Loan Note Purchaser's or Receivables Note Purchaser's beneficial interest (if
any) in the Equipment Loan Notes or Receivable Notes, as applicable. In
connection with any such Participation, each Agent for a Purchaser Group shall
maintain a register of each Participant of members of its Purchaser Group and
the amount of each related Participation. Each Equipment Loan Note Purchaser and
Receivables Note Purchaser hereby acknowledges and agrees that (A) any such
Participation will not alter or affect such Equipment Loan Note Purchaser's or
Receivables Note Purchaser's direct obligations hereunder, and (B) neither the
Indenture Trustee, the Transferor, the Issuer nor the Servicer shall have any
obligation to have any communication or relationship with any Participant. Each
Equipment Loan Note Purchaser, Receivables Note Purchaser and each Participant
shall comply with the provisions of subsection 2.4(c). No Participant shall be
entitled to Transfer all or any portion of its Participation, without the prior
written consent of the Agent for its Purchaser Group and having complied with
the requirements set forth in this subsection 7.1(d). Each Participant shall be
entitled to receive additional amounts and indemnification pursuant to Sections
2.3, 2.4 and 2.5 as if such Participant were an Equipment Loan Note Purchaser or
Receivables Note Purchaser, as applicable, and such Sections applied to its
Participation; provided, in the case of Section 2.4, that such Participant has
complied with the provisions of subsection 2.4(c) as if it were an
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Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable. Each
Equipment Loan Note Purchaser and Receivables Note Purchaser shall give the
Agent for its Purchaser Group notice of the consummation of any sale by it of a
Participation. It shall be a further condition to the grant of any Participation
that the Participant shall have certified, represented and warranted that (i) it
is entitled to (A) receive payments with respect to its participation without
deduction or withholding of any United States federal income taxes and (B) an
exemption from United States backup withholding, and (ii) to the extent such
Participant has not otherwise directly provided such forms to the Servicer and
the Indenture Trustee, (A) prior to the date on which the first interest payment
is due to such Participant, such Participant will provide to the Servicer, the
Transferor and Indenture Trustee, the forms described in subsection 2.4(c) as
though the Participant were an Equipment Loan Note Purchaser or Receivables Note
Purchaser, as applicable, and (B) such Participant similarly will provide
subsequent forms as described in subsection 2.4(c) with respect to such
Participant as though it were an Equipment Loan Note Purchaser or Receivables
Note Purchaser, as applicable.
(e) Each Equipment Loan Note Purchaser and Receivables Note Purchaser
may, with the consent of the Agent for its Purchaser Group and in accordance
with applicable law and the Indenture, sell or assign (each, an "Assignment"),
to any Permitted Transferee (each, an "Assignee") all or any part of its
Commitment (if any) or its interest in the Equipment Loan Notes or the
Receivables Notes, as applicable, and its rights and obligations under this
Agreement and the Related Documents pursuant to an agreement substantially in
the form attached hereto as Exhibit A hereto (a "Transfer Supplement"), executed
by such Assignee and the Equipment Loan Note Purchaser or the Receivables Note
Purchaser, as applicable, and delivered to the Agent for its Purchaser Group for
its acceptance and consent or, in the case of an assignment, participation or
pledge by a CP Conduit to a CPC Committed Purchaser within its Purchaser Group,
pursuant to its Support Facility documentation; provided, however, that (i) no
Assignment, other than to a member of the same Purchaser Group, shall be
effective unless prior to the Assignment the Assignee shall have executed and
delivered to the Agent, the Issuer, the Transferor and the Servicer an
Investment Letter, (ii) no assignment or sale by a CPC Committed Purchaser shall
be effective without the consent of the CP Conduit in its Purchaser Group and
(iii) in no event shall the consent of an Agent be required in the case of an
assignment, participation or pledge by a CP Conduit of its interest in the
Equipment Loan Notes or Receivables Notes, as applicable, and its rights and
obligations under this Agreement and the Related Documents to any one or more of
the CPC Committed Purchasers in its Purchaser Group. From and after the
effective date determined pursuant to such Transfer Supplement, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such Transfer
Supplement, have the rights and obligations of an Equipment Loan Note Purchaser
or Receivables Note Purchaser, as applicable, hereunder and under the Basic
Documents as set forth therein and (y) the transferor Equipment Loan Note
Purchaser or Receivables Note Purchaser, as applicable, shall, to the extent
provided in such Transfer Supplement, be released from its Commitment and other
obligations under this Agreement; provided, however, that after giving effect to
each such Assignment, the obligations released by any such Equipment Loan Note
Purchaser or Receivables Note Purchaser, as applicable, shall have been assumed
by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend
this Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Assignee and the resulting adjustment of Percentage Interests,
Purchaser Percentages or Liquidity Percentages arising from the Assignment. Upon
its receipt and acceptance of a duly executed Transfer
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Supplement, the Agent for the applicable Purchaser Group (or, in the case of an
Assignment by which a new Purchaser Group is added to this Agreement, each
Co-Administrative Agent) shall on the effective date determined pursuant thereto
give notice of such acceptance to the Issuer, the Transferor, the Servicer and
the Indenture Trustee.
Upon instruction to register a transfer of a Note Purchaser's interest
in the Equipment Loan Notes or Receivables Notes (or portion thereof) and
surrender for registration of transfer of such Note Purchaser's Equipment Loan
Notes or Receivables Notes, as applicable) (if applicable) and delivery to the
Transferor, the Issuer, the Servicer and the Indenture Trustee of an Investment
Letter, executed by the registered owner (and the beneficial owner if it is a
Person other than the registered owner), and receipt by the Indenture Trustee of
a copy of the duly executed related Transfer Supplement and such other documents
as may be required under this Agreement, such interest in the Equipment Loan
Notes (or portion thereof) or the Receivables Notes (or portion thereof), as
applicable, shall be transferred in the records of the Indenture Trustee and the
applicable Agent and, if requested by the Assignee, new Equipment Loan Notes or
Receivables Notes, as applicable, shall be issued to the Assignee and, if
applicable, the transferor Note Purchaser in amounts reflecting such Transfer as
provided in the Indenture. To the extent of any conflict between the provisions
of this Section 7.1 and any provisions of Section 2.12 of the Indenture
applicable to Transfers of Equipment Loan Notes or Receivables Notes (or
interests therein), the provisions of this Section 7.1 shall control. Successive
registrations of Transfers as aforesaid may be made from time to time as
desired, and each such registration of a transfer to a new registered owner
shall be noted on the Note Register.
(f) Each Note Purchaser may pledge its interest in the Equipment Loan
Notes or Receivables Notes, as applicable, to any Federal Reserve Bank as
collateral in accordance with applicable law.
(g) Any Note Purchaser shall have the option to change its Investing
Office, provided that such Note Purchaser shall continue to be in compliance
with the provisions of subsections 2.4(b) and 2.4(c).
(h) Each Affected Party shall be entitled to receive additional
payments and indemnification pursuant to Sections 2.3, 2.4 and 2.5 as though it
were a Note Purchaser and such Section applied to its interest in or commitment
to acquire an interest in the Equipment Loan Notes or Receivables Notes, as
applicable; provided that such Affected Party shall not be entitled to
additional payments pursuant to (i) Section 2.3 by reason of Regulatory Changes
which occurred prior to the date it became an Affected Party or (ii) Section 2.4
attributable to its failure to satisfy the requirements of subsection 2.4(c) as
if it were a Note Purchaser, and provided further, that unless such Affected
Party is a Permitted Transferee or has been consented to by the Transferor, such
Affected Party shall be entitled to receive additional amounts pursuant to
Sections 2.3 or 2.4 only to the extent that its related CP Conduit would have
been entitled to receive such amounts in the absence of the commitment and
Support Advances from such Affected Party.
(i) Each Affected Party claiming increased amounts described in
Sections 2.3or 2.4 shall furnish, through its related CP Conduit, to the Issuer,
the Transferor, the Servicer, the Indenture Trustee and the Agent for the
applicable Purchaser Group a certificate setting forth
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the basis and amount of each request by such Affected Party for any such amounts
referred to in Sections 2.3 or 2.4, such certificate to be conclusive with
respect to the factual information set forth therein absent manifest error.
(j) In the event that a Committed Purchaser is a Downgraded Purchaser,
the related CP Conduit shall have the right to replace such Committed Purchaser
with a replacement Committed Purchaser consented to by the Transferor (which
consent shall not be unreasonably withheld), which "Replacement Purchaser" shall
succeed to the rights of such Committed Purchaser under this Agreement in
respect of its Commitment as a Committed Purchaser, and such Committed Purchaser
shall assign such Commitment and its interest in the Equipment Loan Notes or
Receivables Notes, as applicable, to such replacement Committed Purchaser in
accordance with the provisions of this Section 7.1; provided, that (A) such
Committed Purchaser shall not be replaced hereunder with a new investor until
such Committed Purchaser has been paid in full its Percentage Interest of the
Equipment Loan Note Principal Balance or Receivables Note Principal Balance, as
applicable, and all accrued and unpaid interest thereon by such new investor and
all other amounts (including all amounts owing under Sections 2.3 and 2.4) owed
to it and to all Participants with respect to such Committed Purchaser pursuant
to this Agreement, and (ii) if the Committed Purchaser to be replaced is a Note
Agent, a replacement agent shall have been appointed in accordance with Section
6.6, and the Note Agent to be replaced shall have been paid all amounts owing to
it as agent pursuant to this Agreement. For purposes of this subsection, a
Committed Purchaser shall be a "Downgraded Purchaser" if and so long as the
credit rating assigned to its short-term obligations by ▇▇▇▇▇'▇ or Standard &
Poor's on the date on which it became a party to this Agreement shall have been
reduced or withdrawn, or as may be otherwise agreed among the Issuer, such
Committed Purchaser and the CP Conduit in its Purchaser Group.
Notwithstanding the foregoing or the provisions of subsection 7.1(j),
if the Note Purchaser being replaced pursuant to this subsection is a Committed
Purchaser, the Replacement Purchaser shall be acceptable to the CP Conduit in
its Purchaser Group in its sole discretion, and it shall be a condition of such
replacement that such Replacement Purchaser enter into substitute Support
Facilities for those to which the Note Purchaser being replaced is a party on
terms mutually acceptable to the parties thereto. In addition, if the Note
Purchaser to be replaced is an Agent or a Co-Administrative Agent, or a CP
Conduit which is administered or sponsored by an Agent or a Co-Administrative
Agent, it shall be a condition of such replacement that a replacement Agent or
Co-Administrative Agent shall have been appointed in accordance with Section
6.6, and the Agent or Co-Administrative Agent to be replaced shall have been
paid all amounts owing to it as Agent or Co-Administrative Agent, as applicable
pursuant to this Agreement.
(k) Without limiting the foregoing, each CP Conduit may, from time to
time, with prior or concurrent notice to the Servicer, in one transaction or a
series of transactions, assign all or a portion of its Percentage Interest in
the Equipment Loan Note Principal Balance or Receivables Note Principal Balance,
as applicable, and its rights and obligations under this Agreement and any other
Basic Document to which it is a party to a Conduit Assignee. Upon and to the
extent of such assignment by the CP Conduit to a Conduit Assignee, (i) such
Conduit Assignee shall be the owner of the assigned portion of such Percentage
Interest, (ii) the related administrator for such Conduit Assignee will act as
the Agent for such Conduit Assignee, with
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all corresponding rights and powers, express or implied, granted to the Agent
hereunder or under the other Basic Documents, (iii) such Conduit Assignee and
its liquidity support provider(s) and credit support provider(s) and other
related parties shall have the benefit of all the rights and protections
provided to the CP Conduit and its Support Parties herein and in the other Basic
Documents (including any limitation on recourse against such Conduit Assignee or
related parties, any agreement not to file or join in the filing of a petition
to commence an insolvency proceeding against such Conduit Assignee, and the
right to assign to another Conduit Assignee as provided in this paragraph), (iv)
such Conduit Assignee shall assume all (or the assigned or assumed portion) of
the CP Conduit's obligations, if any, hereunder or any other Basic Document, and
the CP Conduit shall be released from such obligations, in each case to the
extent of such assignment, and the obligations of the CP Conduit and such
Conduit Assignee shall be several and not joint, (v) all distributions in
respect of such Percentage Interest shall be made to the applicable agent or
Agent, on behalf of the CP Conduit and such Conduit Assignee on a pro rata basis
according to their respective interests, (vi) the defined terms and other terms
and provisions of this Agreement and the other Basic Documents shall be
interpreted in accordance with the foregoing, and (vii) if requested by the
applicable Agent or Administrative Agent with respect to the Conduit Assignee,
the parties will execute and deliver such further agreements and documents and
take such other actions as such Agent or Administrator may reasonably request to
evidence and give effect to the foregoing. No assignment by the CP Conduit to a
Conduit Assignee of all or any portion of such Percentage Interest shall in any
way diminish the related CPC Committed Purchaser's obligations under Section
2.1(d) to purchase any Equipment Loan Initial Advance, Equipment Loan Advance
Increase, Receivables Initial Advance or Receivables Advance Increase not funded
by the CP Conduit or such Conduit Assignee or to acquire from the CP Conduit or
such Conduit Assignee all or any portion of its Percentage Interest.
7.2 Tax Characterization. It is the intention of the parties hereto
that, for purposes of federal, state and local and franchise tax and any other
tax measured in whole or in part by income, the Equipment Loan Notes and
Receivables Notes be treated as indebtedness, and the parties hereto agree to so
treat, and to take no action inconsistent with such treatment of the Equipment
Loan Notes and Receivables Notes (to the extent permitted by law).
ARTICLE 8 MISCELLANEOUS
8.1 Amendments and Waivers. This Agreement may not be amended,
supplemented or modified nor may any provision hereof be waived except in
accordance with the provisions of this Section 8.1. With the written consent of
the Required Equipment Loan Note Owners, the Required Equipment Loan Note
Purchasers, the Required Receivables Note Owners, the Required Receivables Note
Purchasers and each Co-Administrative Agent, each Agent, the Issuer, the
Transferor, ALS and the Servicer may, from time to time, enter into written
amendments, supplements, waivers or modifications hereto for the purpose of
adding any provisions to this Agreement or changing in any manner the rights of
any party hereto or waiving, on such terms and conditions as may be specified in
such instrument, any of the requirements of this Agreement; provided, however,
that no such amendment, supplement, waiver or modification shall (i) reduce the
amount or extend the maturity of any Equipment Loan Note or Receivables Note or
reduce the rate or extend the time of payment of interest thereon, or reduce or
alter the timing of any other amount payable to any Note Purchaser hereunder or
under the Indenture, in each case without the consent of the Note Purchaser
affected thereby, (ii)
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amend, modify or waive any provision of this Section 8.1, or, if such amendment
would have a material adverse effect on the Equipment Loan Note Purchasers, or
would alter the definition of "Equipment Loan Note Principal Balance" or
"Equipment Loan Borrowing Base", or reduce the percentage specified in the
definition of "Required Equipment Loan Note Owners" or "Required Equipment Loan
Note Purchasers", in each case without the written consent of all Equipment Loan
Note Purchasers, (iii) amend, modify or waive any provision of this Section 8.1,
or, if such amendment would have a material adverse effect on the Receivables
Note Purchasers, or would alter the definition of "Receivables Note Principal
Balance" or "Receivables Borrowing Base", or reduce the percentage specified in
the definition of "Required Receivables Note Owners" or "Required Receivables
Note Purchasers", in each case without the written consent of all Receivables
Note Purchasers, (iv) amend, modify or waive any provision of Section 6.1
without the written consent of each Agent affected by such amendment,
modification or waiver, (v) amend, modify or waive any of the provisions of
Article 2, Section 6.6 or Section 7.1 without the written consent of each
Committed Purchaser and each Primary Purchaser in each Purchaser Group or (vi)
amend, modify or waive any of Sections 2.1, 2.2 or Articles III, IV, V or VIII
(other than subsections 8.12(a), 8.12(b) and 8.16) or any term as used therein
or any provision establishing express rights or obligations of the Control Party
without the written consent of the Control Party. Any waiver of any provision of
this Agreement shall be limited to the provisions specifically set forth therein
for the period of time set forth therein and shall not be construed to be a
waiver of any other provision of this Agreement; provided, further, that the
Rating Agency Condition with respect to such amendment shall have been
satisfied; provided, further, that the signature of the Transferor, the Issuer
and ALS shall not be required for the effectiveness of any amendment which
modifies the representations, warranties, covenants or responsibilities of the
Servicer at any time when the Servicer is not ALS or any Affiliate of ALS or a
successor Servicer is designated pursuant to Section 8.5.
The Servicer shall provide notice of any amendment, modification or
waiver of the provisions of this Agreement to each of Standard & Poor's and
Moody's.
An Agent may cast any vote or give any consent or direction under the
Indenture or other Related Documents on behalf of the Noteholders in its
Purchaser Group if it has been directed to do so by Equipment Loan Note Owners
or Receivables Note Owners, as applicable, in such Purchaser Group having
Percentage Interests aggregating greater than two-thirds of the aggregate
Percentage Interests of all Equipment Loan Note Owners or Receivables Note
Owners, as applicable, in such Purchaser Group.
8.2 Notices.
(a) All notices, requests and demands to or upon the respective
parties hereto and all consents required to be given hereunder to be effective
shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand, or, in the case of mail or telecopy notice, when received, addressed as
follows or, with respect to an Agent or Note Purchaser, as set forth on the
signature pages hereto or in its respective Transfer Supplement, or to such
other address as may be hereafter notified by the respective parties hereto:
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Issuer: Alliance Laundry Equipment Receivables
Trust 2002-A
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
with a copy to: Alliance Laundry Equipment Receivables 2002 LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: ▇▇▇-▇▇▇-▇▇▇▇
Servicer: Alliance Laundry Systems, LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Alliance Laundry Systems LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: ▇▇▇-▇▇▇-▇▇▇▇
Transferor: Alliance Laundry Equipment Receivables 2002 LLC
c/o The Corporation Trust Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: Alliance Laundry Equipment Receivables LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: ▇▇▇-▇▇▇-▇▇▇▇
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with a copy to: Ropes and ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: ▇▇▇-▇▇▇-▇▇▇▇
Indenture Trustee: The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Co-Administrative Agent: Bear ▇▇▇▇▇▇▇ & Co. Inc., as a
Co-Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset-Backed Securities Group,
▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: ▇▇▇-▇▇▇-▇▇▇▇
Co-Administrative Agent: Canadian Imperial Bank of Commerce,
as a Co-Administrative Agent:
CIBC World Markets
▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Securitization Group -
▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: 212-856-4000
A copy of each notice provided herein shall be sent to the Controlling Party, if
at such time the Controlling Party is Ambac Assurance Corporation. Such notice
shall be deemed to have been duly given or made when delivered by hand, or, in
the case of mail or telecopy notice, when received, addressed as follows:
Control Party: Ambac Assurance Corporation,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Department - ABS
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
(b) All payments to be made to any Co-Administrative Agent, Agent or
Note Purchaser hereunder shall be made in United States dollars and in
immediately available funds not later than 11:30 a.m., New York City time, on
the date payment is due, and, unless otherwise specifically provided herein,
shall be made to the Agent, for the account of one or more of the Note
Purchasers or for its own account, as the case may be. Unless otherwise directed
by CIBC, all payments to it, as a Co-Administrative Agent or an Agent shall be
made by federal wire to it,
-45-
at its account (account number ▇▇-▇▇▇-▇▇▇; and account name Special Purpose
Accounts Receivable Corp.) maintained at Deutsche Bank (ABA # ▇▇▇-▇▇▇-▇▇▇), with
telephone notice (including federal wire number) to ▇▇▇▇ ▇▇▇▇▇ of CIBC
(212-856-3535) or such other account as CIBC may designate in writing to the
Issuer and the Transferor. Unless otherwise directed by Bear ▇▇▇▇▇▇▇, or MBIA
Insurance Corporation ("MBIA"), as applicable, all payments to Bear ▇▇▇▇▇▇▇ as a
Co-Administrative Agent or MBIA as an Agent shall be made by federal wire in
accordance with the Payment Instructions set forth on the Triple-A One Funding
Corporation signature pages. Unless otherwise directed by an Agent or Note
Purchaser, all payments to it shall be made by federal wire to the account
specified on the signature pages hereto or in the Transfer Supplement by which
it became a party hereto (provided, in the case of an account specified in a
Transfer Supplement, that the Co-Administrative Agents, the Transferor, the
Issuer, the Servicer or the Indenture Trustee, as the case may be, shall have
received notice thereof).
8.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any party hereto, any right, remedy, power
or privilege under any of the Related Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under any of the Related Documents preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges provided in the Related Documents
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
8.4 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Issuer, the Transferor, ALS, the Servicer, the
Co-Administrative Agents, the Agents, the Note Purchasers, any Transferee and
their respective successors and permitted assigns, and, to the extent provided
herein, to each Indemnitee, Participant and Support Party and their respective
successors and assigns; provided that, except as provided in Section 8.5 or in
Section 9.03 of the Pooling and Servicing Agreement, the Issuer, the Transferor
and the Servicer may not assign or transfer any of their respective rights or
obligations under this Agreement without the prior written consent of the
Control Party; provided, further, that (i) in connection with any such
assignment the assignee shall expressly agree in writing to assume all the
obligations of the Issuer, the Transferor or the Servicer, as applicable,
hereunder and (ii) no such assignment made without the prior written consent of
the Control Party shall relieve the Issuer, the Transferor, ALS or the Servicer,
as applicable, of any of its obligations hereunder and provided further that no
assignment permitted hereunder shall relieve the Issuer, the Transferor, ALS or
the Servicer, as applicable, from any obligations arising hereunder prior to
such assignment (including obligations with respect to breaches of
representations and warranties made herein).
8.5 Successors to Servicer. In the event that a transfer of servicing
occurs under Section 9.03 of the Pooling and Servicing Agreement, (i) from and
after the effective date of such transfer, the successor servicer (the
"Successor Servicer") shall be the successor in all respects to the Servicer and
shall be responsible for the performance of all functions to be performed by the
Servicer from and after such date, except as provided in the Pooling and
Servicing Agreement, and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof, and all references in this Agreement to the Servicer shall be
deemed to refer to the Successor Servicer, and (ii) as of the
46
date of such transfer, the Successor Servicer shall be deemed to have made with
respect to itself the representations and warranties made in Section 4.2 (with
appropriate factual changes); provided, however, that the references to the
Servicer contained in Section 5.1 shall be deemed to refer to the Servicer with
respect to responsibilities, duties and liabilities arising out of an act or
acts, or omission, or an event or events giving rise to such responsibilities,
duties and liabilities and occurring during such time that the Servicer was
Servicer under this Agreement and shall be deemed to refer to the Successor
Servicer with respect to responsibilities, duties and liabilities arising out of
an act or acts, or omission, or an event or events giving rise to such
responsibilities, duties and liabilities and occurring during such time that the
Successor Servicer acts as Servicer under this Agreement; provided, however, to
the extent that an obligation to indemnify Indemnitees under Section 2.5 arises
as a result of any act or failure to act of any Successor Servicer in the
performance of servicing obligations under the Pooling and Servicing Agreement,
such indemnification obligation shall be of the Successor Servicer and not its
predecessor.
8.6 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
8.7 Severability. Any provisions of this Agreement which are
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction.
8.8 Integration. This Agreement, the Applicable Margin Fee Letter, and
the Indenture represent the agreement of the Issuer, the Transferor, the
Servicer, the Co-Administrative Agents, the Agents and the Note Purchasers with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any party hereto relative to subject matter
hereof not expressly set forth or referred to herein or therein or in the
Related Documents.
8.9 Governing. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
8.10 Jurisdiction; Consent to Service of Process. Each of the parties
hereto hereby irrevocably and unconditionally (i) submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court in New
York County or federal court of the United States of America for the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment arising out of or relating to this Agreement; (ii)
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law,
federal court; (iii) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law; (iv) consents that
any such action or proceeding may be brought in such courts and waives any
objection it may
-47-
now or hereafter have to the laying of venue of any such action or proceeding in
any such court and any objection it may now or hereafter have that such action
or proceeding was brought in an inconvenient court, and agrees not to plead or
claim the same; (v) consents to service of process in the manner provided for
notices in Section 8.2 (provided that, nothing in this Agreement shall affect
the right of any such party to serve process in any other manner permitted by
law); and (vi) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any such action or proceeding any special,
exemplary, punitive or consequential damages.
8.11 Termination. This Agreement shall remain in full force and effect
until the earlier to occur of (a) the date on which all Commitments have
terminated and the Equipment Loan Note Principal Balance and all accrued
interest thereon, the Receivables Note Principal Balance and all accrued
interest thereon, and all Additional Amounts have been paid in full or (b) the
Final Scheduled Distribution Date; provided, that the provisions of Sections
2.3, 2.4, 2.5, 6.7, 7.2, 8.10, 8.12 and 8.15 shall survive termination of this
Agreement and any amounts payable to the Co-Administrative Agents, the Agents,
the Note Purchasers or any Affected Party thereunder shall remain payable
thereto.
8.12 Limited Recourse; No Proceedings.
(a) It is expressly understood and agreed by the parties hereto that
(i) this Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as the Owner Trustee of the Issuer under
the Trust Agreement, in the exercise of the powers and authority conferred and
vested in it, (ii) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but is
made and intended for the purpose of binding only the Issuer, (iii) nothing
herein contained shall be construed as creating any liability on Wilmington
Trust Company, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any Person claiming by, through or
under such parties and (iv) under no circumstances shall Wilmington Trust
Company be personally liable for the payment of any indebtedness or expenses of
the Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer under this
Agreement or the other Basic Documents.
(b) Each of the Issuer, the Transferor, the Servicer, each
Co-Administrative Agent, each Agent and each Note Purchaser hereby agrees that
it shall not institute or join against any CP Conduit any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, for one year
and a day after the latest maturing commercial paper note, medium term note or
other debt security issued by such CP Conduit is paid.
(c) Each Agent and each Note Purchaser hereby agrees that it shall not
institute or join against the Issuer any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under any
federal or state bankruptcy or similar law, for one year and a day after the
satisfaction of all Outstanding Obligations.
-48-
8.13 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement, the purchase of the Equipment Loan Notes
hereunder, the purchase of the Receivables Notes hereunder and the termination
of this Agreement.
8.14 Effect of Regulatory Change. In the event of any Regulatory
Change which results in either (i) a determination that the Issuer or any CP
Conduit is not a Qualified Special Purpose Entity that is not required, under
generally accepted accounting principals, to consolidate its financial
statements with any other entity, or (ii) a cost under Section 2.3, the parties
agree to negotiate in good faith to amend the Basic Agreements in order to
eliminate the consolidation requirement or effect of such Regulatory Change;
provided, however that no party shall be obligated to take any action (or make
any amendments) if in the reasonable opinion of such party any such amendment to
the Basic Documents will be unlawful or otherwise disadvantageous or
inconsistent with its policies or regulatory restrictions or result in any
liability, unreimbursed cost or expense to such party.
8.15 Waiver of July Trial. EACH OF THE ISSUER, THE TRANSFEROR, THE
SERVICER, THE CO-ADMINISTRATIVE AGENTS, THE AGENTS AND THE NOTE PURCHASERS
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, THE EQUIPMENT LOAN NOTES, THE
RECEIVABLES NOTES OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN), OR ACTIONS OF THE ISSUER, THE TRANSFEROR, THE SERVICER, THE
CO-ADMINISTRATIVE AGENTS, THE AGENTS AND THE NOTE PURCHASERS. THIS PROVISION IS
A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT AND FOR NOTE
PURCHASERS PURCHASING AN INTEREST IN THE EQUIPMENT LOAN NOTES OR RECEIVABLES
NOTES DESCRIBED HEREIN AND EACH CO-ADMINISTRATIVE AGENT AND EACH AGENT AGREEING
TO ACT AS SUCH HEREUNDER.
8.16 Excess Funds. A CP Conduit shall be required to make payment of
the amounts required to be paid pursuant hereto by such CP Conduit only if the
applicable CP Conduit has Excess Funds (as defined below). If the applicable CP
Conduit does not have Excess Funds, the excess of the amount due hereunder over
the amount paid shall not constitute a "claim" (as defined in Section 101(5) of
the Bankruptcy Code) against such CP Conduit until such time as such CP Conduit
has Excess Funds. If a CP Conduit does not have sufficient Excess Funds to make
any payment due hereunder, then such CP Conduit may pay a lesser amount and make
additional payments that in the aggregate equal the amount of the deficiency as
soon as possible thereafter. The term "Excess Funds" means, at any time,
proceeds of commercial paper notes issued, and advances under a Support Facility
made, to fund a payment to be made by a CP Conduit hereunder and which are
available to make such payment in accordance with the program documents
governing such CP Conduit's commercial paper program; provided that in no event
will Excess Funds be greater than the excess of (a) the aggregate projected
value of the applicable CP Conduit's assets and other property (including
-49-
cash and cash equivalents), over (b) the sum of (i) the sum of all scheduled
payments of principal, interest and other amounts payable on publicly or
privately placed indebtedness of such CP Conduit for borrowed money, plus (ii)
the sum of all other liabilities, indebtedness and other obligations of such CP
Conduit for borrowed money or owed to any credit or liquidity provider, together
with all unpaid interest then accrued thereon, plus (iii) all taxes payable by
such CP Conduit to the Internal Revenue Service, plus (iv) all other
indebtedness, liabilities and obligations of such CP Conduit then due and
payable, but the amount of any liability, indebtedness or obligation of such CP
Conduit shall not exceed the projected value of the assets to which recourse for
such liability, indebtedness or obligation is limited.
[Remainder of page intentionally left blank.]
-50-
IN WITNESS WHEREOF, the parties hereto have caused this Note Purchase
Agreement to be duly executed by their respective officers as of the day and
year first above written.
ALLIANCE LAUNDRY EQUIPMENT
RECEIVABLES TRUST 2002-A
By: Wilmington Trust Company, not in its
individual capacity but solely
as Owner Trustee
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
ALLIANCE LAUNDRY SYSTEMS, LLC, as Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: VP, Law and Human Resources
-------------------------------
& Secretary
-------------------------------
THE BANK OF NEW YORK, as Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Assistant Treasurer
-------------------------------
ALLIANCE LAUNDRY EQUIPMENT
RECEIVABLES 2002 LLC, as Transferor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
S-1 Note Purchase Agreement
BEAR ▇▇▇▇▇▇▇ & CO. INC.,
as a Co-Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Senior Managing Director
-------------------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Co-Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Authorized Signatory
-------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Authorized Signatory
-------------------------------
S-2 Note Purchase Agreement
BEAR ▇▇▇▇▇▇▇ EQUIPMENT LOAN
PURCHASER GROUP
MBIA INSURANCE CORPORATION,
as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇
--------------------------------
Title: Director
-------------------------------
Address for Notices:
MBIA Insurance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Conduit Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Instructions:
S-3 Note Purchase Agreement
Type of Equipment Loan TRIPLE-A ONE FUNDING CORPORATION
Note Purchaser: CP Conduit
Maximum Purchase
Amount: $180,000,000 By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
------------------------------
Address for Notices and Investing Office:
Triple-A One Funding Corporation
c/o MBIA Insurance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Conduit Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Instructions:
Deutsche Bank Trust Company Americas
ABA No. ▇▇▇-▇▇▇-▇▇▇
Corporate Trust Account No. 0141-9647
For Credit CTAG
Ref: AAA Account No. 31568
Attention: Commercial Paper Group
S-4 Note Purchase Agreement
Type of Equipment Loan BEAR ▇▇▇▇▇▇▇ & CO. INC.
Note Purchaser:
Committed
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Commitment: $180,000,000 Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Senior Managing Director
-------------------------------
Address for Notices:
Bear ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telecopy No.:
Confirmation: ▇▇▇-▇▇▇-▇▇▇▇
Payment Instructions:
S-5 Note Purchase Agreement
SPARC EQUIPMENT LOAN PURCHASER GROUP
CANADIAN IMPERIAL BANK OF COMMERCE,
as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Authorized Signatory
-------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Authorized Signatory
-------------------------------
Address for Notices:
CIBC World Markets
▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Securitization
Group - ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: 212-856-4000
Payment Instructions:
S-6 Note Purchase Agreement
Type of Equipment Loan SPECIAL PURPOSE ACCOUNTS
Note Purchaser: CP Conduit RECEIVABLES CORPORATIVE
Maximum Purchase CORPORATION
Amount: $120,000,000 By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President and Treasurer
-------------------------------
Address for Notices:
Special Purpose Accounts Receivable
Cooperative Cooperation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Instructions:
S-7 Note Purchase Agreement
Type of Equipment Loan CANADIAN IMPERIAL BANK OF
Note Purchaser: COMMERCE
Committed
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Commitment: $120,000,000 Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Authorized Signatory
-------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Authorized Signatory
-------------------------------
Address for Notices:
CIBC World Markets
▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Securitization
Group - ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: 212-856-4000
Payment Instructions:
S-8 Note Purchase Agreement
BEAR ▇▇▇▇▇▇▇ RECEIVABLES PURCHASER GROUP
MBIA INSURANCE CORPORATION,
as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇
--------------------------------
Title: Director
-------------------------------
Address for Notices:
MBIA Insurance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Conduit Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Instructions:
S-9 Note Purchase Agreement
Type of Receivables TRIPLE-A ONE FUNDING CORPORATION
Note Purchaser: CP Conduit
Maximum Purchase
Amount: $36,000,000 By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
Triple-A One Funding Corporation
c/o MBIA Insurance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Conduit Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Instructions:
Deutsche Bank Trust Company Americas
ABA No. ▇▇▇-▇▇▇-▇▇▇
Corporate Trust Account No. 0141-9647
For Credit CTAG
Ref: AAA Account No. 31568
Attention: Commercial Paper Group
S-10 Note Purchase Agreement
Type of Receivables BEAR ▇▇▇▇▇▇▇ & CO. INC.
Note Purchaser:
Committed
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Commitment: $36,000,000 Title: Senior Managing Director
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Address for Notices:
Bear ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telecopy No.:
Confirmation: ▇▇▇-▇▇▇-▇▇▇▇
Payment Instructions:
S-11 Note Purchase Agreement
SPARC RECEIVABLES PURCHASER GROUP
CANADIAN IMPERIAL BANK OF
COMMERCE, as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Authorized Signatory
-------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Authorized Signatory
-------------------------------
Address for Notices:
CIBC World Markets
▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Securitization
Group - ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: 212-856-4000
Payment Instructions:
S-12 Note Purchase Agreement
Type of Receivables SPECIAL PURPOSE ACCOUNTS RECEIVABLES
Note Purchaser: CP Conduit CORPORATIVE CORPORATION
Maximum Purchase
Amount: $24,000,000 By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President and Treasurer
-------------------------------
Address for Notices:
Special Purpose Accounts Receivable
Cooperative Cooperation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Instructions:
S-13 Note Purchase Agreement
Type of Receivables CANADIAN IMPERIAL BANK OF
Note Purchaser: COMMERCE
Committed
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Commitment: $24,000,000 Name: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Authorized Signatory
-------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Authorized Signatory
-------------------------------
Address for Notices:
CIBC World Markets
▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Securitization
Group - ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: 212-856-4000
Payment Instructions:
S-14 Note Purchase Agreement
EXHIBIT A
FORM OF TRANSFER SUPPLEMENT
TRANSFER SUPPLEMENT, dated as of the date set forth in Item 1 of
Schedule I hereto, among the Transferor [Equipment Loan/Receivables] Note
Purchaser set forth in Item 2 of Schedule I hereto (the "Transferor [Equipment
Loan/Receivables] Note Purchaser"), the Purchasing [Equipment Loan/Receivables]
Note Purchaser set forth in Item 3 of Schedule I hereto (the "Purchasing
[Equipment Loan/Receivables] Note Purchaser"), and the Agent set forth in Item 4
of Schedule I hereto (in such capacity, the "Agent") for the Purchaser Group set
forth in Item 5 of Schedule I hereto.
W I T N E S S E T H:
WHEREAS, this Transfer Supplement is being executed and delivered in
accordance with subsection 7.1(e) of the Note Purchase Agreement, dated as of
November 26, 2002, among Alliance Laundry Equipment Receivables Trust 2002-A,
Alliance Laundry Systems LLC ("ALS"), Alliance Laundry Equipment Receivables
2002 LLC, the Indenture Trustee, the Note Purchasers and the Agents parties
thereto, Bear ▇▇▇▇▇▇▇ & Co. Inc., as a Co-Administrative Agent and Canadian
Imperial Bank of Commerce, as a Co-Administrative Agent (as from time to time
amended, supplemented or otherwise modified in accordance with the terms
thereof, the "Note Purchase Agreement"; unless otherwise defined herein, terms
defined in the Note Purchase Agreement are used herein as therein defined);
WHEREAS, the Purchasing Equipment [Equipment Loan/Receivables]
Purchaser (if it is not already an [Equipment Loan/Receivables] Note Purchaser
party to the Note Purchase Agreement) wishes to become an [Equipment
Loan/Receivables] Note Purchaser party to the Note Purchase Agreement and the
Purchasing [Equipment Loan/Receivables] Note Purchaser wishes to acquire and
assume from the Transferor [Equipment Loan/Receivables] Note Purchaser, certain
of the rights, obligations and commitments under the Note Purchase Agreement;
and
WHEREAS, the Transferor [Equipment Loan/Receivables] Note Purchaser
wishes to sell and assign to the Purchasing [Equipment Loan/Receivables] Note
Purchaser, certain of its rights, obligations and commitments under the Note
Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Agent of five counterparts of this Transfer
Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, each of which has been executed by the Transferor [Equipment
Loan/Receivables] Note Purchaser, the Purchasing [Equipment Loan/Receivables]
Note Purchaser and the Agent, the Agent will transmit to the Servicer, the
Issuer, the Transferor, the Indenture Trustee, the Transferor [Equipment
Loan/Receivables] Note Purchaser and the Purchasing [Equipment Loan/Receivables]
Note Purchaser a Transfer Effective Notice, substantially in the form of
Schedule III to this Transfer Supplement (a "Transfer Effective Notice"). Such
Transfer Effective Notice shall be executed by the Agent and shall set forth,
inter alia, the date on which
Exhibit A-1
the transfer effected by this Transfer Supplement shall become effective (the
"Transfer Effective Date"). From and after the Transfer Effective Date the
Purchasing [Equipment Loan/Receivables] Note Purchaser shall be an [Equipment
Loan/Receivables] Note Purchaser party to the Note Purchase Agreement for all
purposes thereof as a CP Conduit or a Committed Purchaser, as specified on
Schedule II to this Transfer Supplement.
(b) At or before 12:00 Noon, local time of the Transferor [Equipment
Loan/Receivables] Note Purchaser, on the Transfer Effective Date, the Purchasing
[Equipment Loan/Receivables] Note Purchaser shall pay to the Transferor
[Equipment Loan/Receivables] Note Purchaser, in immediately available funds, an
amount equal to the purchase price, as agreed between the Transferor [Equipment
Loan/Receivables] Note Purchaser and such Purchasing [Equipment
Loan/Receivables] Note Purchaser (the "Purchase Price"), of the portion set
forth on Schedule II hereto being purchased by such Purchasing [Equipment
Loan/Receivables] Note Purchaser of the outstanding [Equipment Loan/Receivables]
Note Principal Balance under the [Equipment Loan/Receivables] Note owned by the
Transferor [Equipment Loan/Receivables] Note Purchaser (such Purchasing
[Equipment Loan/Receivables] Note Purchaser's "Purchaser Percentage") and other
amounts owing to the Transferor [Equipment Loan/Receivables] Note Purchaser
under the Note Purchase Agreement or otherwise in respect of the [Equipment
Loan/Receivables] Notes. Effective upon receipt by the Transferor [Equipment
Loan/Receivables] Note Purchaser of the Purchase Price from the Purchasing
[Equipment Loan/Receivables] Note Purchaser, the Transferor [Equipment
Loan/Receivables] Note Purchaser hereby irrevocably sells, assigns and transfers
to the Purchasing [Equipment Loan/Receivables] Note Purchaser, without recourse,
representation or warranty, and the Purchasing [Equipment Loan/Receivables] Note
Purchaser hereby irrevocably purchases, takes and assumes from the Transferor
[Equipment Loan/Receivables] Note Purchaser, the Purchasing [Equipment
Loan/Receivables] Note Purchaser's Purchaser Percentage of (i) the presently
outstanding [Equipment Loan/Receivables] Note Principal Balance under the
[Equipment Loan/Receivables] Notes owned by the Transferor [Equipment
Loan/Receivables] Note Purchaser and other amounts owing to the Transferor
[Equipment Loan/Receivables] Note Purchaser in respect of the [Equipment
Loan/Receivables] Notes, together with all instruments, documents and collateral
security pertaining thereto, and (ii) the Purchasing [Equipment
Loan/Receivables] Note Purchaser's Purchaser Percentage of (A) if the Transferor
[Equipment Loan/Receivables] Note Purchaser is a CP Conduit, the Purchaser
Percentage of the Transferor [Equipment Loan/Receivables] Note Purchaser and the
other rights and duties of the Transferor [Equipment Loan/Receivables] Note
Purchaser under the Note Purchase Agreement, or (B) if the Transferor [Equipment
Loan/Receivables] Note Purchaser is a Committed Purchaser, the Liquidity
Percentage and the Commitment of the Transferor [Equipment Loan/Receivables]
Note Purchaser and other rights, duties and obligations of the Transferor
[Equipment Loan/Receivables] Note Purchaser under the Note Purchase Agreement.
This Transfer is intended by the parties hereto to effect a purchase by the
Purchasing [Equipment Loan/Receivables] Note Purchaser and sale by the
Transferor [Equipment Loan/Receivables] Note Purchaser of interests in the
[Equipment Loan/Receivables] Notes, and it is not to be construed as a loan or a
commitment to make a loan by the Purchasing [Equipment Loan/Receivables] Note
Purchaser to the Transferor [Equipment Loan/Receivables] Note Purchaser. The
Transferor [Equipment Loan/Receivables] Note Purchaser hereby confirms that the
amount of the [Equipment Loan/Receivables] Note Principal Balance is $
----------
and its Percentage Interest thereof is %, which equals $ as
----- ---------------
of ,
------------
Exhibit A-2
200 . Upon and after the Transfer Effective Date (until further modified in
-
accordance with the Note Purchase Agreement), the Purchaser Percentage or
Liquidity Percentage, as applicable of the Transferor [Equipment
Loan/Receivables] Note Purchaser and the Purchasing [Equipment Loan/Receivables]
Note Purchaser and the Commitment and the Liquidity Percentage, if applicable,
if any, of the Transferor [Equipment Loan/Receivables] Note Purchaser and the
Purchasing [Equipment Loan/Receivables] Note Purchaser shall be as set forth in
Schedule II to this Transfer Supplement.
(c) The Transferor [Equipment Loan/Receivables] Note Purchaser has
made arrangements with the Purchasing [Equipment Loan/Receivables] Note
Purchaser with respect to (i) the portion, if any, to be paid, and the date or
dates for payment, by the Transferor [Equipment Loan/Receivables] Note Purchaser
to the Purchasing [Equipment Loan/Receivables] Note Purchaser of any fees
heretofore received by the Transferor [Equipment Loan/Receivables] Note
Purchaser pursuant to the Note Purchase Agreement prior to the Transfer
Effective Date and (ii) the portion, if any, to be paid, and the date or dates
for payment, by the Purchasing [Equipment Loan/Receivables] Note Purchaser to
the Transferor [Equipment Loan/Receivables] Note Purchaser of fees or interest
received by the Purchasing [Equipment Loan/Receivables] Note Purchaser pursuant
to the Note Purchase Agreement or otherwise in respect of the [Equipment
Loan/Receivables] Notes from and after the Transfer Effective Date.
(d) (i) All principal payments that would otherwise be payable from
and after the Transfer Effective Date to or for the account of the Transferor
[Equipment Loan/Receivables] Note Purchaser in respect of the [Equipment
Loan/Receivables] Notes shall, instead, be payable to or for the account of the
Transferor [Equipment Loan/Receivables] Note Purchaser and the Purchasing
[Equipment Loan/Receivables] Note Purchaser, as the case may be, in accordance
with their respective interests as reflected in this Transfer Supplement.
(ii) All interest, fees and other amounts that would otherwise
accrue for the account of the Transferor [Equipment Loan/Receivables] Note
Purchaser from and after the Transfer Effective Date pursuant to the Note
Purchase Agreement or in respect of the [Equipment Loan/Receivables] Notes
shall, instead, accrue for the account of, and be payable to or for the account
of, the Transferor [Equipment Loan/Receivables] Note Purchaser and the
Purchasing [Equipment Loan/Receivables] Note Purchaser, as the case may be, in
accordance with their respective interests as reflected in this Transfer
Supplement. In the event that any amount of interest, fees or other amounts
accruing prior to the Transfer Effective Date was included in the Purchase Price
paid by the Purchasing [Equipment Loan/Receivables] Note Purchaser, the
Transferor [Equipment Loan/Receivables] Note Purchaser and the Purchasing
[Equipment Loan/Receivables] Note Purchaser will make appropriate arrangements
for payment by the Transferor [Equipment Loan/Receivables] Note Purchaser to the
Purchasing [Equipment Loan/Receivables] Note Purchaser of such amount upon
receipt thereof from the Agent.
(e) Concurrently with the execution and delivery hereof, the
Purchasing [Equipment Loan/Receivables] Note Purchaser will deliver to the
Agent, the Transferor and the Issuer an executed Investment Letter in the form
of Exhibit [__] to the [_________] and the forms, if any, required by subsection
2.4(c) of the Note Purchase Agreement.
Exhibit A-3
(f) Each of the parties to this Transfer Supplement agrees and
acknowledges that (i) at any time and from time to time upon the written request
of any other party, it will execute and deliver such further documents and do
such further acts and things as such other party may reasonably request in order
to effect the purposes of this Transfer Supplement, and (ii) the Agent shall
apply each payment made to it under the Note Purchase Agreement, whether in its
individual capacity or as Agent, in accordance with the provisions of the Note
Purchase Agreement, as appropriate.
(g) By executing and delivering this Transfer Supplement, the
Transferor [Equipment Loan/Receivables] Note Purchaser and the Purchasing
[Equipment Loan/Receivables] Note Purchaser confirm to and agree with each
other, the Agent and the [Equipment Loan/Receivables] Note Purchasers as
follows: (i) other than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned hereby free and clear of any
adverse claim, the Transferor [Equipment Loan/Receivables] Note Purchaser makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Note
Purchase Agreement or the Related Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Note Purchase
Agreement or any other instrument or document furnished pursuant thereto; (ii)
the Transferor [Equipment Loan/Receivables] Note Purchaser makes no
representation or warranty and assumes no responsibility with respect to the
Issuer, the financial condition of the [Equipment Loan/Receivables], the
Accounts, the Issuer, ALS, the Transferor or the Indenture Trustee, or the
performance or observance by the Issuer, ALS, the Transferor or the Indenture
Trustee of any of their respective obligations under the Note Purchase Agreement
or any Related Document or any other instrument or document furnished pursuant
hereto; (iii) each Purchasing [Equipment Loan/Receivables] Note Purchaser
confirms that it has received a copy of such documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Transfer Supplement; (iv) each Purchasing [Equipment Loan/Receivables] Note
Purchaser will, independently and without reliance upon any Co-Administrative
Agent, any Agent (as defined in the Note Purchase Agreement) the Transferor
[Equipment Loan/Receivables] Note Purchaser or any other [Equipment
Loan/Receivables] Note Purchaser and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Note Purchase Agreement or the Related
Documents; (v) the Purchasing Note Purchaser appoints and authorizes the Agent
and each Co-Administrative Agent to take such action as agent on its behalf and
to exercise such powers under the Note Purchase Agreement and the Related
Documents as are delegated to the Agent or such Co-Administrative Agent, as the
case may be, by the terms thereof, together with such powers as are reasonably
incidental thereto, all in accordance with Section 6.1 of the Note Purchase
Agreement; and (vi) each Purchasing [Equipment Loan/Receivables] Note Purchaser
agrees (for the benefit of the Transferor Note Purchaser, the Co-Administrative
Agents, the Agents (as defined in the Note Purchase Agreement), the [Equipment
Loan/Receivables] Note Purchasers, the Indenture Trustee, the Servicer, the
Transferor and the Issuer) that it will perform in accordance with their terms
all of the obligations which by the terms of the Note Purchase Agreement are
required to be performed by it as an [Equipment Loan/Receivables] Note
Purchaser.
(h) Schedule II hereto sets forth the revised Purchaser Percentage or
the revised Liquidity Percentage, if applicable, and Commitment of the
Transferor Note Purchaser,
Exhibit A-4
as applicable, the Purchaser Percentage or the Liquidity Percentage, if
applicable, and the initial Investing Office of the Purchasing Note Purchaser,
as well as administrative information with respect to the Purchasing Note
Purchaser.
(i) THIS TRANSFER SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Transfer
Supplement to be executed by their respective duly authorized officers on
Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
Exhibit A-5
SCHEDULE I TO
TRANSFER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Note Purchase Agreement, dated as of November 26, 2002, among Alliance
Laundry Equipment Receivables Trust 2002-A, Alliance Laundry Systems,
LLC, Alliance Laundry Equipment Receivables 2002 LLC, the Equipment
Loan Note Purchasers and the Agents parties thereto, Bear ▇▇▇▇▇▇▇ &
Co. Inc., as a Co-Administrative Agent and Canadian Imperial Bank of
Commerce, as a Co-Administrative Agent
Item 1: Date of Transfer Supplement:
Item 2: Transferor [Equipment Loan/Receivables] Note Purchaser:
Item 3: Purchasing [Equipment Loan/Receivables] Note Purchaser:
Item 4: Name of Agent:
Item 5: Name of Purchaser Group:
Item 6: Signatures of Parties to Agreement:
------------------------------------------
as Transferor [Equipment Loan/Receivables]
Note Purchaser
By:
---------------------------------------
Name:
Title:
------------------------------------------
Exhibit A-6
as Purchasing [Equipment Loan/Receivables]
Note Purchaser
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
CONSENTED TO AND ACCEPTED BY:
MBIA INSURANCE CORPORATION,
as Agent
By:
----------------------------------
Name:
Title:
BEAR ▇▇▇▇▇▇▇ & CO. INC.,
as a Co-Administrative Agent
By:
----------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE.,
as a Co-Administrative Agent
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Exhibit A-7
SCHEDULE II TO
TRANSFER SUPPLEMENT
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES, ASSIGNED INTERESTS AND
PURCHASE AND LIQUIDITY PERCENTAGES
[Transferor [Equipment Loan/Receivables] Note Purchaser]
A. Type of Purchaser: [CP Conduit/Committed]
B. Purchaser Percentage:
Transferor Note Purchaser Purchaser Percentage Prior to Sale: %
-----
Purchaser Percentage Sold: %
-----
Purchaser Percentage Retained: %
-----
C. Commitment (if applicable)
Transferor[Equipment Loan/Receivables] Note Purchaser Commitment
Prior to Sale: $
-----
Commitment Sold: $
-----
Commitment Retained: $
-----
Related CP Conduit (applicable to Committed Purchaser):
---------
D. Related Committed Purchasers (applicable to CP Conduit)
Committed Purchasers, Commitments and Liquidity Percentages
prior to Sale:
$ %
-------------------- ---------- -----
$ %
-------------------- ---------- -----
$ %
-------------------- ---------- -----
E. [Equipment Loan/Receivables] Note Principal Balance:
Transferor [Equipment Loan/Receivables] Note Purchaser
[Equipment Loan/Receivables]Note Principal Balance Prior
to Sale: $
-----
[Equipment Loan/Receivables] Note Principal Balance Sold: $
-----
[Equipment Loan/Receivables] Note Principal Balance Retained: $
-----
Exhibit A-8
[Purchasing [Equipment Loan/Receivables] Note Purchaser]
A. Type of Purchaser: [CP Conduit/Committed]
B. Purchaser Percentage:
Transferee [Equipment Loan/Receivables] Note Purchaser Purchaser
Percentage After Sale: %
-----
C. Commitment (if applicable)
Transferee [Equipment Loan/Receivables] Note Purchaser Commitment
After Sale: $
-----
Related CP Conduit (applicable to Committed Purchaser):
---------
D. Related Committed Purchasers (applicable to CP Conduit)
Committed Purchasers, Commitments and Liquidity Percentages
after Sale:
$ %
-------------------- ---------- -----
$ %
-------------------- ---------- -----
$ %
-------------------- ---------- -----
E. [Equipment Loan/Receivables] Note Principal Balance:
Transferee [Equipment Loan/Receivables] Note Purchaser
[Equipment Loan/Receivables] Note Principal Balance After Sale: $
-----
Address for Notices:
Investing Office:
Exhibit A-9
SCHEDULE III TO
TRANSFER SUPPLEMENT
Form of
Transfer Effective Notice
To: [Name and address of Issuer, Transferor,
Servicer, Indenture Trustee, Administrative
Agent, Transferor [Equipment Loan/Receivables] Note Purchaser and
Purchasing [Equipment Loan/Receivables] Note Purchaser]
The undersigned, as Agent under the Note Purchase Agreement, dated as
of November 26, 2002, among Alliance Laundry Equipment Receivables Trust 2002-A,
Alliance Laundry Systems, LLC, Alliance Laundry Equipment Receivables 2002 LLC,
the Note Purchasers and the Agents parties thereto, Bear ▇▇▇▇▇▇▇ & Co. Inc., as
a Co-Administrative Agent, and Canadian Imperial Bank of Commerce, as a
Co-Administrative Agent acknowledges receipt of five executed counterparts of a
completed Transfer Supplement. [Note: attach copies of Schedules I and II from
such Agreement.] Terms defined in such Transfer Supplement are used herein as
therein defined.
Pursuant to such Transfer Supplement, you are advised that the
Transfer Effective Date will be , .
--------------- -----
Very truly yours,
, as Agent
------------------
By:
---------------------------------------
Name:
Title:
Exhibit A-10
EXHIBIT B
FORM OF
ADVANCE INCREASE NOTICE
[Date]
The Bank of New York,
as Indenture Trustee
----------------------
----------------------
Alliance Laundry Systems, LLC,
as Servicer
----------------------
----------------------
Alliance Laundry Equipment Receivables 2002 LLC,
as Transferor
----------------------
----------------------
Bear ▇▇▇▇▇▇▇ & Co. Inc.,
as a Co-Administrative Agent
----------------------
----------------------
Canadian Imperial Bank of Commerce,
as a Co-Administrative Agent
----------------------
----------------------
RE: Alliance Laundry Equipment Receivables Trust 2002-A
Equipment Loan Notes
Receivables Notes
Ladies and Gentlemen:
Pursuant to (a) the Indenture, dated as of November 26, 2002, by and
between Alliance Laundry Equipment Receivables Trust 2002-A (the "Issuer") and
The Bank of New York, as Indenture Trustee, and (b) the Note Purchase Agreement
dated as of November 26, 2002 (the "Note Purchase Agreement"), among the Issuer,
the Indenture Trustee, Alliance, as Servicer, Alliance Laundry Equipment
Receivables 2002 LLC, as Transferor, the Note Purchasers and the Agents parties
thereto, Bear ▇▇▇▇▇▇▇ & Co. Inc., as a Co-Administrative Agent and Canadian
Imperial Bank of Commerce, as a Co-Administrative Agent, the Issuer hereby
irrevocably
Exhibit B-1
requests a [Equipment Loan Advance Increase/Receivables Advance Increase] as
follows. Terms used herein are used as defined in or for purposes of the Note
Purchase Agreement.
1. The requested amount of such [Equipment Loan/Receivables] Advance
Increase is $ .
----------
2. The date of such [Equipment Loan/Receivables] is to occur is
(the "[Equipment Loan/Receivables] Borrowing Date").
----------
3. All conditions precedent to such [Equipment Loan/Receivables] Advance
Increase described in clauses (a) through (j) of Section 3.2 of the
Note Purchase Agreement have been satisfied.
4. The purchases of the [Equipment Loan/Receivables] Advance Increase to
be purchased on the [Equipment Loan/Receivables] Borrowing Date will
not cause a Rapid Amortization Event or an event that, after the
giving of notice of the lapse of time (or both), would cause a Rapid
Amortization Event.
5. The proceeds of such [Equipment Loan/Receivables] Advance Increase
shall be remitted on the [Equipment Loan/Receivables] Borrowing Date
in immediately available funds to [specify payment instructions].
6. After giving effect to the [Equipment Loan/Receivables] Advance
Increase, the [Equipment Loan/Receivables] Note Principal Balance
shall be equal to or less than the [Equipment Loan/Receivables]
Facility Limit.
7. [After giving effect to the Equipment Loan Advance Increase, the
Equipment Loan Note Principal Balance shall be equal to or less than
the Equipment Loan Borrowing Base as set forth in the Borrowing Base
Certificate attached hereto.] [After giving effect to the Receivables
Advance Increase, the Receivables Note Principal Balance shall be
shall be equal to or less than the Receivables Borrowing Base as set
forth in the Borrowing Base Certificate attached hereto.]
8. Payments shall be made by federal wire to it, at its account (account
number [__________]; and account name [____________]) maintained at
[__________] (ABA # [___________]), with telephone notice (including
federal wire number) to [________] of [_______] (___-___-____).
[Remainder of page intentionally left blank.]
Exhibit B-2
Very truly yours,
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES
TRUST 2002-A, as Issuer
By: Alliance Laundry Equipment Receivables
2002 LLC, not in its individual capacity but
solely as Administrator of the Issuer
By:
-----------------------------------------
Name:
Title:
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES
2002 LLC, as Transferor
By:
-----------------------------------------
Name:
Title:
Exhibit B-3
[Borrowing Base Certificate to be attached]
Exhibit B-4
EXHIBIT C
FORM OF WAREHOUSE TERMINATION AGREEMENTS
Exhibit C-1