Exhibit 10.50
PURCHASE AGREEMENT
BETWEEN
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES LLC
AND
ALLIANCE LAUNDRY SYSTEMS LLC,
in its Own Capacity and as Servicer
DATED AS OF NOVEMBER 28, 2000
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS 1
SECTION 1.01. Definitions 1
ARTICLE II
PURCHASE AND SALE OF DESIGNATED LOANS 2
SECTION 2.01. Purchase and Sale of Designated Loans 2
SECTION 2.02. Purchase Price 4
SECTION 2.03. The Closings 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES 5
SECTION 3.01. Representations and Warranties as to
Designated Loans 5
SECTION 3.02. Additional Representations and Warranties of ALS 8
SECTION 3.03. Representations and Warranties of ALER 10
ARTICLE IV
CONDITIONS 12
SECTION 4.01. Conditions to Obligation of ALER 12
SECTION 4.02. Conditions To Obligation of ALS 13
ARTICLE V
ADDITIONAL AGREEMENTS 14
SECTION 5.01. Conflicts With Transfer and Servicing Agreements 14
SECTION 5.02. Protection of Title 14
SECTION 5.03. Other Liens or Interests 14
SECTION 5.04. Repurchase Events 14
SECTION 5.05. Indemnification 15
SECTION 5.06. Further Assignments 15
SECTION 5.07. Pre-Closing Collections 15
SECTION 5.08. Sale Treatment 15
SECTION 5.09. Preservation of Security Interest 15
SECTION 5.10. Cross Collateralization 16
SECTION 5.11. Obligations with Respect to Conveyed Assets 16
SECTION 5.12. Compliance with Law 16
SECTION 5.13. Conveyance of Conveyed Assets; Security Interests 16
SECTION 5.14. Notification of Breach 17
SECTION 5.15. Further Assurances 17
SECTION 5.16. Notice of Adverse Claim 17
SECTION 5.17 Taxes 17
SECTION 5.18 Financial Statements 17
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ARTICLE VI
MISCELLANEOUS PROVISIONS 18
SECTION 6.01. Amendment 18
SECTION 6.02. Survival 18
SECTION 6.03. Notices 18
SECTION 6.04. Governing Law 18
SECTION 6.05. Waivers 18
SECTION 6.06. Costs and Expenses 18
SECTION 6.07. Confidential Information 19
SECTION 6.08. Headings 19
SECTION 6.09. Counterparts 19
SECTION 6.10. Severability of Provisions 19
SECTION 6.11. Further Assurances 19
SECTION 6.12. Third-Party Beneficiaries 19
SECTION 6.13. Merger and Integration 19
SECTION 6.14. No Petition Covenants 19
SECTION 6.15. Power of Attorney 20
SECTION 6.16. Authorization to Collect 20
SECTION 6.17. No Assignment 20
Exhibits
Exhibit A - Form of Initial PA Assignment
Exhibit B - Form of Subsequent PA Assignment
ii
PURCHASE AGREEMENT, dated as of November 28, 2000, between ALLIANCE
LAUNDRY EQUIPMENT RECEIVABLES LLC, a Delaware limited liability company
("ALER"), and ALLIANCE LAUNDRY SYSTEMS LLC, a Delaware limited liability company
in its own capacity ("ALS"), and as servicer under the Pooling and Servicing
Agreement (the "Servicer").
WHEREAS, ALER desires to purchase from time to time Equipment Notes
together with related rights owned by ALS;
WHEREAS, ALS is willing to sell such Equipment Notes and related
rights to ALER;
WHEREAS, ALER desires to sell or otherwise transfer such Equipment
Notes and related rights, including its rights under this Agreement, to a trust
(the "Issuer");
WHEREAS, the Issuer will issue notes and certificates of beneficial
interest (collectively, any such issued interests or securities being
"Securities") to fund its acquisition of such Equipment Notes and related
rights; and
WHEREAS, the Issuer will pledge its rights in such Equipment Notes
and related rights, including its rights under this Agreement, to the Indenture
Trustee under the Indenture for the benefit of the Securityholders and the
Insurer.
NOW, THEREFORE, in consideration of the foregoing, the other good
and valuable consideration and the mutual terms and covenants herein contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Capitalized terms used but not otherwise
defined in this Agreement shall have the respective meanings assigned them in
Part I of Appendix A to the Pooling and Servicing Agreement of even date
herewith by and among ALS, ALER and Alliance Laundry Equipment Receivables Trust
2000-A, as it may be amended, supplemented or modified from time to time. All
references herein to "the Agreement" or "this Agreement" are to this Purchase
Agreement as it may be amended, supplemented or modified from time to time, the
exhibits hereto and the capitalized terms used herein which are defined in such
Appendix A, and all references herein to Articles, Sections and subsections are
to Articles, Sections or subsections of this Agreement unless otherwise
specified. The rules of construction set forth in Part II of such Appendix A
shall be applicable to this Agreement.
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ARTICLE II
PURCHASE AND SALE OF DESIGNATED LOANS
SECTION 2.01. Purchase and Sale of Designated Loans.
Initial Purchase and Sale of Designated Loans. Subject to the satisfaction
of the conditions specified in Article IV, ALS agrees to sell, transfer, assign
and otherwise convey to ALER, without recourse, except as otherwise expressly
provided in the Basic Documents, pursuant to a written assignment substantially
in the form of Exhibit A (the "Initial PA Assignment"), and ALER agrees to
purchase on the Closing Date all right, title and interest of ALS in, to and
under the following assets (the "Initial Conveyed Assets"):
(a) the Designated Loans, including without limitation all documents and
instruments evidencing or governing the Designated Loans and all Loan
Files relating thereto, identified in the schedule to the Initial PA
Assignment and all monies paid or payable thereon (including Liquidation
Proceeds) on or after or due and payable, but in each case not paid, as of
the Initial Cutoff Date;
(b) the Equipment, including, without limitation, all security interests
therein granted by Obligors pursuant to such Designated Loans and any
other collateral securing such Designated Loans;
(c) any Insurance Policies and proceeds thereof and rights and benefits
thereunder with respect to such Equipment and any other collateral
securing such Designated Loans;
(d) with respect to such Designated Loans, any Guaranties and proceeds thereof
and all rights and benefits thereunder;
(e) the Lockbox and Lockbox Account, all funds on deposit from time to time in
the Lockbox or in the Lockbox Account with respect to such Designated
Loans and all proceeds thereof; and
(f) any documents related thereto and any proceeds of the property described
in clauses (1) through (5) above (the property described in clauses (2)
through (6) hereof with respect to the related Designated Loans are
referred to as the "Related Security").
Subsequent Purchases and Sales of Designated Loans. From time to time
after the date hereof, ALER may request to purchase additional Equipment Notes
from ALS solely for the purpose of providing Replacement Loans and Substitute
Loans to the Issuer pursuant to Section 2.02 and 2.07 of the Pooling and
Servicing Agreement. The Purchase Price for any such additional Equipment Notes
to be purchased by ALER will be payable by ALER on the date such purchase is
made (each, a "Subsequent Purchase Date"and together with the Closing Date, a
"Purchase Date") in cash. Subject to the satisfaction of the conditions
specified in Article IV and Section 2.02 and Section 2.07 of the Pooling and
Servicing Agreement with respect to the purchase of Replacement Loans and
Substitute Loans, ALS agrees to sell, transfer, assign and otherwise convey to
ALER, without recourse, except as otherwise expressly provided in the Basic
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Documents pursuant to a written assignment substantially in the form of Exhibit
B (a "Subsequent PA Assignment" and, together with the Initial PA Assignment,
each an "PA Assignment"), and ALER agrees to purchase on such Purchase Date all
right, title and interest of ALS in, to and under the following assets (with
respect to such Purchase Date, the "Subsequent Conveyed Assets," together with
the Initial Conveyed Assets and all prior Subsequent Conveyed Assets, the
"Conveyed Assets"):
(a) the Designated Loans including without limitation all documents and
instruments evidencing or governing the Designated Loans and all Loan
Files relating thereto, identified in the schedule attached to the
Subsequent PA Assignment delivered to ALER on such Purchase Date and all
monies paid or payable thereon (including Liquidation Proceeds) on or
after, or due and payable, but in each case not paid, as of the applicable
Subsequent Cutoff Date;
(b) the Equipment, including, without limitation, all security interests
therein and proceeds thereof and rights and benefits thereunder granted by
Obligors pursuant to such Designated Loans and any other collateral
securing such Designated Loans;
(c) any Insurance Policies, and proceeds thereof, and rights and benefits
thereunder with respect to such Equipment and any other collateral
securing such Designated Loans;
(d) with respect to such Designated Loans, any Guaranties and the proceeds
thereof and all rights and benefits thereunder;
(e) all funds on deposit from time to time in the Lockbox or in the Lockbox
Account with respect to such Designated Loans and all proceeds thereof;
and
(f) any documents related thereto and any proceeds of the property described
in clauses (1) through (5) above (the property described in clauses (2)
through (6) hereof with respect to the related Designated Loans are
referred to as the "Related Security").
The related Loan File for any additional Equipment Note shall be delivered
on or prior to the related Subsequent Purchase Date to ALER's designee for the
benefit of ALER and its assigns, which designee with respect to the Collateral
Documents will be the Custodian, and with respect to the remainder of the Loan
Files, the Servicer.
It is the intention of the ALS and ALER that the transfers and assignments
contemplated by this Section 2.01 shall constitute a sale of the related
Conveyed Assets from ALS to ALER and the beneficial interest in and title to the
assets conveyed pursuant to this Section 2.01 shall not be part of ALS's estate
in the event of the filing of a bankruptcy petition by or against ALS under any
bankruptcy law. ALS and ALER intend to treat such transfer and assignment as a
sale for accounting and tax purposes. Notwithstanding the foregoing, in the
event a court of competent jurisdiction determines that such transfer and
assignment did not constitute such a sale or that such beneficial interest is a
part of ALS's estate, then (i) ALS shall be deemed to have granted to ALER a
first priority perfected security interest in all of ALS's right title and
interest in, to and under the Conveyed Assets pursuant to this Section 2.01, and
ALS hereby grants such security
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interest and (ii) the assets conveyed pursuant to this Section 2.01 shall be
deemed to include all rights, powers and options (but none of the obligations,
if any) of ALS under any agreement or instrument included in the assets conveyed
pursuant to this Section 2.01, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest payments
in respect of the Designated Loans included in the assets conveyed pursuant to
this Section 2.01 and all other monies payable under the Designated Loans
conveyed pursuant to this Section 2.01, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring Proceedings in the name of ALS or otherwise and generally to
do and receive anything that ALS is or may be entitled to do or receive under or
with respect to the assets conveyed pursuant to this Section 2.01. For purposes
of such grant, this Agreement shall constitute a security agreement under the
UCC.
The forgoing sale does not constitute and is not intended to result in any
assumption by ALER of any obligation of ALS to the Obligors, insurers or any
other Person in connection with the Conveyed Assets, any Insurance Policies or
any agreement or instrument relating to any of them.
In connection with such conveyances, ALS agrees to record and file
financing statements (and thereafter will file continuation statements with
respect to such financing statements) with respect to the related Initial
Conveyed Assets transferred to ALER pursuant to this Agreement and the
Subsequent Conveyed Assets to be transferred to ALER pursuant to any Subsequent
PA Assignment meeting the requirements of applicable state law in such manner
and in such jurisdictions as are necessary to perfect and to maintain the
perfection of, the transfer and conveyance of, such Conveyed Assets (in each
case, other than the Exempt Collateral) from ALS to ALER, and to deliver a
file-stamped copy of such financing statements or other evidence of such filings
to ALER and the Indenture Trustee when required pursuant to the Pooling and
Servicing Agreement. The Loan Files (including each original executed Equipment
Note) will not be physically delivered to ALER but instead will be delivered to
its designee which will be the Custodian with respect to the Collateral
Documents and the Servicer with respect to the remainder of the Loan Files.
In accordance with the Pooling and Servicing Agreement, the Servicer
shall, on or prior to the related Purchase Date (i) cause the Contract
Management System to be marked with a specified code (the "Contract Management
Code") to show that the Initial Conveyed Assets or the Subsequent Conveyed
Assets, as the case may be, have been assigned and transferred in accordance
with this Agreement and the related PA Assignment, and (ii) prepare and hold in
its capacity as Servicer on behalf of the Issuers and the Indenture Trustee the
list of Initial Loans on or prior to the Closing Date and a list of Replacement
Loans and Substitute Loans on or prior to the related Subsequent Purchase Date.
SECTION 2.02. Purchase Price. In consideration for the purchase of any
Designated Loans and the Related Security, ALER shall, on the related Purchase
Date, pay to ALS an amount equal to the aggregate of the Loan Balance for such
Designated Loans as of the applicable Cutoff Date (the "Purchase Price") and ALS
shall execute and deliver to ALER a PA Assignment with respect to such
Designated Loans. On the Closing Date, a portion of the Purchase Price equal
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to approximately [$_____________] shall be payable on such date and shall be
paid to ALS in immediately available funds, and the balance of the Purchase
Price shall be deemed to be, and shall be recorded as, a capital contribution
from ALS to ALER. On each Subsequent Purchase Date, ALER shall pay all of the
Purchase Price payable on such date in immediately available funds,
provided that, to the extent requested by ALS, any portion of the Purchase Price
payable on such date instead of being paid in cash may be deemed to be, and in
such event shall be recorded as, a capital contribution from ALS to ALER.
SECTION 2.03. The Closings. Each sale and purchase of Designated Loans
(each, a "Closing") shall take place at such a place, on a Purchase Date and at
a time mutually agreeable to ALS and ALER, and may occur simultaneously with the
closing of any related transactions contemplated by the Transfer and Servicing
Agreements.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties as to Designated Loans. ALS
makes the following representations and warranties for the benefit of ALER and
its assigns, the Indenture Trustee, the Noteholders, the Insurer and the Issuer
as to the Designated Loans on which ALER relies in accepting such Designated
Loans. Such representations and warranties speak as of the Purchase Date for
such Designated Loans and as of the related transfer of such Designated Loans
under the Transfer and Servicing Agreements, and shall survive the sale,
transfer and assignment of such Designated Loans to ALER and the subsequent
assignment and transfer thereof pursuant to the Transfer and Servicing
Agreements:
(a) Characteristics of Designated Loans. Each Designated Loan:
(i) was originated by ALS in the ordinary course of ALS's business and
in accordance with its Credit and Collection Policy underwriting
standards, was fully and properly executed by the parties thereto,
satisfies each of the Eligibility Criteria, and is not a Defaulted
Loan; and
(i) contains customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for realization
against the collateral of the benefits of the security.
(b) Schedule of Designated Loans. The information set forth in the Schedule of
Designated Loans (as supplemented by the schedules to any Subsequent PA
Assignment, if applicable) is true and correct in all material respects;
(c) Compliance With Law. All requirements of applicable federal, state and
local laws, and regulations thereunder, including the Equal Credit
Opportunity Act, the Federal Reserve Board's Regulation "B", the Soldiers'
and Sailors' Civil Relief Act of 1940, and any applicable bulk sales or
bulk transfer law and other equal credit opportunity and disclosure laws,
in respect of any of
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the Designated Loans, have been complied with in all material respects,
and each such Designated Loan and the sale of each item of Equipment
evidenced thereby complied at the time it was originated or made and now
complies in all material respects with all legal requirements of the
jurisdiction in which it was originated or made;
(d) Binding Obligation. Each Designated Loan is non-cancelable, in full force
and effect and is the genuine, legal, valid and binding payment obligation
in writing of the Obligor thereon, enforceable against the Obligor in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights in general and by equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law, and the obligations of the related Obligor under such
Designated Loan are irrevocable and unconditional payable without relief
or benefit of any valuation, stay, appraisement, extension or redemption
laws or rights of setoff by such Obligor for any reason whatsoever;
(e) Security Interest in Equipment. Immediately prior to the sale, transfer
and assignment thereof pursuant hereto, each Designated Loan is secured by
a validly perfected first priority security interest in the Equipment that
is subject to the related Designated Loans in favor of ALS, as secured
party, except with respect to Designated Loans (i) which originally had a
Loan Balance of $10,000 or less and (ii) which, in accordance with the
standard underwriting policies of ALS as of the date of origination, ALS
does not routinely perfect such security interests; provided that after
giving effect to such sale, transfer and assignment, (x) the aggregate
Loan Balance of all Designated Loans, which are not so secured does not
exceed 0.25% of the Aggregate Loan Balance and (y) with respect to the
Initial Loans only, as of the Initial Cutoff Date, the aggregate value of
the collateral related to such Loans other than the collateral covered by
clause (e) of the definition of Exempt Collateral was not less than 80% of
the Aggregate Initial Loan Balance; and such lien is being validly
conveyed to ALER;
(f) Designated Loans In Force. No Designated Loan has been satisfied,
subordinated or rescinded, and no Equipment securing any Designated Loan
has been released from the Lien of the related Loan in whole or in part;
(g) No Waiver. Since the applicable Cutoff Date, no provision of any
Designated Loan has been waived, altered or modified in any respect;
(h) No Defenses. No litigation, right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any Designated
Loan;
(i) No Liens. There are, to ALS's knowledge, no Liens or claims that have been
filed for work, labor or materials affecting any Equipment securing any
Designated Loan that are or may be prior to, or equal or coordinate with,
the security interest in the Equipment granted by the Designated Loan;
(j) No Default. There has been no default, breach, violation or event
permitting acceleration under the terms of any Designated Loan, and no
event has occurred and is
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continuing that with notice or the lapse of time (or both) would
constitute a default, breach, violation or event permitting acceleration
under the terms of any Designated Loan, and ALS has not waived any of the
foregoing, in each case except for payments on any Designated Loans which
are not more than 60 days past due (measured from the date of any
Scheduled Payment) as of the applicable Cutoff Date;
(k) Good Title. No Designated Loan or Related Security has been sold,
transferred, assigned or pledged by ALS to any Person other than ALER;
immediately prior to the conveyance of any Designated Loans pursuant to
this Agreement, ALS had good and marketable title thereto, free and clear
of any Lien; and, upon execution and delivery of this Agreement and the
related PA Assignment by ALS, ALER shall have all of the right, title and
interest of ALS in and to the Designated Loans and the Related Security,
free of any Lien;
(l) Lawful Assignment. No Designated Loan was originated in, or is subject to
the laws of, any jurisdiction the laws of which would make unlawful the
sale, transfer and assignment of such Designated Loan under this Agreement
or any Transfer and Servicing Agreements;
(m) All Filings Made. All filings necessary in any jurisdiction to give ALER a
first priority perfected security or ownership interest in the Designated
Loans and the Related Security (other than Exempt Collateral) have been
made, and the Designated Loans and related Equipment constitute Code
Collateral;
(n) One Original. There is only one original executed copy of each Equipment
Note;
(o) No Documents or Instruments. No Designated Loan, or constituent part
thereof, constitutes an "instrument" or "document" (as such terms are
defined in the UCC);
(p) Scheduled Payments; Delinquency. As of the applicable Cutoff Date, no
Designated Loan had a payment that was more than 60 days past due, and no
Designated Loan had a final Scheduled Payment that is due later than, with
respect to the Initial Conveyed Assets, October 30, 2007, and with respect
to any Subsequent Conveyed Assets, April 30, 2008;
(q) Origin. The related Equipment Note constitutes "chattel paper" as defined
under the UCC and all documents of the Loan File which constitute "chattel
paper" (as such term is defined in the UCC) have been or will be delivered
to the Custodian within the period required under this Agreement. Each
Designated Loan was originated in the United States or Canada;
(r) Selection Criteria. No procedures reasonably believed by ALS to be adverse
to ALER, the Insurer or to holders of the Securities issued under the
Transfer and Servicing Agreements were utilized in selecting and/or
identifying the Designated Loans;
(s) No Government Contracts. No Obligor under any of the Designated Loans is a
governmental authority of the United States or any state or political
subdivision thereof or subject to bankruptcy or similar proceedings;
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(t) Fair Consideration. The consideration received by ALS hereunder is fair
consideration having value reasonably equivalent to the value of the
Conveyed Assets conveyed by it and the performance of its obligations
hereunder;
(u) Collections. ALS shall have deposited (or within two Business Days of
receipt thereof deposit) into the Collection Account or the Lockbox all
Collections in respect of the Designated Loans received after the related
Cutoff Date; and
(v) Release of Lien. The transfer of such Designated Loan satisfies the
requirements for the release of the liens set forth in Section 8.15 of, or
has otherwise been released from the lien of, the Guarantee and Collateral
Agreement dated as of May 5, 1998 among Alliance Laundry Holdings LLC,
ALS, and General Electric Capital Corporation.
SECTION 3.02. Additional Representations and Warranties of ALS. ALS hereby
represents and warrants to ALER and for the benefit of the Indenture Trustee,
the Noteholders, the Insurer and the Issuer, as of the date hereof, and as of
each Purchase Date occurring hereunder and as of the related Closing under the
Transfer and Servicing Agreements, in its capacity as the seller of the
Designated Loans hereunder, that:
(a) Organization and Good Standing. ALS has been duly organized and is validly
existing as a limited liability company in good standing under the laws of
the State of Delaware, with power and authority to own its properties and
to conduct its business as such properties are presently owned and such
business is presently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire and own the Designated
Loans;
(b) Due Qualification. ALS is duly qualified to do business as a foreign
limited liability company in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires or shall require
such qualification;
(c) Power and Authority. ALS has the power and authority to execute and
deliver this Agreement and to carry out its terms; ALS has full power and
authority to sell and assign the Designated Loans and the Related Security
to ALER, has duly authorized such sale and assignment to ALER by all
necessary limited liability company action; and the execution, delivery
and performance of this Agreement have been duly authorized by ALS by all
necessary limited liability company action;
(d) Valid Sale; Binding Obligation. This Agreement, together with the
applicable PA Assignment, when duly executed and delivered, shall
constitute a valid sale, transfer and assignment of such Designated Loans
and Related Security to ALER, enforceable against creditors of and
purchasers from ALS; and this Agreement, together with the applicable PA
Assignment, when duly executed and delivered, shall constitute a legal,
valid and binding obligation of ALS enforceable against ALS in accordance
with its respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of
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equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(e) No Violation. The consummation of the transactions contemplated by this
Agreement and any PA Assignment, and the fulfillment of the terms of this
Agreement and any PA Assignment, shall not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time, or both) a default under, the limited
liability company agreement of ALS, or any indenture, agreement, mortgage,
deed of trust or other instrument to which ALS is a party or by which it
is bound, or result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument (other than this Agreement,
any PA Assignment or any Transfer and Servicing Agreement), or violate any
law or, to ALS's knowledge, any order, rule or regulation applicable to
ALS of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over ALS or any of its properties;
(f) No Proceedings. There are no proceedings or, to ALS's knowledge,
investigations pending or, to ALS's knowledge, threatened, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over ALS or its
properties (i) asserting the invalidity of this Agreement or any PA
Assignment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any PA Assignment, or (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by ALS of its obligations under, or the validity or
enforceability of, this Agreement or any PA Assignment;
(g) No Consent. No permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority is required in
connection with the execution, delivery and performance by ALS of this
Agreement or any PA Assignment or the consummation by ALS of the
transactions contemplated hereby or thereby except as expressly
contemplated herein or therein;
(h) Due Execution and Delivery. This Agreement and each of the other Basic
Documents to which it is a party have been duly executed and delivered on
behalf of ALS;
(i) Ability to Perform. No event has occurred which materially and adversely
affects ALS's operations or its ability to perform its obligations under
the Basic Documents to which it is a party;
(j) Insolvency. ALS (a) is not insolvent and will not be rendered insolvent by
the transactions contemplated by this Agreement or any Subsequent PA
Assignment and has an adequate amount of capital to conduct its business
in the ordinary course and to carry out its obligations hereunder and (b)
shall not intend to incur or believe that it shall incur debts that would
be beyond its ability to pay as such debts mature, (c) shall not make such
transfer with actual intent to hinder, delay or defraud any Person, and
(d) shall not have assets that constitute unreasonably small capital to
carry out its business as then conducted. ALS does not contemplate the
commencement of insolvency, liquidation or consolidation proceedings or
the
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appointment of a receiver, liquidator, conservator, trustee or similar
official with respect to it or any of its assets. ALS is not selling or
transferring the Conveyed Assets with any intent to hinder, delay or
defraud its creditors;
(k) Location of Offices. The principal place of business and chief executive
office of ALS are located at Xxxxxxx Xxxxxx, Xxxxx, XX 00000-0000;
(l) Trade names. ALS's legal name is as set forth in this Agreement and, other
than as set forth on Schedule I hereto, within the preceding five years
ALS and its predecessors in interest have not used, and ALS currently does
not use, any trade names, fictitious names, assumed names or "doing
business as" names; and
(m) Immediately prior to the transfers herein contemplated, ALS had good
marketable title to the Initial Conveyed Assets or Subsequent Conveyed
Assets to be conveyed hereunder, free and clear of all adverse claims.
The representations and warranties set forth in this Section shall survive
the transfer and assignment of the Conveyed Assets to the Issuer and the
Indenture Trustee, and the subsequent transfer and assignment of such Conveyed
Assets to ALER pursuant to this Agreement. Upon discovery by ALS or ALER of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give written notice thereof to the other and to
the Indenture Trustee and the Insurer immediately upon obtaining knowledge of
such breach.
SECTION 3.03. Representations and Warranties of ALER. ALER hereby
represents and warrants to ALS and the assignees of ALER, the Indenture Trustee,
the Noteholders, the Insurer and the Issuer, as of the date hereof and as of
each Purchase Date:
(a) Organization and Good Standing. ALER has been duly organized and is
validly existing as a limited liability company in good standing under the
laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are presently
owned and such business is presently conducted, and had at all relevant
times, and now has, power, authority and legal right to acquire and own
the Designated Loans;
(b) Due Qualification. ALER is duly qualified to do business as a foreign
limited liability company in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such
qualification;
(c) Power and Authority. ALER has the power and authority to execute and
deliver this Agreement and to carry out its terms and the execution,
delivery and performance of this Agreement have been duly authorized by
ALER by all necessary limited liability company action;
(d) No Violation. The consummation by ALER of the transactions contemplated by
this Agreement and the fulfillment of the terms of this Agreement shall
not conflict with, result in any breach of any of the terms and provisions
of or constitute (with or without notice or lapse of
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time) a default under, the limited liability company agreement of ALER, or
any indenture, agreement, mortgage, deed of trust or other instrument to
which ALER is a party or by which it is bound, or result in the creation
or imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement or other instrument (other than this
Agreement, any PA Assignment or any Transfer and Servicing Agreement), or
violate any law or, to ALER's knowledge, any order, rule or regulation
applicable to ALER of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over ALER or any of its properties;
(e) No Proceedings. There are no proceedings or, to ALER's knowledge,
investigations pending or, to ALER's knowledge, threatened, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over ALER or its
properties (i) asserting the invalidity of this Agreement or any PA
Assignment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by ALER of its obligations under, or the validity or
enforceability of, this Agreement or any PA Assignment;
(f) Binding Obligation. This Agreement shall constitute a legal, valid and
binding obligation of ALER enforceable against ALER in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(g) No Consent. No permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority is required in
connection with the execution, delivery and performance by ALER of this
Agreement, or the consummation by ALER of the transactions contemplated
hereby except as expressly contemplated herein;
(h) Insolvency. ALER (a) is not insolvent and will not be rendered insolvent
by the transactions contemplated by this Agreement or any Subsequent PA
Assignment and has an adequate amount of capital to conduct its business
in the ordinary course and to carry out its obligations hereunder and
under each other Basic Document to which it is a party, nor is ALER aware
of any pending insolvency, (b) shall not intend to incur or believe that
it shall incur debts that would be beyond its ability to pay as such debts
mature, (c) shall not make such transfer with actual intend to hinder,
delay or defraud any Person, and (d) shall not have assets that constitute
unreasonably small capital to carry out its business as then conducted.
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ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions to Obligation of ALER. The obligation of ALER to
purchase Designated Loans and the Related Security hereunder on any Purchase
Date is subject to the satisfaction of the following conditions, which ALER
covenants and agrees it shall perform as indicated below:
(a) Representations and Warranties True. The representations and warranties of
ALS in Section 3.01 hereof regarding such Designated Loans and the Related
Security being transferred on such Purchase Date, the representations and
warranties made in Section 2.05 of the Pooling and Services Agreement of
ALS as Originator and the representations and warranties of ALS in Section
3.02 hereof, shall be true and correct as of such Purchase Date, with the
same effect as if then made, and ALS shall have performed all obligations
to be performed by it hereunder on or prior to such Purchase Date.
(b) No Repurchase Event. No Repurchase Event (as defined in Section 5.04
below) with respect to any such Designated Loan, Early Payout Event,
Servicer Default, Default or Event of Default shall have occurred on or
prior to such Purchase Date.
(c) Computer Files Marked. ALS shall, at its own expense, on or prior to such
Purchase Date, (i) indicate in its computer files created in connection
with such Designated Loans that such Designated Loans have been sold to
ALER pursuant to this Agreement and the related PA Assignment and (ii)
deliver to ALER the Schedule of Loans certified by an officer of ALS to be
true, correct and complete (as supplemented by the schedules to the
related Subsequent PA Assignment).
(d) Documents to be Delivered By ALS.
(i) The Assignment. On such Purchase Date, ALS shall execute and deliver
to ALER and the Indenture Trustee the applicable PA Assignment
substantially in the form of Exhibit A or Exhibit B hereto, as
applicable, including a list of Loans conveyed, attached thereto,
and confirming each of the conditions specified in this Article IV.
(i) Evidence of UCC Filing. On or prior to such Purchase Date, ALS shall
record and file, at its own expense, a UCC-1 financing statement in
each jurisdiction in which required by applicable law, executed by
ALS as seller or debtor, naming ALER as purchaser or secured party,
naming such Designated Loans and Related Security as collateral,
meeting the requirements of the laws of each such jurisdiction and
in such manner as is necessary to perfect under the UCC the sale,
transfer, assignment and conveyance of such Designated Loans and the
Related Security (other than Exempt Collateral and the Lockbox
Account) to ALER. ALS shall deliver a file-stamped copy, or other
evidence satisfactory to ALER of such filing, to ALER on or prior to
such Purchase Date.
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(iii) Any conveyance of a Loan pursuant to this Agreement will be effected
by the delivery by ALS to the Custodian of the Collateral Documents
for each such Designated Loan within the time period required of
ALER in Section 2.03 of the Pooling and Servicing Agreement.
(iv) Other Documents. On such Purchase Date, ALS shall provide such other
documents as ALER may reasonably request.
(e) Other Transactions. The related transactions contemplated by the Transfer
and Servicing Agreements shall be consummated on or prior to each Closing
(and all conditions precedent thereto shall be satisfied) to the extent
that such transactions are intended to be substantially contemporaneous
with the transactions hereunder.
(f) Performance of Obligations. ALS shall have performed all obligations to be
performed by it hereunder on or prior to such Purchase Date.
(g) Taxes. Such transfer shall not impose tax liability on the Trust and shall
not affect the tax status of the Notes as debt held by the Holders.
(h) Deposit of Collections. ALS shall have deposited (or within two Business
Days of receipt thereof deposit) into the Collection Account or the
Lockbox all Collections in respect of the Designated Loans received after
the related Cutoff Date.
(i) Collateral Documents. Complete copies of all documents required to be
delivered to the Custodian pursuant to Section 2.03 of the Pooling and
Servicing Agreement shall have been delivered to the Custodian in the time
frame required by the Pooling and Servicing Agreement.
SECTION 4.02. Conditions To Obligation of ALS. The obligation of ALS to
sell the Designated Loans to ALER hereunder on any Purchase Date is subject to
the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and warranties of
ALER hereunder shall be true and correct as of such Purchase Date, with
the same effect as if then made, and ALER shall have performed all
obligations to be performed by it hereunder on or prior to such Purchase
Date.
(b) Purchase Price. On each Purchase Date, ALER shall pay to ALS the Purchase
Price, payable on such date as provided in Section 2.02 of this Agreement.
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ARTICLE V
ADDITIONAL AGREEMENTS
ALS agrees with ALER as follows:
SECTION 5.01. Conflicts With Transfer and Servicing Agreements. To the
extent that any provision of Sections 5.02 through 5.04 of this Agreement
conflicts with any provision of the Transfer and Servicing Agreements, the
Transfer and Servicing Agreements shall govern.
SECTION 5.02. Protection of Title.
(a) Filings. ALS shall execute and file such financing statements and cause to
be executed and filed such continuation and other statements, all in such
manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of ALER under this Agreement in the
Designated Loans and the Related Security and in the proceeds thereof
(other than Exempt Collateral). ALS shall deliver (or cause to be
delivered) to ALER file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such
filing.
(b) Name Change. ALS shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing
statement or continuation statement filed by ALS in accordance with
Section 5.02(a) seriously misleading within the meaning of Section
9-402(7) of the UCC, unless it shall have given ALER and the Indenture
Trustee and the Insurer at least 60 days prior written notice thereof and
shall file such financing statements or amendments as may be necessary to
continue the perfection of ALER's interest under this Agreement in the
Designated Loans and the Related Security (other than Exempt Collateral).
(c) Executive Office; Maintenance of Offices. ALS shall give ALER and the
Indenture Trustee and the Insurer at least 60 days prior written notice of
any relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation
statement or of any new financing statement. ALS shall at all times
maintain each office from which it services Designated Loans and its
principal executive office within the United States of America.
SECTION 5.03. Other Liens or Interests. Except for the conveyances
hereunder and as contemplated by the Transfer and Servicing Agreements, ALS
shall not sell, pledge, assign or transfer the Designated Loans and the Related
Security to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on any interest therein, and ALS shall defend the right, title and
interest of ALER in, to and under the Designated Loans and Related Security
against all claims of third parties claiming through or under ALS.
SECTION 5.04. Repurchase Events. By its execution of the Transfer and
Servicing Agreements to which it is a party, ALS shall be deemed to acknowledge
the assignment by ALER of such of its right, title and interest in, to and under
this Agreement to the Issuer as shall be provided in the Transfer and Servicing
Agreements. ALS hereby covenants and agrees with ALER for the benefit of ALER
and the Interested Parties, that in the event of a breach of any of
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ALS's representations and warranties contained in Section 3.01 hereof with
respect to any Loan or other breach as a result of which ALS as Originator shall
have a repurchase obligation under Section 2.06 of the Pooling and Servicing
Agreement, ALS's failure to deliver all of the Collateral Documents with respect
to any Designated Loan to the Custodian as required hereunder or the failure of
the Custodian to provide a Custodian Receipt Certification with respect to a
Designated Loan within the period required pursuant to 3(b) of the Custodian
Agreement containing no Exceptions (as defined therein) (a "Repurchase Event")
as of the second Accounting Date following ALS's discovery or its receipt of
notice of such breach or failure (or, at ALS's election, the first Accounting
Date following such discovery), unless such breach or failure shall have been
cured in all material respects, ALS will repurchase such Loan from the Owner of
such Loan on the related Distribution Date for an amount equal to the Warranty
Payment. It is understood and agreed that the obligation of ALS as Originator to
repurchase any Loan as to which a breach has occurred and is continuing shall,
if such obligation is fulfilled, constitute the sole remedy against ALS for such
breach available to ALER or any Interested Party.
SECTION 5.05. Indemnification. ALS shall indemnify, defend and hold
harmless ALER and its assigns, the Indenture Trustee and the Insurer, for any
liability as a result of the failure of a Loan to be originated in compliance
with all requirements of law and for any breach of any of its representations
and warranties contained herein. This indemnity obligation shall be in addition
to any obligation that ALS may otherwise have.
SECTION 5.06. Further Assignments. ALS acknowledges that ALER shall,
pursuant to the Transfer and Servicing Agreements, sell Designated Loans to the
Issuer and assign its rights hereunder to the Issuer, subject to the terms and
conditions of the Transfer and Servicing Agreements, and that the Issuer may in
turn further pledge, assign or transfer its rights in Designated Loans and this
Agreement.
SECTION 5.07. Pre-Closing Collections. Within two Business Days after each
Closing, ALS shall transfer to the account or accounts designated by ALER (or by
the Issuer under the Transfer and Servicing Agreements) all collections (from
whatever source) on or with respect to the Designated Loans and the Related
Security conveyed by ALS to ALER at the time of such Closing pursuant to Section
2.01.
SECTION 5.07. Sale Treatment. ALS intends to treat each transfer and
assignment described herein as a sale for accounting and tax purposes.
SECTION 5.08. Preservation of Security Interest. ALS shall execute and
file such financing statements and cause to be executed and filed such
continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain, and protect the respective right,
title and interest of ALER and its assignees, including the Issuer and the
Indenture Trustee, ALER or its designee, in the Conveyed Assets (other than
Exempt Collateral). ALS shall deliver (or cause to be delivered) to ALER or its
designee, the Indenture Trustee, file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such
filing.
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SECTION 5.10. Cross Collateralization. With respect to an Obligor under
the Loans that will be sold hereunder to ALER, or by the Seller to the Issuer
under the Pooling and Servicing Agreement, ALS may be or may become a lender to
such Obligor under another stand alone commercial laundry equipment loan (the
"Non-Trust Loan"). Each Loan and Non-Trust Loan is secured by the equipment
related to that loan. In certain circumstances a Loan my be cross collateralized
with the equipment and other collateral related to a Non-Trust Loan ("Common
Non-Trust Collateral") and a Non-Trust Loan may be cross collateralized with the
equipment and collateral related to a Loan (the "Common Trust Collateral"). The
Common Non-Trust Collateral and the Common Trust Collateral are referred to
herein together as the "Common Collateral." ALS agrees that with respect to each
loan of each such Obligor (i) the security interest in such Common Trust
Collateral granted to ALS pursuant to any other Non-Trust Loan is and shall be
junior and subordinate to the security interest created to secure the Loan; (ii)
ALS shall have no legal right to realize upon such Common Trust Collateral or
exercise its rights under the Loan in any manner until all required payments in
respect of such Loan have been paid; and (iii) in realizing upon such Common
Trust Collateral, neither ALER nor the Issuer, nor any Beneficiaries shall have
any obligation to protect or preserve the rights of ALS in such Common Trust
Collateral. ALER agrees that with respect to each loan of each such Obligor (i)
the security interest in such Common Non-Trust Collateral to secure the Loan and
hereby assigned to ALER is and shall be junior and subordinate to the security
interest therein created by the Non-Trust Loan; (ii) ALER, the Issuer and the
Beneficiaries shall have no legal right to realize upon such Common Non-Trust
Collateral or exercise their rights under the Loan in any manner until all
required payments in respect of the Non-Trust Loan have been made; and (iii) in
realizing upon such Common Non-Trust Collateral, ALS or its assignees shall have
no obligation to protect or preserve the rights of ALER, the Issuer or the
Beneficiaries in such Common Non-Trust Collateral. ALS agrees that any
successors or assigns of or with respect to any Non-Trust Loans shall acquire
such loans subject to the provisions of this Section 5.10 and shall by the
provisions hereof be subject to the same.
SECTION 5.11. Obligations with Respect to Conveyed Assets. ALS will duly
fulfill all obligations on its part to be fulfilled under or in connection with
the Conveyed Assets, and will do nothing to impair the rights of ALER or its
assignees, including the Issuer or the Indenture Trustee, in any of the Conveyed
Assets.
SECTION 5.12. Compliance with Law. ALS will comply, in all material
respects, with all acts, rules, regulations, orders, decrees and directions of
any Governmental Authority applicable to its business and to the Conveyed Assets
or any part thereof; provided, however, that ALS may contest any act, rule,
regulation, order, decree or direction in any reasonable manner which shall not
materially and adversely affect the rights of the Issuer, the Indenture Trustee
or any of the Beneficiaries in the Conveyed Assets or subject the Indenture
Trustee or any of the Beneficiaries to any civil or criminal liability or
involve any risk of loss of any collateral.
SECTION 5.13. Conveyance of Conveyed Assets; Security Interests. Except
for the transfers and conveyances hereunder, under any PA Assignment or under
any other Basic
16
Document, ALS will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist through ALS any adverse claim,
on any Conveyed Asset, or any interest therein and ALS shall defend the right,
title, and interest of ALER or its assignees, the Issuer, the Indenture Trustee,
the Beneficiaries and their respective successors and assigns in, to, and under
the Conveyed Assets, against all claims of third parties claiming through or
under ALS.
SECTION 5.14. Notification of Breach. ALS will advise ALER or its
assignees, the Issuer, the Indenture Trustee and the Insurer promptly, in
reasonable detail, upon discovery of the occurrence of a breach, in any material
respect, by the Originator, the Servicer or ALS of any of its respective
representations, warranties and covenants contained herein.
SECTION 5.15. Further Assurances. ALS will make, execute or endorse,
acknowledge and file or deliver to ALER or its assignees, the Issuer, the
Indenture Trustee and the Insurer from time to time such schedules, confirmatory
assignments, conveyances, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to the Conveyed Assets and other rights covered by this Agreement
and any PA Assignment, as the Issuer, the Insurer or the Indenture Trustee may
request and reasonably require other than with respect to Exempt Collateral.
SECTION 5.16. Notice of Adverse Claim. ALS shall notify ALER or its
assignees, the Issuer, the Insurer and the Indenture Trustee, promptly after
becoming aware of any Adverse Claim on any Conveyed Asset.
SECTION 5.17 Taxes. ALS shall promptly pay all applicable taxes required
to be paid in connection with the transfer of the Conveyed Assets by ALS to
ALER, and acknowledges that ALS and the Issuer shall have no responsibility with
respect thereto. ALS shall promptly pay and discharge, or cause the payment and
discharge of, all federal income taxes (and all other material taxes) when due
and payable by ALS, except (i) such as may be paid thereafter without penalty or
(ii) such as may be contested in good faith by appropriate proceeding and for
which an adequate reserve has been established and is maintained in accordance
with GAAP. ALS shall promptly notify the Issuer, the Indenture Trustee, the
Insurer and the Noteholders of any material challenge, contest or proceeding
pending by or against ALS before any taxing authority.
SECTION 5.18 Financial Statements.
The financial statements and books and records of the ALS will reflect the
separate existence of ALS and ALER; the annual consolidated financial statements
of ALS after the date hereof will contain disclosures to the effect that the ALS
has or will have one or more direct and indirect subsidiaries that were or may
be established as bankruptcy remote entities to facilitate asset securitization;
that in connection therewith, assets have been or will be transferred directly
or indirectly by the ALS to such subsidiaries; and that these bankruptcy remote
entities are separate legal entities the assets of which are not available to
satisfy the claims of creditors of the ALS, any other subsidiary or any other
Affiliate.
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ALS, even if not treating the transfer of Conveyed Assets as an "off
balance sheet" conveyance for consolidated financial reporting purposes under
generally accepted accounting principles, shall nonetheless disclose in its
financial statements (by footnote or other appropriate designation) that the
Conveyed Assets are property of ALER and subject to the interests of ALER and
its assignees, and any other disclosures to ALS's creditors shall be consistent
with the foregoing. ALS acknowledges that the Conveyed Assets are not to
constitute property of ALS's estate in the event of insolvency or bankruptcy
involving ALS.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. Amendment. This Agreement may be amended from time to time
(in accordance with Section 10.01(g) of the Pooling and Servicing Agreement) by
a written amendment duly executed and delivered by ALS and ALER. Prior to the
execution of any such amendment, ALS shall furnish written notification of the
substance of such amendment to each of the Rating Agencies. ALS agrees that it
shall not amend Section 4.14 of the Loan and Security Agreement, dated as of May
5, 1998, by and among Alliance Laundry Receivables Warehouse LLC, a Delaware
limited liability company, the financial parties thereto as lenders and Xxxxxx
Commercial Paper Inc., a New York corporation, as agent for the lenders, without
the consent of the Insurer, so long as the Insurer is the Controlling Party.
SECTION 6.02. Survival. The representations, warranties and covenants of
ALS set forth in Article III and Article V of this Agreement shall remain in
full force and effect and shall survive each Closing and each closing under the
Transfer and Servicing Agreements.
SECTION 6.03. Notices. All demands, notices and communications under this
Agreement shall be delivered as specified in Appendix B to the Pooling and
Servicing Agreement.
SECTION 6.04. Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement and each PA Assignment shall be
governed by and construed and enforced in accordance with the internal laws of
the State of New York, without giving effect to any choice of law or conflict
provision or rule (whether of the State of New York or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of New York.
SECTION 6.05. Waivers. No failure or delay on the part of ALER or any
Interested Party in exercising any power, right or remedy under this Agreement
or any PA Assignment shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or remedy.
SECTION 6.06. Costs and Expenses. ALS agrees to pay all reasonable
out-of-pocket costs and expenses of ALER, including fees and expenses of
counsel, in connection with the perfection as against third parties of ALER's
right, title and interest in, to and under the Conveyed Assets (other than
Exempt Collateral) and the enforcement of any obligation of ALS hereunder.
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SECTION 6.07. Confidential Information. ALER agrees that it shall neither
use nor disclose to any person the names and addresses of the Obligors, except
in connection with the enforcement of ALER's rights hereunder, under the
Designated Loans, under the Transfer and Servicing Agreements or as required by
law.
SECTION 6.08. Headings. The various headings in this Agreement are for
purposes of reference only and shall not affect the meaning or interpretation of
any provision of this Agreement.
SECTION 6.09. Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 6.10. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of any
Securities or rights of any Owner.
SECTION 6.11. Further Assurances. ALS and ALER agree to do and perform,
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested to effect the purposes of this
Agreement, including the execution of any financing statements or continuation
statements relating to the Conveyed Assets (other than Exempt Collateral) for
filing under the provisions of the UCC of any applicable jurisdiction.
SECTION 6.12. Third-Party Beneficiaries. The Insurer and its successors
and assigns shall be a third party beneficiary to the provisions of this
Agreement, as it may be supplemented or amended, and shall be entitled to rely
upon and directly enforce such provisions of this Agreement. This Agreement
shall inure to the benefit of and be binding upon the parties hereto, the Owners
and their respective successors and permitted assigns. Except as otherwise
expressly provided in this Agreement, no other Person shall have any right or
obligation hereunder.
SECTION 6.13. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 6.14. No Petition Covenants. Notwithstanding any prior termination
of this Agreement, ALER and ALS shall not, prior to the date which is one year
and one day after the final distribution under the Transfer and Servicing
Agreements with respect to the Notes to the Note Distribution Account,
acquiesce, petition or otherwise invoke or cause ALER or the Issuer
19
to invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against ALER or the Issuer under any federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of ALER or the Issuer.
SECTION 6.15. Power of Attorney. ALS hereby grants to ALER (and its
assignees) and the Servicer an irrevocable power of attorney, with full power of
substitution, coupled with interest, to take in the name of ALS all steps which
are necessary or advisable to indorse, negotiate or otherwise realize on any
writing or other right of any kind held or transmitted by ALS or transmitted or
received by ALER (or its assignees) or the Servicer (whether or not from ALS) in
connection with any Conveyed Assets.
SECTION 6.16. Authorization to Collect. ALS hereby authorizes ALER, the
Servicer or their respective successors, assigns or designees to take any and
all steps in ALS's name necessary or desirable, in their respective
determination, to collect all amounts due under all loans, including, without
limitation, indorsing the name of ALS on checks and other instruments
representing Collections and enforcing the provisions of the Loans that concern
payment and/or enforcement of rights to payment.
SECTION 6.17. No Assignment. No assignment of this Agreement other than
pursuant to the other Basic Documents shall be permitted unless the Rating
Agency Condition shall have been satisfied and, if the Insurer is the
Controlling Party, the Insurer shall have consented thereto.
* * * * *
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to
be executed by their respective officers hereunto duly authorized as of the date
and year first above written.
ALLIANCE LAUNDRY SYSTEMS LLC,
in its own capacity and as Servicer
By: ______________________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President, Chief Financial Officer
and Treasurer
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES LLC
By: ______________________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice-President, Chief Financial Officer
andTreasurer
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