EXHIBIT 10.68
================================================================================
TRUST AGREEMENT
BETWEEN
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES 2002 LLC
TRANSFEROR
AND
WILMINGTON TRUST COMPANY
OWNER TRUSTEE
DATED AS OF NOVEMBER 26, 2002
================================================================================
TRUST AGREEMENT, dated as of November 26, 2002 between Alliance Laundry
Equipment Receivables 2002 LLC, a Delaware limited liability company, as
Transferor, and Wilmington Trust Company, a Delaware banking corporation, as
Owner Trustee.
The Transferor and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Certain capitalized terms used in this Agreement
shall have the respective meanings assigned to them in Part I of Appendix A to
the Pooling and Servicing Agreement of even date herewith, among the Transferor,
the Servicer and the Trust (as it may be amended and supplemented from time to
time, the "Pooling and Servicing Agreement"). All references herein to "the
Agreement" or "this Agreement" are to this Trust Agreement as it may be amended
and supplemented from time to time, the Exhibits hereto and the capitalized
terms used herein which are defined in such Appendix A, and all references
herein to Articles, Sections and subsections are to Articles, Sections and
subsections of this Agreement unless otherwise specified. The rules of
construction set forth in Part II of such Appendix A shall be applicable to this
Agreement.
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The Trust created hereby shall be known as "Alliance
Laundry Equipment Receivables Trust 2002-A" in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued on behalf of the Trust.
SECTION 2.2. Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Registered Owners of
the Trust (as such term is defined in Section 3.1(a) herein) and the Transferor.
SECTION 2.3. Purposes and Powers. The purpose of the Trust is to engage in
the following activities:
(i) to execute and deliver the Basic Documents to which the Trust is a
party and carry out the terms of such Basic Agreements;
(ii) to acquire, manage and hold the Loans and the Receivables;
(iii) to issue the Notes pursuant to the Indenture and to sell,
transfer or exchange the Notes;
(iv) to acquire property and assets from the Transferor pursuant to
the Pooling and Servicing Agreement, to make payments or distributions to
the Securityholders, to make deposits into and withdrawals from the Reserve
Account and other accounts
-1-
established pursuant to the Basic Documents and to pay the organizational,
start-up and transactional expenses of the Trust;
(v) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the terms of the Indenture and to hold, manage and
distribute to the Registered Owners pursuant to the terms of this Agreement
and the Pooling and Servicing Agreement any portion of the Trust Estate
released from the lien of, and remitted to the Trust pursuant to, the
Indenture;
(vi) to enter into and perform its obligations and exercise its rights
under the Basic Documents to which it is to be a party;
(vii) to engage in those activities, including entering into
agreements, that are necessary, suitable, desirable or convenient to
accomplish the foregoing or are incidental thereto or connected therewith;
and
(viii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of payments or distributions to the
Securityholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
Section 2.4. Limitations on the Trust's Powers. This Section 2.4 is being
adopted in order to comply with certain provisions required in order to qualify
the Trust as a "special purpose" entity. The Trust shall not engage in any
business or activity other than as set forth in Section 2.3 hereof.
(i) The Trust shall not incur (x) any indebtedness, whether or not
contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or bankers' acceptances, (y) any obligations
constituting capitalized lease obligations or the deferred purchase price
of property or (z) any obligations to guarantee or secure with a lien upon
property of the Trust (other than a lien created in connection with a sale
of property) any such indebtedness or obligations of another person, other
than any indebtedness and other liabilities and obligations arising under
the Basic Documents ("Permitted Indebtedness")
(ii) The Trust shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights (charter
and statutory) and franchises; provided, however, that the Trust shall not
be required to preserve any such right or franchise if the Owner Trustee,
at the written direction of the Registered Owners, shall determine that the
preservation thereof is no longer desirable for the conduct of the trust
and that the loss thereof is not disadvantageous in any material respect to
the Control Party and the Registered Owners. In accordance with its
obligations under the Administration Agreement, the Administrator shall
ensure compliance by the Trust with the provisions of this Section 2.4,
including those requirements identified in paragraphs (A) through (S)
below. The Trust shall also:
-2-
(A) maintain its own separate books and records and bank accounts
including preparation of separate financial statements;
(B) at all times hold itself out to the public as a legal entity
separate from and not a division of the Transferor;
(C) file its own tax returns, if any, as may be required under
applicable law, to the extent (a) not part of a consolidated group
filing a consolidated return or returns or (b) not treated as a
division for tax purposes of another taxpayer or otherwise disregarded
for tax purposes, and pay any taxes so required to be paid under
applicable law;
(D) except as contemplated by the Basic Documents, not commingle
its assets with assets of any other Person;
(E) conduct its business in its own name;
(F) pay its own liabilities only out of its own funds;
(G) maintain an arm's length relationship with its Affiliates;
(H) pay the salaries of its own employees and maintain a
sufficient number of employees in light of its contemplated business
operations, if any;
(I) not hold out its credit or assets as being available to
satisfy the obligations of others nor guarantee or become obligated
for the debts of any other entity (except as contemplated by the Basic
Documents);
(J) allocate fairly and reasonably any overhead for shared office
space;
(K) use separate stationery, invoices and checks;
(L) not pledge its assets for the benefit of any other Person,
except as contemplated by the Basic Documents;
(M) correct any known misunderstanding regarding its separate
identity;
(N) maintain adequate capital in light of its contemplated
business purposes transactions and liabilities;
(O) observe any applicable formalities required by the Statutory
Trust Statute;
(P) not acquire any obligations or securities or other ownership
interests of any Affiliate (except as contemplated by the Basic
Documents); and
(S) cause the Owner Trustee, agents and other representatives of
the
-3-
Trust to act at all times with respect to the Trust consistently and
in furtherance of the foregoing and in the best interest of the
beneficiaries of the Trust.
Failure of the Trust to comply with any of the covenants set forth in this
Section 2.4 shall not affect the status of the Trust as a separate legal entity
from the Transferor.
SECTION 2.5. Appointment of Owner Trustee. The Transferor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein and in the Statutory
Trust Statute.
SECTION 2.6. Initial Capital Contribution of Owner Trust Estate. The
Transferor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Transferor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate.
The Transferor shall pay organizational expenses of the Trust as they may arise
or shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.7. Declaration of Trust. The Owner Trustee hereby declares that
it shall hold the Owner Trust Estate in trust upon and subject to the conditions
and obligations set forth herein and in the Pooling and Servicing Agreement for
the use and benefit of the Registered Owners, subject to the obligations of the
Trust under the Basic Documents. It is the intention of the parties hereto that
the Trust constitute a statutory trust under the Statutory Trust Statute and
that this Agreement constitute the governing instrument of such statutory trust.
The rights of the Registered Owners shall be determined as set forth herein and
in the Statutory Trust Statute and the relationship between the parties hereto
created by this Agreement shall not constitute indebtedness for any purpose. It
is the intention of the parties hereto that, solely for purposes of federal
income taxes, state and local income and franchise taxes, and any other taxes
imposed upon, measured by, or based upon gross or net income, the Trust shall be
treated as a division or branch of the Originator or as a grantor trust of which
the Originator shall be the grantor and the owner (as described in Section 671
of the Code and the regulations thereunder). The parties agree that, unless
otherwise required by appropriate tax authorities, the Trust shall file or cause
to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as a division or branch of the
Originator or as a grantor trust for such tax purposes.
SECTION 2.8. Liability of the Registered Owners. No Registered Owner shall
have any personal liability for any liability or obligation of the Trust except
as may be provided in this Agreement.
SECTION 2.9. Title to Trust Property. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
-4-
SECTION 2.10. Situs of Trust. The Trust shall be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware.
Payments shall be received by the Trust only in Delaware or New York, and
payments and distributions shall be made by the Trust only from Delaware or New
York. The only office of the Trust shall be the Corporate Trust Office in
Delaware.
SECTION 2.11. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Owner Trustee that:
(a) The Transferor has been duly organized and is validly existing as
a limited liability company in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted and had at all relevant times, and now has, power, authority and legal
right to acquire and own the Loans and Receivables.
(b) The Transferor has the power and authority to execute and deliver
this Agreement and to carry out its terms, the Transferor has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Issuer as part of the Trust and the Transferor has duly
authorized such sale and assignment to the Issuer by all necessary corporate
action; and the execution, delivery and performance of this Agreement have been
duly authorized by the Transferor by all necessary limited liability company
action.
(c) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not conflict
with, result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under, the certificate of
formation or limited liability company agreement of the Transferor, or any
indenture, agreement or other instrument to which the Transferor is a party or
by which it is bound, or result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents), or violate any
law or, to the Transferor's knowledge, any order, rule or regulation applicable
to the Transferor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Transferor or any of its properties.
(d) This Agreement, when duly executed and delivered, shall constitute
a legal, valid and binding obligation of the Transferor enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(e) There are no proceedings or, to the Seller's knowledge,
investigations pending or, to the Seller's knowledge, threatened before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over
-5-
the Seller or its properties (i) asserting the invalidity of this Agreement,
(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 the Seller of its obligations
under, or the validity or enforceability of, this Agreement.
ARTICLE III
THE REGISTERED OWNERS
SECTION 3.1. Registration: Registration of Transfer of Beneficial
Interests.
(a) The Trust shall keep or cause to be kept, at the office maintained
pursuant to Section 2.10, a register or registers (the "Register") in which,
subject to such reasonable regulations as it may prescribe, the Owner Trustee
shall provide for the registration of the name and address of each of the
beneficial interest holders of the Trust (each, a "Registered Owner", and
collectively, the "Registered Owners") and of transfers of such beneficial
interests of the Trust as provided herein. The Owner Trustee shall be the
initial Registrar. In the event that the Owner Trustee is not the Registrar and
the Registrar resigns, the Owner Trustee shall promptly appoint a successor or,
if it elects not to make such an appointment, assume the duties of Registrar.
Beneficial interests in the Trust shall be uncertificated, and the Transferor
shall be the sole beneficial owner of the Trust on the Closing Date.
(b) The initial Registered Owners may at any time, with the consent of
the Control Party, sell, transfer, convey or assign in any manner their
respective rights to and interests in the Trust, provided that certain
conditions are satisfied, including: (i) such action will not result in a
reduction or withdrawal of the rating of the Notes, (ii) the Registered Owners
provide to the Owner Trustee and the Indenture Trustee an opinion of independent
counsel that such action will not cause the Trust to be treated as an
association (or publicly traded partnership) taxable as a corporation for
Federal income tax purposes, (iii) such transferee or assignee agrees to take
positions for tax purposes consistent with the tax positions agreed to be taken
by the Registered Owners and (iv) the conditions set forth in Section 9.11 have
been satisfied. In addition, no transfer of a beneficial interest in the Trust
shall be registered unless the transferee shall have provided to the Owner
Trustee and the Registrar an opinion of counsel that in connection with such
transfer no registration of the interest intended to be so transferred is
required under the Securities Act or applicable state law or that such transfer
is otherwise being made in accordance with all applicable federal and state
securities laws.
SECTION 3.2. Access to List of Names and Addresses of Registered Owners.
The Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Transferor, within fifteen (15) days after receipt by the Owner Trustee of a
request therefor from the Servicer or the Transferor in writing, a list, in such
form as the Servicer or the Transferor may reasonably require, of the names and
addresses of the Registered Owners as of the most recent Record Date. Each
Registered Owner shall be deemed to have agreed not to hold any of the Servicer,
the Transferor or the Owner Trustee accountable by reason of the disclosure of
its name and address, regardless of the source from which such information was
derived.
-6-
SECTION 3.3. Maintenance of Corporate Trust Office. The Owner Trustee shall
maintain in Wilmington, Delaware, an office or offices or agency or agencies
where notices and demands to or upon the Owner Trustee in respect of the
Registered Owner and the Basic Documents may be served. The Owner Trustee
initially designates its Corporate Trust Office as its principal office for such
purposes. The Owner Trustee shall give prompt written notice to the Transferor
and to the Registered Owners of any change in the location of the Register or
any such office or agency.
SECTION 3.4. Appointment of Paying Agent. The Paying Agent shall make
distributions to Registered Owners pursuant to Section 5.1 and shall report the
amounts of such distributions to the Owner Trustee. The Owner Trustee may revoke
such power and remove the Paying Agent if the Owner Trustee determines in its
sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent shall
initially be the Owner Trustee and any co-paying agent chosen by the Owner
Trustee. The Owner Trustee may resign as Paying Agent and appoint a successor to
act as Paying Agent (which shall be a bank or trust company). The Owner Trustee
shall cause such successor Paying Agent or any additional Paying Agent appointed
by the Owner Trustee to execute and deliver to the Owner Trustee an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Owner Trustee that as Paying Agent, such successor Paying Agent or
additional Paying Agent shall hold all sums, if any, held by it for distribution
to the Registered Owner in trust for the benefit of the Registered Owners
entitled thereto until such sums shall be paid to such Registered Owners. The
Paying Agent shall return all unclaimed funds to the Owner Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 6.3, 6.6, 6.7, 6.8
and 6.9 shall apply to the Owner Trustee also in its role as Paying Agent, for
so long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 3.5. Transferor as Registered Owner. The Transferor in its
individual or any other capacity may become the owner or pledgee of the
beneficial interest and may otherwise deal with the Owner Trustee or its
Affiliates as if it were not the Transferor.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Registered Owner with Respect to Certain
Matters. The Owner Trustee shall not take action with respect to the following
matters, unless (i) the Owner Trustee shall have notified the Registered Owners
in writing of the proposed action at least thirty (30) days before the taking of
such action, and (ii) no Registered Owner shall have notified the Owner Trustee
in writing prior to the thirtieth (30th) day after such notice is given that
such Registered Owner have withheld consent or provided alternative direction:
(a) the election by the Trust to file an amendment to the Certificate
of Trust, a conformed copy of which is attached hereto as Exhibit A, unless such
amendment is required under the Statutory Trust Statute;
-7-
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of the Control Party or any Noteholder is
required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of the Control Party or any Noteholder is not
required and such amendment materially adversely affects the interests of the
Registered Owners;
(d) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner that would not materially adversely affect the interests of the
Registered Owners;
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Registrar, or the consent to the assignment by the Note Registrar,
Paying Agent or Indenture Trustee or Registrar of its obligations under the
Indenture or this Agreement, as applicable; or
(f) the amendment of the Pooling and Servicing Agreement in
circumstances where the consent of the Control Party or any Noteholder is
required.
SECTION 4.2. Action by Registered Owners with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the written direction of
the (a) Registered Owners, with the consent of the Control Party, to remove the
Administrator under the Administration Agreement pursuant to Section 10 thereof,
(b) Registered Owners, with the consent of the Control Party, to appoint a
successor Administrator pursuant to Section 10 of the Administration Agreement,
(c) Control Party, to remove the Servicer under the Pooling and Servicing
Agreement pursuant to Section 8.02 thereof, (d) Control Party, except as
expressly provided in the Basic Documents, to sell the Loans or Receivables or
any interest therein prior to the termination of the Indenture, (e) Registered
Owners, with the consent of the Control Party, to initiate any claim, suit or
proceeding by the Trust or compromise any claim, suit or proceeding brought by
or against the Trust, (f) Registered Owner, with the consent of the Control
Party, to authorize the merger, consolidation or conversion of the Trust with or
into any other statutory trust or entity, (g) Registered Owner, with the consent
of the Control Party, to amend the Certificate of Trust or (h) Registered
Owners, with the consent of the Control Party, to initiate any claim or lawsuit
by the Trust (other than an action to collect on a Receivable or an action by
the Indenture Trustee pursuant to the Indenture) or to compromise any action,
claim or lawsuit brought by or against the Trust (other than an action to
collect on a Receivable or an action by the Indenture Trustee pursuant to the
Indenture). The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the Registered
Owners. If the consent of the Control Party is required, such consent shall be
obtained by the Registered Owners and provided to the Owner Trustee.
SECTION 4.3. Action with Respect to Bankruptcy. The Owner Trustee shall not
have the power to commence a voluntary proceeding in bankruptcy relating to the
Trust without the unanimous prior approval of the Control Party and the
unanimous approval of the Independent Managers of the Transferor.
-8-
SECTION 4.4. Restrictions on Power of Registered Owners. The Registered
Owners shall not direct the Owner Trustee to take or refrain from taking any
action if such action or inaction would be contrary to any obligation of the
Trust or the Owner Trustee under this Agreement or any of the Basic Documents or
would be contrary to Sections 2.3 or 2.4, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the
Registered Owners under this Agreement shall be effective if such action is
taken or such consent is given or withheld by the Holders of a majority of the
beneficial interests in the Trust outstanding as of the close of the preceding
Distribution Date. Except as expressly provided herein, any written notice,
instruction, direction or other document of the Registered Owners delivered
pursuant to this Agreement shall be effective if signed by those Registered
Owners holding not less than a majority of the beneficial interests in the Trust
at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Application of Trust Funds.
(a) On each Purchase Date, the Owner Trustee shall cause the Trust to
borrow the maximum amount permitted under the Indenture and the Note Purchase
Agreement as of such Purchase Date and distribute all such in amounts to the
Registered Owner.
(b) On each Distribution Date, subject to the prior payment of all
fees, expenses and indemnities due and unpaid, the Owner Trustee shall (based on
the information contained in the Servicer's Certificate delivered on the related
Determination Date) distribute to the Registered Owners, on a pro rata basis,
amounts released to the Trust pursuant to the Indenture.
(c) On each Distribution Date, the Owner Trustee shall send to each
Registered Owners the statement described in Section 5.08(a) of the Pooling and
Servicing Agreement and Section 8.2 of the Indenture.
(d) If any withholding tax is imposed on the Trust's distributions (or
allocations of income) to a Registered Owner, such tax shall reduce the amount
otherwise distributable to the Registered Owner in accordance with this Section
5.1. The Owner Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to the Registered Owner sufficient funds for the payment
of any tax that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Registered Owner shall be treated as cash distributed to such
Registered Owner at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Registered Owner), the Owner Trustee may in its sole discretion withhold such
amounts in accordance with this subsection 5.1(c). If a Registered Owner wishes
to apply for a refund of
-9-
any such withholding tax, the Owner Trustee shall reasonably cooperate with such
Registered Owner in making such claim so long as such Registered Owner agrees to
reimburse the Owner Trustee for any out-of-pocket expenses incurred.
SECTION 5.2. Method of Payment. Subject to Section 7.1(c), distributions
required to be made to Registered Owners shall be made to each Registered Owner
of record on the related Record Date (i) by wire transfer, in immediately
available funds, to the account of such Registered Owner at a bank or other
entity having appropriate facilities therefor or, where possible, by infra-bank
book entry credit, if such Registered Owner shall have provided to the Registrar
appropriate written instructions at least five (5) Business Days prior to such
Record Date and the distribution required to be made to such Registered Owner
exceeds $100,000 or (ii) by check mailed to such Registered Owner at the address
of such Registered Owner appearing in the Register.
SECTION 5.3. Accounting and Reports to the Registered Owners, the Internal
Revenue Service and Others. The Owner Trustee shall (a) maintain (or cause to be
maintained) the books of the Trust on the basis of a fiscal year ending December
31 on the accrual method of accounting, (b) deliver to each Registered Owner, as
may be required by the Code and applicable Treasury Regulations or otherwise,
such information as may be required to enable each Registered Owner to prepare
its federal income tax returns, (c) file such tax returns relating to the Trust
and make such elections as may from time to time be required or appropriate
under any applicable state or federal statute or rule or regulation thereunder
so as to maintain the Trust's characterization as a division or branch of the
Originator or as a grantor trust (as described in Section 671 of the Code) for
federal income tax purposes, (d) cause such tax returns to be signed in the
manner required by law and (e) collect or cause to be collected any withholding
tax as described in and in accordance with subsection 5.1(c) with respect to
income or distributions to Registered Owners.
SECTION 5.4. Signature on Returns. The Owner Trustee shall sign on behalf
of the Trust any and all tax returns of the Trust, unless applicable law
requires a Registered Owner to sign such documents, in which case such documents
shall be signed by the Transferor.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1. Duties of Owner Trustee.
(a) The Owner Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Agreement, the Pooling and
Servicing Agreement and the other Basic Documents, including the administration
of the Trust in the interest of the Registered Owners, subject to the Basic
Documents and in accordance with the provisions of this Agreement and the
Pooling and Servicing Agreement. No implied covenants or obligations shall be
read into this Agreement, the Pooling and Servicing Agreement or any other Basic
Document against the Owner Trustee.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under the Basic
Documents to the
-10-
extent the Administrator has agreed in the Administration Agreement to perform
any act or to discharge any duty of the Owner Trustee hereunder or under any
Basic Document, and the Owner Trustee shall not be liable for the default or
failure of the Administrator to carry out its obligations under the
Administration Agreement. The Owner Trustee shall not be obligated to monitor
the performance of the Administrator.
(c) In the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner Trustee
and conforming to the requirements of this Agreement in determining the truth of
the statements and the correctness of the opinions contained therein; provided,
however, that the Owner Trustee shall have examined such certificates or
opinions so as to determine compliance of the same with the requirements of this
Agreement.
(d) The Owner Trustee may not be relieved from liability for its own
grossly negligent action, its own grossly negligent failure to act or its own
willful misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect of subsection
6.1(a) or (b):
(ii) the Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that the
Owner Trustee was grossly negligent in ascertaining the pertinent facts;
and
(iii) the Owner Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 4.1, 4.2 or 6.4 or any other provision
of this Agreement or in accordance with any Basic Document.
(e) Subject to Section 5.1, monies received by the Owner Trustee
hereunder need not be segregated in any manner except to the extent required by
law or the Pooling and Servicing Agreement and the other Basic Documents and may
be deposited under such general conditions as may be prescribed by law, and the
Owner Trustee shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is
inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii)
would, to the actual knowledge of a Responsible Officer of the Owner Trustee,
result in the Trust's becoming taxable as a corporation for federal income tax
purposes.
(g) The Registered Owners shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 6.1.
SECTION 6.2. Rights of Owner Trustee. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party, in such form as the Transferor shall
approve as evidenced conclusively by the Owner Trustee's execution thereof. In
addition to the foregoing, the Owner Trustee is authorized, but shall not be
obligated, to take all actions required of the Trust pursuant to the Basic
Documents.
-11-
The Owner Trustee is further authorized from time to time to take such action as
the Administrator recommends with respect to the Basic Documents.
SECTION 6.3. Acceptance of Trusts and Duties. Except as otherwise provided
in this Article VI, in accepting the trusts hereby created, Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this Agreement.
The Owner Trustee shall not be liable or accountable hereunder or under any
Basic Document under any circumstances, except (i) for its own grossly negligent
action, its own grossly negligent failure to act or its own willfull misconduct
or (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 6.6 and expressly made by the Owner Trustee. In particular,
but not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Loan or Receivable or the perfection and priority of any security interest
created by any Loan in any Equipment or the maintenance of any such perfection
and priority, or for or with respect to the sufficiency of the Owner Trust
Estate or its ability to generate the distributions and payments to be made to
Registered Owners under this Agreement or to Noteholders under the Indenture,
including, without limitation: the existence, condition and ownership of any
Equipment; the existence and enforceability of any insurance thereon; the
existence and contents of any Loan on any computer or other record thereof; the
validity of the assignment of any Loan to the Trust or of any intervening
assignment; the completeness of any Loan; the performance or enforcement of any
Loan; the compliance by the Transferor or the Servicer with any warranty or
representation made under any Basic Document or in any related document or the
accuracy of any such warranty or representation or any action of the
Administrator, the Trustee or the Servicer or any subservicer taken in the name
of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator or any Registered Owner;
(c) no provision of this Agreement or any Basic Document shall require
the Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or under
any Basic Document, if the Owner Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes or any amounts payable with respect
to the beneficial interests in the Trust;
-12-
(e) the Owner Trustee shall not be responsible for or in respect of
and makes no representation as to the validity or sufficiency of any provision
of this Agreement or for the due execution hereof by the Transferor or for the
form, character, genuineness, sufficiency, value or validity of any of the Owner
Trust Estate or for or in respect of the validity or sufficiency of the Basic
Documents, the Notes or of any Loans or Receivables or any related documents,
and the Owner Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to any Registered Owner, other than as expressly
provided for herein and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Transferor or the
Servicer under any of the Basic Documents or otherwise and the Owner Trustee
shall have no obligation or liability to perform the obligations of the Trust
under this Agreement or the Basic Documents that are required to be performed by
the Administrator under the Administration Agreement, the Indenture Trustee
under the Indenture, the Servicer under the Pooling and Servicing Agreement or
the Originator under the Purchase Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or direction of any of
the Registered Owners, unless such Registered Owner have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
SECTION 6.4. Action upon Instruction by Registered Owners.
(a) Subject to Section 4.4, the Registered Owners may by written
instruction direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the Registered
Owners pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document, or is unsure as to the application, intent, interpretation or
meaning of any provision of this Agreement or the Basic Documents, the Owner
Trustee shall promptly give notice (in such form as shall be appropriate under
the circumstances) to the Registered Owners requesting instruction as to the
course of action to be adopted, and, to the extent the Owner Trustee acts in
good faith in accordance with any such instruction received, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee shall not have received appropriate
-13-
instructions within ten (10) days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action which is consistent, in its view, with this Agreement or the
Basic Documents, and as it shall deem to be in the best interests of the
Registered Owners, and the Owner Trustee shall have no liability to any Person
for any such action or inaction.
SECTION 6.5. Furnishing of Documents. The Owner Trustee shall furnish to
the Registered Owners, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 6.6. Representations and Warranties of Owner Trustee. The Owner
Trustee hereby represents and warrants to the Transferor, for the benefit of the
Registered Owners, that:
(a) It is a Delaware banking corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation.
The eligibility requirements set forth in Section 6.13 (a)-(c) are satisfied
with respect to it.
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this Agreement
(i) shall not violate any provision of any law or regulation governing the
banking and trust powers of the Owner Trustee or any order, writ, judgment or
decree of any court, arbitrator or governmental authority applicable to the
Owner Trustee or any of its assets, (ii) shall not violate any provision of the
corporate charter or by-laws of the Owner Trustee, or (iii) shall not violate
any Provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien on any
properties included in the Trust pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to have a
materially adverse effect on the Owner Trustee's performance or ability to
perform its duties as Owner Trustee under this Agreement or the transactions
contemplated in this Agreement.
(d) The execution, delivery and performance by the Owner Trustee of
this Agreement shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency regulating the
corporate trust activities of it.
(e) This Agreement has been duly executed and delivered by the Owner
Trustee and constitutes the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
-14-
SECTION 6.7. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper reasonably
believed by it to be genuine and reasonably believed by it to be signed by the
proper party or parties and need not investigate any fact or matter in any such
document. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any entity as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the chief executive officer, or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee: (i) may act directly or through its agents,
attorneys, custodians or nominees pursuant to agreements entered into with any
of them, and the Owner Trustee shall not be liable for the conduct or misconduct
of such agents, attorneys, custodians or nominees if such agents, attorneys,
custodians or nominees shall have been selected by the Owner Trustee with
reasonable care; and (ii) may consult with counsel, accountants and other
skilled professionals to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the opinion or advice of any such counsel,
accountants or other such Persons.
SECTION 6.8. Owner Trustee May Own Beneficial Interests and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of beneficial interests in the Trust or Notes and may deal with the
Transferor, the Administrator, the Indenture Trustee and the Servicer in
transactions in the same manner as it would have if it were not the Owner
Trustee.
SECTION 6.9. Compensation and Indemnity. The Owner Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed
upon before the date hereof between the Transferor and the Owner Trustee, and
the Owner Trustee shall be entitled to be reimbursed by the Servicer for its
other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, custodians, nominees,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder. The Servicer shall indemnify the Owner Trustee and its successors,
assigns, agents and servants in accordance with the provisions of Section 8.01
of the Pooling and Servicing Agreement. The compensation and indemnities
described in this Section 6.9 shall survive the resignation or termination of
the Owner Trustee or the termination of this Agreement. Any amounts paid to the
Owner Trustee pursuant to this Article VI shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
SECTION 6.10. Replacement of Owner Trustee.
-15-
(a) The Owner Trustee may give notice of its intent to resign and be
discharged from the trusts hereby created by written notice thereof to the
Administrator; provided that no such resignation shall become effective, and the
Owner Trustee shall not resign, prior to the time set forth in Section 6.10(c).
The Administrator may appoint a successor Owner Trustee by delivering a written
instrument, in duplicate, to the resigning Owner Trustee and the successor Owner
Trustee. If no successor Owner Trustee shall have been appointed and have
accepted appointment within thirty (30) days after the giving of such notice,
the resigning Owner Trustee giving such notice may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee. The
Administrator shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in accordance with
the provisions of Section 6.13 and shall fail to resign after written
request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or insolvent;
(iii) a receiver or other public officer shall be appointed or take
charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be incapable of acting.
(b) If the Owner Trustee gives notice of its intent to resign or is
removed or if a vacancy exists in the office of Owner Trustee for any reason,
the Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate (one copy of which instrument shall be delivered to the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee)
and shall pay all fees owed to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and appointment of
a successor Owner Trustee pursuant to any of the provisions of this Section 6.10
shall not become effective and no such resignation shall be deemed to have
occurred until a written acceptance of appointment is delivered by the successor
Owner Trustee to the outgoing Owner Trustee and the Administrator, all fees and
expenses due to the outgoing Owner Trustee are paid and such successor Owner
Trustee is reasonably acceptable to the Control Party. Any successor Owner
Trustee appointed pursuant to this Section 6.10 shall be eligible to act in such
capacity in accordance with Section 6.13 and, following compliance with the
preceding sentence, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like effect
as if originally named as Owner Trustee. The Administrator shall provide notice
of such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
(d) The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement. The Administrator and the predecessor
Owner Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
-16-
(e) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 6.10, the Administrator shall mail notice of the
successor of such Owner Trustee to all Registered Owners, the Indenture Trustee,
the Control Party, the Noteholders and the Rating Agencies.
SECTION 6.11. Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
SECTION 6.12. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Owner Trust Estate may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or as separate trustee or trustees, of all or any part of the Owner
Trust Estate, and to vest in such Person, in such capacity, such title to the
Trust, or any part thereof, and, subject to the other provisions of this Section
6.12, such powers, duties, obligations, rights and trusts as the Administrator
and the Owner Trustee may consider necessary or desirable. If the Administrator
shall not have joined in such appointment within fifteen (15) days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 6.13 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 6.10.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
-17-
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement
(unless such other trustee acts or fails to act at the direction of such
first trustee); and
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trust conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.13. Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times: (a) be a corporation satisfying the provisions of Section
3807(a) of the Statutory Trust Statute; (b) be authorized to exercise corporate
trust powers; (c) have a combined capital and surplus of at least $50,000,000
and be subject to supervision or examination by federal or state authorities;
(d) have a long-term unsecured debt rating of at least Baa2 by Xxxxx'x Investors
Service or be otherwise satisfactory to Xxxxx'x Investors Service; and (e) have
a long-term unsecured debt rating of at least BBB by Standard & Poor's or be
otherwise satisfactory to Standard & Poor's. If such corporation shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section 6.13, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Owner Trustee shall cease
to be eligible in accordance with the provisions of this Section 6.13, the Owner
Trustee shall resign immediately in the manner and with the effect specified in
Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1. Termination of Trust Agreement.
-18-
(a) This Agreement (other than Section 6.9) and the Trust shall
terminate and be of no further force or effect on the final distribution by the
Owner Trustee of all monies or other property or proceeds of the Owner Trust
Estate in accordance with the terms of the Indenture, the Pooling and Servicing
Agreement (including the exercise by the Servicer of its option to purchase the
Loans pursuant to Section 10.01 of the Pooling and Servicing Agreement) and
Article V. The bankruptcy, liquidation, dissolution, death or incapacity of any
Registered Owner or the Owner Trustee shall not (x) operate to terminate this
Agreement or the Trust, nor (y) entitle such Registered Owner's or Owner
Trustee's legal representatives or heirs to claim an accounting or to take any
action or proceeding in any court for a partition or winding up of all or any
part of the Trust or the Owner Trust Estate nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in Section 7.1(a), neither the Transferor nor
any Registered Owner shall be entitled to revoke or terminate the Trust or this
Agreement.
(c) Notice of any termination of the Trust specifying the Distribution
Date upon which the Paying Agent shall be responsible for payment of the final
distribution to the Registered Owners, shall be given by the Paying Agent by
letter to Registered Owners mailed within five (5) Business Days of receipt of
notice of termination of the Pooling and Servicing Agreement from the Servicer
given pursuant to Section 10.02 of the Pooling and Servicing Agreement, stating:
(i) the Distribution Date upon or with respect to which the final distribution
shall be made; (ii) the amount of any such final distribution; and (iii) that
the Record Date that would otherwise be applicable to such Distribution Date
shall not be applicable. The Paying Agent shall give such notice to the
Registrar (if other than the Owner Trustee) and the Paying Agent at the time
such notice is given to Registered Owners. The Paying Agent shall cause to be
distributed to Registered Owners amounts distributable on such Distribution Date
pursuant to Section 5.1.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee, upon the written direction of the Registered Owners shall cause the
Certificate of Trust to be canceled by filing a certificate of cancellation with
the Secretary of State in accordance with the provisions of Section 3810 of the
Statutory Trust Statute.
ARTICLE VIII
AMENDMENTS
SECTION 8.1. Amendments. This Agreement may also be amended from time to
time by the Transferor and the Owner Trustee with the consent of Control Party
and the consent of the Registered Owners evidencing not less than a majority of
the beneficial interests in the Trust as of the close of business on the
preceding Distribution Date (which consent, whether given pursuant to this
Section 8.2 or pursuant to any other provision of this Agreement, shall be
conclusive and binding on such Person and on the Control Party, all future
Registered Owners and any holders of such Notes and of any Notes issued upon the
transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Notes) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the Control Party,
the Noteholders or the Registered Owners; provided, however, that no such
amendment may be
-19-
made to this Agreement which would be prohibited under the proviso of Section
9.2 of the Indenture if such amendment were to be made to the Indenture unless
the consent that would have been required therein, if such amendment were to be
made to the Indenture, shall have been obtained.
SECTION 8.2. Form of Amendments.
(a) Promptly after the execution of any amendment, supplement or
consent pursuant to Section 8.l. or 8.2, the Person who sought such amendment,
supplement or consent shall furnish written notification of the substance of
such amendment or consent to each Registered Owner, the Control Party and the
Indenture Trustee.
(b) It shall not be necessary for the consent of Registered Owner
pursuant to Section 8.2 to approve the particular form of any proposed amendment
or consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents (and any other consents
of Registered Owner provided for in this Agreement or in any other Basic
Document) and of evidencing the authorization of the execution thereof by the
Control Party and Registered Owners shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(d) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Officer's Certificate stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent to
such execution have been satisfied. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. No Legal Title to Owner Trust Estate. The Registered Owners
shall not have legal title to any part of the Owner Trust Estate. The Registered
Owners shall be entitled to receive distributions with respect to their
undivided beneficial interest therein only in accordance with Articles V and
VII. No transfer, by operation of law or otherwise, of any right, title, and
interest of the Registered Owners to and in their beneficial interest in the
Owner Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
SECTION 9.2. Limitations on Rights of Others. Except for Section 9.12 and
as otherwise provided herein, the provisions of this Agreement are solely for
the benefit of the Owner Trustee, the Transferor, the Registered Owners, the
Administrator and, to the extent expressly provided herein, the Control Party,
the Indenture Trustee and the Noteholders, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under or
in respect of this Agreement or any covenants, conditions or provisions
contained herein. This
-20-
Agreement shall also inure to the benefit of the Control Party. Without limiting
the generality of the foregoing, all covenants and agreements in this Agreement
which confer rights upon the Control Party shall be for the benefit of and run
directly to the Control Party, and the Control Party shall be entitled to rely
on and enforce such covenants, subject, however, to the limitations on such
rights provided in this Agreement and the Basic Documents. The Control Party may
disclaim any of its rights and powers under this Agreement (but not its duties
and obligations under the Policy) upon delivery of a written notice to the
Trust.
The Owner Trustee undertakes to perform or observe only such of the
covenants and obligations of the Owner Trustee as are expressly set forth in
this Agreement, and no implied covenants or obligations with respect to the
Owner Trustee shall be read into this Agreement or the other Basic Documents
against the Owner Trustee. The Owner Trustee shall not be deemed to owe any
fiduciary duty to the Control Party, and shall not be liable to any such person
for the failure of the Trust to perform its obligations to such persons other
than as a result of the gross negligence or willful misconduct of the Owner
Trustee in the performance of its express obligations under this Agreement.
SECTION 9.3. Notices. All demands, notices and communications upon or to
the Transferor, the Servicer, the Administrator, the Indenture Trustee, the
Owner Trustee, the Control Party, the Rating Agencies or any Registered Owner
under this Agreement shall be delivered as specified in Appendix B to the
Pooling and Servicing Agreement.
SECTION 9.4. Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
enforceable to the fullest extent permitted, and if not so permitted, shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Agreement or of the rights of the Registered
Owners.
SECTION 9.5. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts (and by different parties on separate
counterparts), each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument.
SECTION 9.6. Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Transferor, the
Owner Trustee and each Registered Owner and their respective successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Registered Owner shall bind
the successors and assigns of such Registered Owner.
SECTION 9.7. No Petition Covenant. Notwithstanding any prior termination of
this Agreement, the Trust (or the Owner Trustee on behalf of the Trust), and
each Registered Owner, by accepting a beneficial interest herein, hereby
covenant and agree that they shall not, prior to the date which is one year and
one day after the termination of this Agreement acquiesce, petition or otherwise
invoke or cause the Transferor to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the
-21-
Transferor 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 Transferor or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Transferor.
SECTION 9.8. No Recourse. Each Registered Owner, by accepting a beneficial
interest herein, acknowledges that such Person's beneficial interest herein
represents a beneficial interests in the Trust only and does not represent
interests in or obligations of the Transferor, the Servicer, the Administrator,
the Owner Trustee, the Indenture Trustee or any Affiliate thereof and no
recourse, either directly or indirectly, may be had against such parties or
their assets, except as may be expressly set forth or contemplated in this
Agreement or the Basic Documents. Except as expressly provided in the Basic
Documents, neither the Transferor, the Servicer nor the Owner Trustee in their
respective individual capacities, nor any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns,
shall be personally liable for, nor shall recourse be had to any of them for,
the distribution of any amount with respect to the beneficial interests herein,
or the Owner Trustee's performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in this Agreement, it being
expressly understood that said covenants and obligations have been made by the
Owner Trustee solely in its capacity as the Owner Trustee. Each Registered Owner
by the acceptance of a beneficial interest herein shall agree that, except as
expressly provided in the Basic Documents, in the case of nonpayment of any
amounts with respect to the beneficial interests herein, it shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom.
SECTION 9.9. Headings. The headings of the various Articles and Sections
herein are for purposes of reference only and shall not affect the
meaning or interpretation of any provision hereof.
SECTION 9.10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.11. Transfer Restrictions. The beneficial interests herein may
not be acquired by or for the account of (i) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting a beneficial
interest herein, the Registered Owner shall be deemed to have represented and
warranted that it is not a Benefit Plan.
SECTION 9.12. Administrator. The Administrator is authorized to execute on
behalf of the Trust all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Trust to prepare, file
or deliver pursuant to the Basic Documents. Upon request, the Owner Trustee
shall execute and deliver to the Administrator a power of attorney appointing
the Administrator, its agent and attorney-in-fact to execute all such documents,
reports, filings, instruments, certificates and opinions.
-22-
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
WILMINGTON TRUST COMPANY
as Owner Trustee
By: /s/ W. Xxxxx Xxxxxxxxxx
----------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Vice President
ALLIANCE LAUNDRY EQUIPMENT
RECEIVABLES 2002 LLC, as Transferor
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
Acknowledged and Accepted:
ALLIANCE LAUNDRY SYSTEMS LLC
as Servicer and Administrator
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: VP, Law and Human Resources
& Secretary
-23-
EXHIBIT A
CERTIFICATE OF TRUST OF
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES TRUST 2002-A
This Certificate of Trust of Alliance Laundry Equipment Receivables Trust
2002-A (the "Trust"), is being duly executed and filed on behalf of the Trust by
the undersigned, as trustee, to form a statutory trust under the Delaware
Statutory Trust Statute Act (12 Del. C. (S) 3801 et xxx.) (the "Act").
1. Name. The name of the statutory trust formed by this Certificate of
Trust is Alliance Laundry Equipment Receivables Trust 2002-A.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is WILMINGTON TRUST COMPANY, 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 000000, Attention: Corporate Trustee Administration.
3. This Certificate of Trust shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Trust
in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
trustee of the Trust.
By:
----------------------------------
Name:
Title:
-1-
