EXHIBIT 10.63
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT, dated as of November 26, 2002 (as
modified, amended, restated or supplemented from time to time, this
"Agreement"), is by and between GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation ("GECC"), acting in its capacity as the administrative agent under
the OpCo Credit Agreement (hereinafter defined) and the other "Loan Documents"
referenced therein (in such capacity, together with its successors in such
capacity, the "OpCo Agent"), and The Bank of New York, a New York banking
corporation, acting in its capacity as the indenture trustee under the Indenture
(hereinafter defined) and the other "Basic Documents" referenced therein (in
such capacity, together with its successors in such capacity, the "Indenture
Trustee").
R E C I T A L S:
A. ALLIANCE LAUNDRY SYSTEMS LLC, a Delaware
limited liability company ("ALS"), has entered into a Purchase
Agreement dated as of November 26, 2002 (as amended,
supplemented, restated or otherwise modified from time to time,
the "Purchase Agreement") with ALLIANCE LAUNDRY EQUIPMENT
RECEIVABLES 2002 LLC, a Delaware limited liability company (the
"ALER"), pursuant to which ALS has agreed to convey to ALER,
and ALER has agreed to purchase and accept from ALS, all of the
right, title and interest of ALS in the Transferred Assets.
B. ALER has entered into a Pooling and
Servicing Agreement, dated as of November 26, 2002 (as amended,
supplemented, restated or otherwise modified from time to time,
the "Pooling and Servicing Agreement") among ALS, ALER and
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES TRUST 2002-A (the
"Issuer") pursuant to which ALER transfers to the Issuer all of
the Specified Assets.
C. The Issuer is financing its acquisition of
Specified Assets with the proceeds of notes issued by the
Issuer pursuant to the terms of an Indenture dated as of
November 26, 2002 (as amended, supplemented, restated or
otherwise modified from time to time, the "Indenture") between
the Issuer, as borrower, and the Indenture Trustee and the
related Note Purchase Agreement, dated as of November 26, 2002
(as amended, supplemented, restated or otherwise modified from
time to time, the "Note Purchase Agreement"), among ALS, the
Issuer, ALER, the Indenture Trustee, BEAR ▇▇▇▇▇▇▇ & CO. INC.,
CANADIAN IMPERIAL BANK OF COMMERCE, the note purchasers party
thereto and such other agents party thereto.
D. ALLIANCE LAUNDRY HOLDINGS LLC, a Delaware
limited liability company ("Parent"), ALS, GECC and the other
financial institutions from time to time party thereto
(collectively, the "OpCo Lenders"), ▇▇▇▇▇▇ BROTHERS, INC., as
Arranger, and the OpCo Agent are parties to that certain
Amended and Restated Credit Agreement dated August 2, 2002 (as
amended, supplemented, restated or otherwise modified from time
to time, the "OpCo Credit Agreement"), pursuant to which the
OpCo Lenders have agreed to make certain loans and other credit
accommodations available to or for the account of ALS, provided
that, among other conditions, ALS secures its obligations under
the OpCo Credit Agreement, and each of Parent and ALLIANCE
LAUNDRY CORPORATION, a Delaware corporation ("ALC"), guarantees
ALS's obligations under the OpCo Credit Agreement and secures
its guarantee, in each case, pursuant to the terms of an
Amended and Restated Guarantee and Collateral Agreement dated
as of August 2, 2002 by and among ALS, Parent, ALC and the OpCo
Agent (as amended, supplemented, restated or otherwise modified
from time to time, the "Guarantee and Collateral Agreement").
E. The parties hereto wish to set forth
certain agreements with respect to the assets conveyed or
encumbered pursuant to the agreements described above.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed as follows:
ARTICLE 1. DEFINITIONS
1.1. Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Asset" means a Receivable, an Equipment Loan, and the Related
Assets, regardless of whether such Asset is owned by an Originator, by ALER or
by the Issuer.
"Bankruptcy Code" means the provisions of title 11 of the United
States Code, 11 U.S.C.(S)(S) 101 et seq.
"Basic Documents" has the meaning specified in the Pooling and
Servicing Agreement.
"Business Day" means any day that is not a Saturday, a Sunday or a
day on which banks are required or permitted to be closed in the State of New
York.
"Claim" means the OpCo Claim or the Outstanding Obligations, as
applicable.
"Collection Accounts" means, collectively, all lockboxes, bank
accounts or cash collateral accounts, any rights in and to any escrow assets or
any similar accounts or assets
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relating to, or containing or constituting Collections or proceeds of or
distributions on, any of the Assets, including, without limitation, each of the
Lockbox Accounts, the Loan Collection Account and the Receivables Collections
Account (each as defined in the Pooling and Servicing Agreement).
"Collections" means with respect to any Asset, the sum of all
payments received on or with respect thereto.
"Control Party" has the meaning specified in the Pooling and
Servicing Agreement.
"Disposition" means any liquidation of the Parent or any of its
Subsidiaries or their assets, the establishment of any receivership for the
Parent or any of its Subsidiaries or their assets, a bankruptcy proceeding
(either voluntary or involuntary) of the Parent or any of its Subsidiaries, the
payment of any insurance, condemnation, confiscation, seizure or other claim
upon the condemnation, confiscation, seizure, loss or destruction of, or damage
to, or any other sale, transfer, assignment or other disposition of assets of
the Parent or any of its Subsidiaries (other than the sale, contribution and
pledge of interests in the Transferred Assets pursuant to the Purchase Agreement
and the other Basic Documents).
"Effective Advance Rate" means, on any Purchase Date following
delivery of an Enforcement Notice by the OpCo Agent to the Indenture Trustee and
ALS, the percentage of the aggregate outstanding principal balance or unpaid
face amount, as the case may be, of all New Assets, that the Third Party
Financiers have advanced in cash, pursuant to the Indenture and the Note
Purchase Agreement.
"Enforcement" means, collectively or individually, (a)
acceleration of the loans and other obligations outstanding under the Basic
Documents and/or the OpCo Loan Documents; or (b) commencement of any judicial or
nonjudicial enforcement of any of the default rights and remedies against the
Parent or any of its Subsidiaries (other than ALER or the Issuer) or any of
their respective assets under the OpCo Loan Documents or against ALER, the
Issuer or any of their assets under the Basic Documents.
"Enforcement Notice" means a written notice delivered in
accordance with Section 2.4 hereof which notice: (a) if delivered by the
Indenture Trustee, shall state that (i) a Warehouse Event of Default has
occurred under the Indenture, (ii) the loans and other obligations outstanding
thereunder have been accelerated following an Event of Default thereunder, and
(iii) an Enforcement Period has commenced, and (b) if delivered by the OpCo
Agent, (i) shall state that (A) an OpCo Event of Default has occurred, (B) the
indebtedness of the Parent and its Subsidiaries (other than ALER and the Issuer)
to the OpCo Agent or any of the OpCo Lenders under the OpCo Loan Documents has
been accelerated following an Event of Default thereunder, and (C) an
Enforcement Period has commenced, and (ii) may, subject to the conditions
specified in Section 2.1 of this Agreement, state that subsequent sales and
contributions of Assets under the Purchase Agreement must terminate.
"Enforcement Period" means the period of time following the actual
receipt by either the OpCo Agent of an Enforcement Notice or the Indenture
Trustee of a second
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Enforcement Notice delivered by the other until the earliest of the following:
(a) the Outstanding Obligations have been satisfied in full, the Third Party
Financiers and the Indenture Trustee have no further obligations under the Basic
Documents and the Basic Documents have been terminated; (b) the OpCo Claim has
been satisfied in full, the OpCo Agent and the OpCo Lenders have no further
obligations under the OpCo Loan Documents and the OpCo Loan Documents have been
terminated; and (c) the parties hereto agree in writing to terminate the
Enforcement Period.
"Equipment" has the meaning specified in the Purchase Agreement.
"Equipment Loan" has the meaning specified in the Pooling and
Servicing Agreement.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, and any agency, department or other
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the UCC or
comparable law of any jurisdiction.
"New Assets" means, as of any date of determination, all
Transferred Assets transferred to ALER and from ALER to the Issuer on any
Purchase Date following the date on which the OpCo Agent delivers the
Enforcement Notice referred to in clause (a) of Section 2.1 of this Agreement.
"Obligor" means, with respect to any Asset, the Person primarily
obligated to make payments in respect thereof.
"OpCo Claim" means all of the indebtedness, obligations and other
liabilities of the Parent or any of its Subsidiaries (other than ALER or the
Issuer) now or hereafter arising under, or in connection with the OpCo Loan
Documents, including, but not limited to, all reimbursement obligations of the
Parent with respect to any loans made or any letters of credit issued
thereunder, all guarantee obligations of the Parent's Subsidiaries (other than
ALER or the Issuer) under the OpCo Loan Documents, any interest thereon
(including, without limitation, interest accruing after the commencement of a
bankruptcy, insolvency or similar proceeding relating to any of the Parent or
its Subsidiaries (other than ALER or the Issuer), whether or not such interest
is an allowed claim in any such proceeding), any reimbursement obligations,
premiums, make-whole amounts, yield maintenance amounts, fees or expenses due
thereunder, and any costs of collection or enforcement.
"OpCo Collateral" means all property and interests in property now
owned or hereafter acquired or created, of the Parent or any of its Subsidiaries
(other than ALER and/or the Issuer) in or upon which a OpCo Interest is granted
or purported to be granted by any such
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Person to the OpCo Agent under any of the OpCo Loan Documents, excluding,
however, the Trust Estate.
"OpCo Event of Default" means an "Event of Default" or "Default"
under and as defined in the OpCo Credit Agreement.
"OpCo Interest" means, with respect to any property or interest in
property (including, without limitation, the OpCo Collateral), now owned or
hereafter acquired or created, of the Parent or any of its Subsidiaries (other
than ALER or the Issuer), any lien, claim, encumbrance, security interest or
other interest of the OpCo Agent in such property or interests in or to such
property.
"OpCo Loan Documents" means the OpCo Credit Agreement, the
Guarantee and Collateral Agreement, and all other "Loan Documents" under and as
defined in the OpCo Credit Agreement.
"OpCo Lockbox Account" means a lockbox and associated account in
the name of ALS that is subject to a first priority perfected security interest
in favor of the OpCo Agent into which only proceeds of OpCo Collateral are to be
deposited.
"Originator" means ALS and any of its affiliates that is hereafter
added to the Purchase Agreement as a seller or contributor of Assets thereunder.
"Outstanding Obligations" has the meaning specified in the Pooling
and Servicing Agreement.
"Person" means any individual, sole proprietorship, partnership,
joint venture, unincorporated organization, trust, association, corporation
(including a business trust), limited liability company, institution, public
benefit corporation, joint stock company, Governmental Authority or any other
entity of whatever nature.
"Purchase Date" has the meaning specified in the Purchase
Agreement.
"Purchased Equipment Loans" has the meaning specified in the
Purchase Agreement.
"Receivable" has the meaning specified in the Pooling and
Servicing Agreement. Restructurings and extensions of such indebtedness and
other rights and obligations including, without limitation, a restructuring in
which a new Obligor is permitted to assume the obligations of an existing
Obligor, shall not be deemed to give rise to the creation of new Receivables.
"Records" has the meaning ascribed thereto in the Pooling and
Servicing Agreement and includes all other documents, books, records and other
information (including computer programs, tapes, disks, data processing software
and related property and rights) prepared and maintained by any Originator, the
Servicer, ALER or the Issuer with respect to the Warehouse Collateral and the
Obligors thereunder.
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"Related Assets" has the meaning specified in the Pooling and
Servicing Agreement.
"Servicer" has the meaning specified in the Pooling and Servicing
Agreement.
"Subsidiary" means, with respect to any Person, any corporation or
other entity (a) of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other
Persons performing similar functions are at the time directly or indirectly
owned by such Person or (b) that is directly or indirectly controlled by such
Person within the meaning of control under Section 15 of the Securities Act of
1933, as amended from time to time.
"Third Party Financiers" has the meaning specified in the Purchase
Agreement.
"Transferred Asset" means any Asset sold or contributed to ALER
pursuant to the Purchase Agreement.
"Trust Estate" has the meaning specified in the Indenture.
"UCC" means, with respect to any jurisdiction, the Uniform
Commercial Code as the same may, from time to time, be enacted and in effect in
such jurisdiction.
"Unsold Asset" means any Asset or other account, general
intangible, instrument or chattel paper of any Originator other than Transferred
Assets.
"Unsold Equipment Loan" mean any Equipment Loan that is an Unsold
Asset.
"Warehouse Collateral" means Transferred Assets, together with all
other assets and rights included in the Trust Estate, whether now or hereafter
acquired.
"Warehouse Event of Default" means an "Event of Default" as
defined in the Pooling and Servicing Agreement.
"Warehouse Interest" means, with respect to any of the Warehouse
Collateral or any property or interest in property, any lien, claim,
encumbrance, security interest or other interest of any or all of ALER, the
Issuer, the Third Party Financiers and/or the Indenture Trustee in or to any of
such property.
ARTICLE 2. INTERCREDITOR PROVISIONS
2.1. Termination of Sales and Contributions. If (a) the OpCo Agent
delivers an Enforcement Notice to the Indenture Trustee and ALS that conforms to
the requirements of clause (b)(i) of the definition of "Enforcement Notice" and
(b) the OpCo Agent, following the delivery of such Enforcement Notice, delivers
to the Indenture Trustee and ALS a second Enforcement Notice stating that if,
(i) (A) for any Purchase Date (which occurs at least two (2) Business Days after
actual receipt by the Indenture Trustee of such second notice) the Effective
Advance Rate under the Basic Documents for New Assets consisting of Receivables
is less than 60% or (B) for any Purchase Date (which occurs at least two (2)
Business Days after actual
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receipt by the Indenture Trustee of such second notice) the Effective Advance
Rate under the Basic Documents for New Assets consisting of Equipment Loans is
less than 87%, then (ii) no further sales or contributions shall be permitted
under the Purchase Agreement and all subsequent sales and contributions of
Assets under the Purchase Agreement shall be ineffective. If any such subsequent
sale or contribution shall nonetheless occur, (x) the OpCo Interest in the New
Assets subject thereto and in all proceeds thereof shall not be released, (y)
such New Assets shall not constitute Transferred Assets and any Warehouse
Interest therein shall be subordinated to any OpCo Interest therein and (z) any
cash advanced by the Third Party Financiers in connection therewith shall be
returned promptly.
2.2. Distribution of Proceeds.
(a) After the delivery of an Enforcement Notice by the Indenture
Trustee, but subject to Section 2.7 below, (i) all proceeds of the Warehouse
Collateral or any Disposition thereof which come into the possession of the OpCo
Agent or any of the OpCo Lenders shall be held in trust for, and promptly turned
over to, the applicable Collection Account for application against the
Outstanding Obligations in accordance with the Basic Documents until the
Outstanding Obligations have been paid and satisfied in full in cash and the
Basic Documents have terminated, and (ii) any remaining proceeds of the
Warehouse Collateral shall be paid to the Issuer or as otherwise required by
applicable law.
(b) After the delivery of an Enforcement Notice by the OpCo Agent, but
subject to Section 2.7 below, (i) all proceeds of the OpCo Collateral or any
Disposition thereof which come into the possession of the Indenture Trustee or
any of the Third Party Financiers shall be held in trust for, and promptly
turned over to, the OpCo Lockbox Account if one exists (and otherwise, to the
OpCo Agent) for application against (or cash-collateralization of) the OpCo
Claim in accordance with the OpCo Documents until the OpCo Claim has been paid
and satisfied in full in cash and the OpCo Documents have terminated, and (ii)
any remaining proceeds of the OpCo Collateral shall be paid to the Parent or the
applicable Subsidiary or as otherwise required by applicable law.
2.3. Collection Accounts.
(a) The Indenture Trustee hereby acknowledges that, subject to Section
2.7 below, Collections of Unsold Assets which are deposited in the Collection
Accounts shall not constitute Warehouse Collateral, and the Indenture Trustee
has no claim to such Collections as they are not property of ALER or the Issuer.
(b) The OpCo Agent hereby acknowledges that, subject to Section 2.7
below, Collections of Transferred Assets which are deposited in the OpCo Lockbox
Account shall not constitute OpCo Collateral, and the OpCo Agent has no claim to
such Collections.
(c) The OpCo Agent agrees that it shall not, at any time prior to
Enforcement, exercise any rights it may have under the OpCo Loan Documents to
send any notices to Obligors (i) informing them of the OpCo Agent's interest, if
any, in the Transferred Assets, or (ii) directing such Obligors to make payments
in any particular manner of any amounts due under the Transferred Assets; the
OpCo Agent further agrees that it shall not take any of the foregoing
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actions during Enforcement prior to the later of payment in full of the
Outstanding Obligations and the termination of the Basic Documents, except that
the OpCo Agent may inform any Obligors of Unsold Assets that such Unsold Assets
have been pledged to the OpCo Agent. Subject to Section 2.7 below, the OpCo
Agent hereby agrees to return reasonably promptly to the Collection Accounts
funds which are reasonably identified to the OpCo Agent by the Servicer (through
supporting documentation) to constitute proceeds of the Warehouse Collateral.
Subject to Section 2.7 below, the Indenture Trustee hereby agrees to return
reasonably promptly to the applicable Originator funds received by the Indenture
Trustee which are reasonably identified to the Indenture Trustee by the Servicer
(through supporting documentation) to constitute proceeds of an Unsold Asset
constituting OpCo Collateral (including such funds received in the Collection
Accounts); provided that if the OpCo Agent shall so request in a written notice
to the Indenture Trustee delivered at any time after delivery of an Enforcement
Notice exists and is continuing, the Indenture Trustee shall transfer such funds
to the OpCo Lockbox Account instead of returning them to an Originator. The OpCo
Agent agrees that, prior to the later of payment in full of the Outstanding
Obligations and the termination of the Basic Documents, if it receives payments
directly from any Obligor on account of an Unsold Asset, it shall promptly
notify the Indenture Trustee and the Servicer in order that the Servicer may
determine whether such payment was, in fact, properly allocated to such Unsold
Asset in accordance with the terms of this Section 2.3, and if the Servicer
shall have reasonably identified (through supporting documentation) to the OpCo
Agent that such payment was not properly allocated to such Unsold Asset, the
OpCo Agent hereby agrees to return reasonably promptly such payment by wire
transfer to the applicable Collection Account.
2.4. Enforcement Actions. Each of the OpCo Agent and the Indenture
Trustee agrees to use reasonable efforts to give an Enforcement Notice to the
other prior to commencement of Enforcement (but failure to do so shall not
prevent such Person from commencing Enforcement or affect its rights hereunder
nor create any cause of action or liability against such Person). Subject to the
foregoing, each of the parties hereto agrees that during an Enforcement Period:
(a) Subject to Section 2.7 below and to any applicable restrictions in
the Basic Documents, the Indenture Trustee may at its option and without the
prior written consent of the OpCo Agent take any action to (i) accelerate
payment of the Outstanding Obligations or any other obligations and liabilities
under any of the Basic Documents and (ii) liquidate the Warehouse Collateral or
foreclose or realize upon or enforce any of its rights with respect to the
Warehouse Collateral.
(b) Subject to Section 2.7 below and to any applicable restrictions in
and to the terms of the OpCo Loan Documents, the OpCo Agent may, at its option,
and without the prior written consent of the Indenture Trustee, take any action
to (i) accelerate payment of or require cash collateral for the OpCo Claim or
any other obligation or liability arising under any of the OpCo Loan Documents
and (ii) liquidate the OpCo Collateral or foreclose or realize upon or enforce
any of its rights with respect to the OpCo Collateral.
2.5. Access to Records. Subject to any applicable restrictions in the
Basic Documents, the OpCo Agent agrees that to the extent it now or hereafter
obtains title to or lawful possession of any premises leased or owned by the
Parent, the Servicer, any Originator, the Issuer or ALER where Records with
respect to Warehouse Collateral are maintained or stored: (a) it will permit
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the Third Party Financiers and the Indenture Trustee (or their agents, employees
or designees) to enter one or more of such premises at any time during
reasonable business hours, without force or process of law and without
obligation to pay rent or compensation to the OpCo Agent or any of the OpCo
Lenders, whether before, during or after an Enforcement Period, and to have
access to and use of all Records located thereon for the purpose of enforcing
the Indenture Trustee's rights, on behalf of the Third Party Financiers, with
respect to the Warehouse Collateral, and (b) any mortgage of, assignment of,
security interest in or lien upon any real property and interests in real
property of the Parent or any of its Subsidiaries other than ALER or the Issuer
(whether leased or owned) shall be subject to the Third Party Financiers' and
the Indenture Trustee's rights of access and use of the Records described above.
2.6. Accountings. If the OpCo Agent delivers written notice to the
Indenture Trustee and ALS that an OpCo Event of Default has occurred and is
continuing, ALS shall render monthly written statements to the Indenture Trustee
and the OpCo Agent identifying in reasonable detail the Unsold Assets and any
Collections received in respect thereof during the calendar month then most
recently ended.
2.7. Cross Collateralization. (a) An Obligor under a Purchased
Equipment Loan may be, or may become, an Obligor under an Unsold Equipment Loan.
Each Purchased Equipment Loan and each Unsold Equipment Loan is secured by
equipment purchased with the proceeds of such loan. In certain circumstances, a
Purchased Equipment Loan may also purport to be secured by the equipment
purchased with the proceeds of an Unsold Equipment Loan (such equipment and the
proceeds thereof, the "Common Non-Trust Collateral"), and/or an Unsold Equipment
Loan may also purport to be secured by equipment purchased with the proceeds of
a Purchased Equipment Loan (such equipment and the proceeds thereof being the
"Common Trust Collateral"). In addition, in certain circumstances, a Purchased
Equipment Loan and an Unsold Equipment Loan may have competing security
interests in or also purport to be secured by collateral that is neither Common
Trust Collateral nor Common Non-Trust Collateral (the "Common Other
Collateral").
(b) The OpCo Agent 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 Unsold Equipment Loan (and any OpCo Interest therein) is, and
shall be, junior and subordinate to the security interest created to secure a
Purchased Equipment Loan; (ii) it shall not, as assignee of the lien of ALS,
have any legal right to realize upon such Common Trust Collateral or exercise
its rights under the Unsold Equipment Loan with respect to such Common Trust
Collateral in any manner until all required payments in respect of any Purchased
Equipment Loan that shares such Common Trust Collateral have been made in full;
and (iii) in realizing upon such Common Trust Collateral, none of the Indenture
Trustee, ALER, Issuer, nor any Third Party Financier shall have any obligation
to protect or preserve the rights of ALS, the OpCo Agent or the OpCo Lenders in
such Common Trust Collateral. The Indenture Trustee agrees that with respect to
each loan of each such Obligor (i) the security interest in such Common
Non-Trust Collateral granted to ALS to secure the Purchased Equipment Loan (and
any Warehouse Interest therein) is and shall be junior and subordinate to the
security interest therein created by the Unsold Equipment Loan; (ii) it shall
not, as assignee of the lien of ALS, have any legal right to realize upon such
Common Non-Trust Collateral or exercise its rights under the Purchased Equipment
Loan with respect to such Common Non-Trust Collateral in any manner until all
required
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payments in respect of the Unsold Equipment Loan have been made in full; and
(iii) in realizing upon such Common Non-Trust Collateral, none of ALS, the OpCo
Agent or the OpCo Lenders shall have any obligation to protect or preserve the
rights of the Indenture Trustee, ALER, the Issuer or the Third Party Financier
in such Common Non-Trust Collateral. The proceeds of the Common Other Collateral
shall be shared by the holders of the Unsold Equipment Loan and the Purchase
Equipment Loan on a pro rata basis (based on relative outstanding principal
amounts of the Purchased Equipment Loan and Unsold Equipment Loan).
2.8. Non-Petition; Non-Interference. The OpCo Agent agrees for itself and
on behalf of the Opco Lenders that it will not: (i) file a petition in
bankruptcy against ALER or the Issuer until one year and one day after the
Outstanding Obligations shall have been paid in full, (ii) seek to substantively
consolidate ALER or the Issuer in connection with a bankruptcy of the Parent or
any of its Affiliates, (iii) seek to realize on the assets of ALER or the
Issuer, (iv) vote any membership interest in ALER with respect to any matters
without the consent of the Control Party and (v) challenge or contest any
actions by the Indenture Trustee or the Control Party (including, without
limitation, any claims by either against ALER or the Issuer or any of their
respective assets), or assert any claim against such parties in connection with
the exercise by either the Indenture Trustee or the Control Party of any right
or remedy available to it pursuant to the terms of the Basic Documents or the
exercise of any remedies or receipt of any Proceeds from any assets of ALER
following the occurrence of a Rapid Amortization Event or an Event of Default.
2.9. Agency for Perfection. To the fullest extent permitted by applicable
law, the Indenture Trustee and the OpCo Agent hereby appoint each other as third
party bailee with notice and acceptance for purposes of perfecting by possession
their respective security interests and liens on the OpCo Collateral and
Warehouse Collateral described hereunder.
2.10. UCC Notices.
(a) In the event that the Indenture Trustee shall be required by the UCC
or any other applicable law to give notice to the OpCo Agent of any intended
disposition of any Warehouse Collateral, such notice shall be given in
accordance with Section 3.1 hereof and ten (10) days' notice shall be deemed to
be commercially reasonable.
(b) In the event the OpCo Agent shall be required by the UCC or any other
applicable law to give notice to the Indenture Trustee of any intended
disposition of any OpCo Collateral, such notice shall be given in accordance
with Section 3.1 hereof and ten (10) days' notice shall be deemed to be
commercially reasonable.
2.11. Independent Credit Investigations. None of the Third Party
Financiers, the Indenture Trustee, the OpCo Lenders or the OpCo Agent or any of
their respective directors, officers, agents or employees shall be responsible
to the other or to any other person, firm or corporation for the solvency,
financial condition or ability of the Issuer, ALER, the Parent, ALC, any
Originator or its Subsidiaries to repay the Outstanding Obligations or the OpCo
Claim, or for the worth of the Warehouse Collateral or the OpCo Collateral, or
for statements of the Originators, ALER, the Issuer or the Parent or its
Subsidiaries, oral or written, or for the validity, sufficiency or
enforceability of the Outstanding Obligations, the OpCo Claim, the Basic
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Documents, the OpCo Loan Documents, the Indenture Trustee's interest in the
Warehouse Collateral or the OpCo Agent's interest in the OpCo Collateral. The
OpCo Lenders and the Third Party Financiers have entered into their respective
agreements with the Parent and/or its applicable Subsidiaries based upon their
own independent investigations. None of the Third Party Financiers, the
Indenture Trustee, the OpCo Lenders or the OpCo Agent makes any warranty or
representation to the other nor does it rely upon any representation of the
other with respect to matters identified or referred to in this Section 2.11.
2.12. Limitation on Liability of Parties to Each Other. Except as otherwise
expressly provided in this Agreement, neither party shall have any liability to
any other party except for liability arising from the gross negligence or
willful misconduct of such party or its representatives.
2.13. Amendments to Financing Arrangements or to this Agreement. The OpCo
Agent agrees to use reasonable efforts to give prompt notice to the Indenture
Trustee of any written amendment or modification in the OpCo Loan Documents and
the Indenture Trustee agrees to use reasonable efforts to give prompt notice to
the OpCo Agent of any written amendment or modification in the Basic Documents
(including, without limitation, the addition of any Originator to the Purchase
Agreement besides ALS); provided, however, that the failure to do so shall not
create a cause of action against any party failing to give such notice or create
any claim or right on behalf of any third party or affect any such amendment or
modification. All modifications or amendments of this Agreement must be in
writing and duly executed by an authorized officer of each party hereto to be
binding and enforceable.
2.14. Marshalling of Assets. Nothing in this Agreement will be deemed to
require the Indenture Trustee (i) to proceed against any property securing the
Outstanding Obligations (or any other obligation or liability under the Basic
Documents) prior to proceeding against other property securing such Claim or
obligations or liabilities or against certain persons guaranteeing any such
obligations or (ii) to marshal the Warehouse Collateral upon the enforcement of
the Indenture Trustee's remedies under the Basic Documents. Nothing in this
Agreement will be deemed to require the OpCo Agent (i) to proceed against any
property securing the OpCo Claim (or any other obligation or liability under the
OpCo Loan Documents) prior to proceeding against other property securing such
Claim or obligations or liabilities or against certain persons guaranteeing any
such obligations or (ii) to marshal the OpCo Collateral upon the enforcement of
the OpCo Agent's remedies under the OpCo Loan Documents.
2.15. Relative Rights. The OpCo Agent and the OpCo Lenders shall be
entitled to rely on the power and authority of the Indenture Trustee to act on
behalf of its principals to the extent the provisions hereof have the Indenture
Trustee so act, and the Indenture Trustee and the Third Party Financiers shall
be entitled to rely on the power and authority of the OpCo Agent to act on
behalf of its principals to the extent the provisions hereof have the OpCo Agent
so act.
2.16. Effect Upon OpCo Loan Documents and Basic Documents. Each of the
Indenture Trustee and the OpCo Agent agrees that, as between themselves and
their respective constituents, to the extent the terms and provisions of the
OpCo Loan Documents or the Basic Documents are inconsistent with the terms and
provisions of this Agreement, the terms and provisions of this Agreement shall
control.
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2.17. Nature of the OpCo Claim and Modification of the OpCo Loan Documents.
The Indenture Trustee, on behalf of the Third Party Financiers, acknowledges
that the OpCo Claim and other obligations and liabilities owing under the OpCo
Loan Documents are, in part, revolving in nature and that the amount of such
revolving indebtedness which may be outstanding at any time or from time to time
may be increased or reduced and subsequently reborrowed. The terms of the OpCo
Loan Documents may be modified, extended or amended from time to time, and the
amount thereof may be increased or reduced, all without notice to or consent by
any of the Third Party Financiers or the Indenture Trustee and without affecting
the provisions of this Agreement. Without in any way limiting the foregoing, the
Indenture Trustee, on behalf of the Third Party Financiers, hereby agrees that
the maximum amount of OpCo Claim and other obligations and liabilities owing
under the OpCo Loan Documents may be increased at any time and from time to time
to any amount.
2.18. Nature of the Outstanding Obligations and Modification of Basic
Documents. The OpCo Agent, on behalf of the OpCo Lenders, acknowledges that the
Outstanding Obligations and other obligations and liabilities owing under the
Basic Documents are, in part, revolving in nature and that the amount of such
revolving obligations which may be outstanding at any time or from time to time
may be increased or reduced and subsequently reincurred. The terms of the Basic
Documents may be modified, extended or amended from time to time, and the amount
thereof may be increased or reduced, all without notice to or consent by the
OpCo Agent or the OpCo Lenders and without affecting the provisions of this
Agreement. Without in any way limiting the foregoing, the OpCo Agent, on behalf
of the OpCo Lenders, hereby agrees that the maximum amount of Outstanding
Obligations and other obligations and liabilities owing under the Basic
Documents may be increased at any time and from time to time to any amount.
2.19. Further Assurances; Adding Parties. Each of the parties agrees to
take such actions as may be reasonably requested by any other party, whether
before, during or after a Enforcement, in order to effect the rules of
distribution and allocation set forth above in this Article 2 and to otherwise
effectuate the agreements made in this Article. In addition, in the event any
Originator other than ALS is added to the Purchase Agreement, ALS agrees to
require such new Originator to become a party hereto prior to or simultaneously
with its addition to the Purchase Agreement, and in the event any additional
Subsidiaries of the Parent become guarantors under the OpCo Loan Documents, ALS
agrees to require such new guarantor to become a party hereto prior to or
simultaneously with its addition to the Guarantee and Collateral Agreement.
2.20. True Sale. The OpCo Agent, on behalf of the OpCo Lenders, agrees that
it will not seek to challenge the characterization of the transfers of Warehouse
Collateral pursuant to the Purchase Agreement as being true sales or other
absolute conveyances thereof.
2.21. Acknowledgement. The OpCo Agent agrees that the provisions of Section
5.1(k) of the Purchase Agreement will not violate Section 5.9(a)(v) of the
Guarantee and Collateral Agreement.
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ARTICLE 3. MISCELLANEOUS
3.1. Amendments. This Agreement may be amended or modified from time to
time only by written instrument by the parties hereto and any such amendment or
modification shall be subject to the written consent of the Control Party.
3.2. Notices. All notices and other communications provided for hereunder
shall, unless otherwise stated herein, be in writing (including
telecommunications and communication by facsimile copy) and mailed, transmitted
or delivered, as to each party hereto, at its address set forth under its name
on the signature pages hereof or at such other address as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be effective upon receipt, or, in the case of notice by
mail, five (5) days after being deposited in the mails, postage prepaid, or in
the case of notice by facsimile copy, when verbal confirmation of receipt is
obtained, in each case addressed as aforesaid; provided, however, that with
respect to any notices and other communications required to be delivered to the
Indenture Trustee hereunder, all such notices and communication shall also be
required to include a copy to be delivered concurrently to the Control Party.
3.3. Agreement Absolute. Each of the Third Party Financiers and the
Indenture Trustee shall be deemed to have entered into the Basic Documents in
express reliance upon this Agreement. This Agreement shall be and remain
absolute and unconditional under any and all circumstances, and no acts or
omissions on the part of any party to this Agreement shall affect or impair the
agreement of any party to this Agreement, unless otherwise agreed to in writing
by all of the parties hereto. This Agreement shall be applicable both before and
after the filing of any petition by or against the Parent or any of its
Subsidiaries, Originators, ALER or the Issuer under the Bankruptcy Code and all
references herein to the Parent or any of its Subsidiaries, Originators, ALER or
the Issuer shall be deemed to apply to a debtor-in-possession for such party and
all allocations of payments between the OpCo Agent, the OpCo Lenders, the Third
Party Financiers and the Indenture Trustee shall, subject to any court order to
the contrary, continue to be made after the filing of such petition on the same
basis that the payments were to be applied prior to the date of the petition.
3.4. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors and
assigns. The successors and assigns for the Parent and its Subsidiaries shall
include a debtor-in-possession or trustee of or for such party. The successors
and assigns for the OpCo Lenders, the OpCo Agent, the Third Party Financiers or
the Indenture Trustee, as the case may be, shall include any successor OpCo
Lender, OpCo Agent, Third Party Financier or the Indenture Trustee, as the case
may be, appointed under the terms of the OpCo Loan Documents or the Basic
Documents, as applicable. Each of the OpCo Agent and the Indenture Trustee
agrees not to transfer any interest it may have in the OpCo Loan Documents or
the Basic Documents, as applicable, unless such transferee has been notified of
the existence of this Agreement and has agreed to be bound hereby. In the event
that the financing provided under the OpCo Credit Agreement shall be refinanced,
replaced or refunded, the Parent, ALC, the Originators, the Servicer, ALER, the
Issuer, the Third Party Financiers, the OpCo Agent and the Indenture Trustee
hereby agree, at the request of the Indenture Trustee or lenders under the
credit facility that so refinances, replaces or refunds the financing under the
OpCo Credit Agreement, to execute and deliver a new intercreditor
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agreement with such agent and/or lenders on substantially the same terms as
herein provided. In the event that the financing provided under the Basic
Documents shall be refinanced, replaced or refunded, the OpCo Agent hereby
agrees, at the request of the agent or lenders under the facility that so
refinances, replaces or refunds the financing under the Basic Documents, to
execute and deliver a new intercreditor agreement with such agent and/or lender
on substantially the same terms as herein provided.
3.5. Beneficiaries. The terms and provisions of this Agreement shall be
for the sole benefit of the parties hereto, the OpCo Lenders, the Third Party
Financiers, ALS, ALER, the Issuer and each of their respective successors and
assigns, and no other Person shall have any right, benefit, or priority by
reason of this Agreement.
3.6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
3.7. Waiver of Jury Trial. Each of the parties hereto hereby waives its
respective rights to a jury trial of any action or proceeding arising out of or
relating to this Agreement. This waiver is irrevocable and may not be modified
either orally or in writing (other than by a mutual written waiver specifically
referencing this section executed by all of the parties hereto).
3.8. Section Titles. The article and section headings contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
3.9. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
3.10. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement.
3.11. No Recourse as to Owner Trustee. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Wilmington Trust Company, not individually or personally but solely as
trustee of the Issuer, in the exercise of the powers and authority conferred and
vested in it, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but is
made and intended for the purpose of binding only the Issuer, (c) nothing herein
contained shall be construed as creating any liability on Wilmington Trust
Company, individually or personally, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being expressly waived by
the parties hereto and by any Person claiming by, through or under the parties
hereto and (d)
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under no circumstances shall Wilmington Trust Company be personally liable for
the payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Agreement or any other related documents.
3.12. No Recourse as to Indenture Trustee. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by The Bank of New York, not individually or personally but solely as indenture
trustee under the Indenture and the Basic Documents, in the exercise of the
powers and authority conferred and vested in it and (b) nothing herein contained
shall be construed as creating any liability on The Bank of New York,
individually or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereto and by any Person claiming by, through or under the parties
hereto.
[signature pages follow]
15
IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
GENERAL ELECTRIC CAPITAL CORPORATION,
as OpCo Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Its Duly Authorized Signatory
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signature Page to Intercreditor Agreement]
THE BANK OF NEW YORK, as Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset-Backed Unit
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signature Page to Intercreditor Agreement]
By its respective signature below: (i) each of the undersigned agrees that, upon
receipt of an Enforcement Notice, it will be bound by the provisions of Section
2.1 with the same force and effect as if it were a direct signatory hereto, (ii)
each of the Parent, ALC and the Originators agrees to be bound by the provisions
of the second sentence of Section 2.19 of this Agreement with the same force and
effect as if it were a direct signatory hereto, (iii) so long as Parent or any
of its Subsidiaries is acting as the Servicer, each of the undersigned agrees
that it will prepare, or cause the Servicer to prepare, the monthly reports
required under Section 2.6 upon request of the Indenture Trustee or the OpCo
Agent, and (iv) from and after delivery by the OpCo Agent of notice of an OpCo
Event of Default pursuant to Section 2.6, each of the Parent, ALC and the
Originators will establish one or more OpCo Lockbox Accounts in the name of ALS
but subject to a first priority perfected security interest in favor of the OpCo
Agent into which only the proceeds of OpCo Collateral and Dispositions thereof
are deposited.
ALLIANCE LAUNDRY HOLDINGS LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: V.P., CFO and Treasurer
ALLIANCE LAUNDRY SYSTEMS LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: V.P., CFO and Treasurer
ALLIANCE LAUNDRY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: V.P., CFO
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES 2002 LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: V.P., CFO and Treasurer
[Signature Page to Intercreditor Agreement]
ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES TRUST 2002-A
By: Wilmington Trust Company, not in its individual capacity,
but solely as owner trustee
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
[Signature Page to Intercreditor Agreement]
