Exhibit 10.6
ADMINISTRATION AGREEMENT
AMONG
ALLIANCE LAUNDRY EQUIPMENT
RECEIVABLES TRUST 2009-A
AND
ALLIANCE LAUNDRY SYSTEMS
LLC
AND
THE BANK OF NEW YORK
MELLON
Dated as of June 26,
2009
ADMINISTRATION AGREEMENT, dated as
of June 26, 2009 among ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES
TRUST 2009-A, a Delaware statutory trust (the “ Issuer
”), ALLIANCE LAUNDRY SYSTEMS LLC, a Delaware limited
liability company, as administrator (the “
Administrator ”), and THE BANK OF NEW YORK MELLON, a
New York banking corporation, not in its individual capacity but
solely as Indenture Trustee (the “ Indenture Trustee
”).
W I T N E S S E T H:
WHEREAS, the Issuer is issuing Notes
pursuant to an Indenture, dated as of June 26, 2009 (as
amended and supplemented from time to time, the “
Indenture ”), between the Issuer and the Indenture
Trustee;
WHEREAS, the Issuer has entered into
(or assumed) certain agreements in connection with the issuance of
the Notes, including (i) the Pooling and Servicing Agreement
and (ii) the Indenture;
WHEREAS, pursuant to the Basic
Documents, the Issuer and Wilmington Trust Company, as Owner
Trustee, are required to perform certain duties in connection with
the Notes and the Trust Estate;
WHEREAS, the Issuer and the Owner
Trustee desire to have the Administrator perform certain of the
duties of the Issuer and the Owner Trustee referred to in the
preceding clause, and to provide such additional services
consistent with the terms of this Agreement and the Basic Documents
as the Issuer and the Owner Trustee may from time to time
request;
WHEREAS, the Administrator has the
capacity to provide the services required hereby and is willing to
perform such services for the Issuer and the Owner Trustee on the
terms set forth herein;
NOW, THEREFORE, in consideration of
the premises and the mutual covenants herein contained, the parties
agree as follows:
1. Certain Definitions .
Capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned them in Part I of
Appendix A to the Pooling and Servicing Agreement of even date
herewith among the Issuer, Alliance Laundry Equipment Receivables
2009 LLC, as Transferor, and Alliance Laundry Systems LLC, as
Servicer and Originator (as it may be amended, supplemented or
modified from time to time, the “ Pooling and Servicing
Agreement ”). All references herein to “the
Agreement” or “this Agreement” are to this
Administration Agreement as it may be amended, supplemented or
modified from time to time, the exhibits hereto and the capitalized
terms used herein which are defined in such Appendix A, and
all references herein to Sections and subsections are to 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.
2. Duties of the
Administrator .
(a) Duties with Respect to the
Indenture . The Administrator agrees to perform all of its
duties as Administrator and the duties of the Issuer and the Owner
Trustee under the Indenture and the Administrator shall consult
with the Issuer and Owner Trustee in connection herewith. The
Administrator shall monitor the performance of the Issuer and shall
advise the Owner Trustee when action is necessary to comply with
the duties of the Issuer and the Owner Trustee under the Indenture.
The Administrator shall prepare for execution by the Issuer or the
Owner Trustee or shall cause the preparation by other appropriate
persons of all such documents, reports, filings, instruments,
certificates, notices and opinions as shall be the duty of the
Issuer or the Owner Trustee, as applicable, to prepare, file or
deliver pursuant to the Indenture. In furtherance of the foregoing,
the Administrator shall take all appropriate action that it is the
duty of the Issuer or the Owner Trustee to take pursuant to the
Indenture including such of the foregoing as are required with
respect to the following matters under the Indenture (references
are to sections of the Indenture):
(1) the preparation of or obtaining
of the documents and instruments required for authentication of the
Notes and delivery of the same to the Indenture Trustee pursuant to
Section 2.2;
(2) causing the Note Register to be
kept and giving the Indenture Trustee notice of any appointment of
a new Note Registrar and the location, or change in location, of
the Note Register pursuant to Section 2.4;
(3) the notification of Noteholders
of the final principal payment on their Notes pursuant to
Section 2.7(c);
(4) the preparation, obtaining or
filing of the instruments, opinions and certificates and other
documents required for the release of collateral pursuant to
Section 2.9;
(5) the maintenance of an office in
the Borough of Manhattan, the City of New York, for registration of
transfer or exchange of Notes pursuant to
Section 3.2;
(6) the direction to the Indenture
Trustee to deposit monies with Paying Agents, if any, other than
the Indenture Trustee pursuant to Section 3.3(b);
(7) causing newly appointed Paying
Agents, if any, to deliver to the Indenture Trustee the instrument
specified in the Indenture regarding funds held in trust pursuant
to Section 3.3(b);
(8) the obtaining and preservation
of the Issuer’s qualification to do business in each
jurisdiction in which such qualification is or shall be necessary
to protect the validity and enforceability of the Indenture, the
Notes, the Trust Estate and each other instrument and agreement
included in the Trust Estate pursuant to
Section 3.4;
(9) the preparation of all
supplements, amendments, financing statements, continuation
statements, instruments of further assurance and other instruments,
in accordance with Section 3.5, necessary to protect the Trust
Estate;
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(10) the delivery of the Opinion of
Counsel on the Closing Date, in accordance with
Section 3.6(a), as to the Trust Estate, and the annual
delivery of the Opinion of Counsel, the Officer’s Certificate
and certain other statements, in accordance with Sections 3.6(b)
and 3.9, as to compliance with the Indenture;
(11) the identification to the
Indenture Trustee in an Officer’s Certificate of a Person
with whom the Issuer has contracted to perform its duties under the
Indenture pursuant to Section 3.7(b);
(12) the notification of the
Indenture Trustee, the Administrative Agent and the Rating Agencies
of a Servicer Default and, if such Servicer Default arises from the
failure of the Servicer to perform any of its duties under the
Pooling and Servicing Agreement, the taking of all reasonable steps
available to remedy such failure pursuant to
Section 3.7(d);
(13) the preparation and obtaining
of documents and instruments required for the release of the Issuer
from its obligations under the Indenture pursuant to
Section 3.11(b);
(14) the delivery of notice to the
Indenture Trustee, the Administrative Agent and the Rating
Agencies, of each Default, Event of Default, Rapid Amortization
Event, Servicer Default and default by the Transferor and ALS of
their respective obligations under the Pooling and Servicing
Agreement and the Purchase Agreement pursuant to
Section 3.19;
(15) the compliance with any written
directive of the Indenture Trustee with respect to the sale of the
Trust Estate in a commercially reasonable manner if an Event of
Default shall have occurred and be continuing pursuant to
Section 5.4;
(16) the preparation and delivery of
notice to Noteholders of the removal of the Indenture Trustee and
the appointment of a successor Indenture Trustee pursuant to
Section 6.8;
(17) the preparation of any written
instruments required to confirm more fully the authority of any
co-trustee or separate trustee and any written instruments
necessary in connection with the resignation or removal of any
co-trustee or separate trustee pursuant to Sections 6.8 and
6.10;
(18) the furnishing of the Indenture
Trustee with the names and addresses of Noteholders during any
period when the Indenture Trustee is not the Note Registrar
pursuant to Section 7.1;
(19) the preparation of an Issuer
Request and Officer’s Certificate and the obtaining of an
Opinion of Counsel and Independent Certificates, if necessary, for
the release of the Trust Estate pursuant to Sections 8.4 and
8.5;
(20) the preparation of Issuer
Orders and the obtaining of Opinions of Counsel with respect to the
execution of amendments or waivers and, if applicable, the mailing
to the Noteholders of notices with respect to such amendments or
waivers pursuant to Sections 9.1, 9.2 and 9.3;
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(21) the execution and delivery of
new Notes conforming to any amendment pursuant to
Section 9.6;
(22) the notification of Noteholders
and the Rating Agencies of redemption of the Notes or the duty to
cause the Indenture Trustee to provide such notification pursuant
to Sections 10.1 and 10.2;
(23) the monitoring of the
Issuer’s obligations as to the satisfaction and discharge of
the Indenture and the preparation of an Officer’s Certificate
and the obtaining of the Opinion of Counsel and the Independent
Certificate, if necessary, relating thereto pursuant to
Section 11.1;
(24) the preparation of all
Officer’s Certificates and Opinions of Counsel with respect
to any requests by the Issuer to the Indenture Trustee to take any
action under the Indenture pursuant to
Section 12.1(a);
(25) the preparation and delivery of
Officer’s Certificates and the obtaining of Independent
Certificates, if necessary, for the release of property from the
lien of the Indenture pursuant to Section 12.1(b);
(26) the notice or other
communication to the Noteholders, the Administrative Agent and the
Rating Agencies, as applicable, upon the failure of the Indenture
Trustee to give such notice or other communication pursuant to
Section 12.4;
(27) the preparation and delivery to
Noteholders and the Indenture Trustee of any agreements with
respect to alternate payment and notice provisions pursuant to
Section 12.6; and
(28) the recording of the Indenture,
if applicable, pursuant to Section 12.15.
(b) Indemnity . In addition,
the Administrator will indemnify the Owner Trustee and its agents
for, and hold them harmless against, any losses, liability or
expense incurred without gross negligence or bad faith on their
part, arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Trust
Agreement, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties under the
Trust Agreement.
(c) Additional Duties
.
(1) In addition to the duties of the
Administrator set forth above, the Administrator shall perform such
calculations and shall prepare for execution by the Issuer or the
Owner Trustee or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments,
certificates, notices and opinions as it shall be the duty of the
Issuer or the Owner Trustee to prepare, file or deliver pursuant
to
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the Basic Documents, and at the
request of the Owner Trustee shall take all appropriate action that
it is the duty of the Issuer or the Owner Trustee to take pursuant
to the Basic Documents. Subject to Section 7 of this
Agreement, and in accordance with the directions of the Owner
Trustee, the Administrator shall administer, perform or supervise
the performance of such other activities in connection with the
Trust Estate (including the Basic Documents) as are not covered by
any of the foregoing provisions and as are expressly requested by
the Owner Trustee and are reasonably within the capability of the
Administrator.
(2) Notwithstanding anything in this
Agreement or the Basic Documents to the contrary, the Administrator
shall be responsible for promptly notifying the Owner Trustee if
any withholding tax is imposed on the Trust’s payments to a
Registered Owner as contemplated in Section 5.1(d) of the
Trust Agreement. Any such notice shall specify the amount of any
withholding tax required to be withheld by the Owner Trustee
pursuant to such provision.
(3) Notwithstanding anything in this
Agreement or the Basic Documents to the contrary, the Administrator
shall be responsible for performance of the duties of the Owner
Trustee set forth in the Trust Agreement with respect to, among
other things, tax return preparation, accounting and reports to the
beneficial owners and notices to the Rating Agencies, the
Administrative Agent, the Noteholders and the Indenture
Trustee.
(4) The Administrator may satisfy
any obligations it may have with respect to clauses (2) and
(3) above by retaining, at the expense of the Administrator, a
firm of independent public accountants acceptable to the Owner
Trustee which shall perform the obligations of the Administrator
thereunder. If a withholding tax specified in the previous clause
(2) is due, such accountants or the Administrator shall
provide the Owner Trustee with a letter specifying which
withholding tax specified in the preceding clause (2) is then
required and specifying the procedures to be followed to comply
with the Code thirty days before such tax is to be withheld. Such
accountants or the Administrator shall update such letter if and to
the extent it shall no longer be accurate.
(5) The Administrator shall perform
the duties of the Administrator specified in Section 6.10 of
the Trust Agreement required to be performed in connection with the
resignation or removal of the Owner Trustee, and any other duties
expressly required to be performed by the Administrator under the
Trust Agreement.
(6) In carrying out the foregoing
duties or any of its other obligations under this Agreement, the
Administrator may enter into transactions
