NOTE PURCHASE AGREEMENT

Exhibit 10.4

 

NOTE PURCHASE AGREEMENT

Dated as of June 26, 2009

among

ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES TRUST 2009-A,

Issuer,

ALLIANCE LAUNDRY SYSTEMS LLC,

as the Servicer,

ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES 2009 LLC,

as the Transferor,

THE NOTE PURCHASERS PARTY HERETO,

NATIXIS FINANCIAL PRODUCTS INC.,

as Administrative Agent and an Agent

and

THE OTHER AGENTS PARTY HERETO

 

Relating to

Alliance Laundry Equipment Receivables Trust 2009-A

Equipment Loan Notes

Receivables Notes

 

 

TABLE OF CONTENTS

 

 

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TABLE OF CONTENTS

(continued)

 

 

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NOTE PURCHASE AGREEMENT, dated as of June 26, 2009, by and among ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES TRUST 2009-A, a Delaware statutory trust (together with its successors and assigns, the “ Issuer ”), ALLIANCE LAUNDRY SYSTEMS LLC, a Delaware limited liability company (“ ALS ”), individually and as the Servicer, ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES 2009 LLC, a Delaware limited liability company (“ Alliance Equipment Receivables ”), as the Transferor (the “ Transferor ”), the NOTE PURCHASERS (as hereinafter defined) from time to time party hereto, the AGENTS for the Purchaser Groups from time to time party hereto (each such party, together with their respective successors in such capacity, an “ Agent ”), and NATIXIS FINANCIAL PRODUCTS INC. (“ NATIXIS ”), as administrative agent for the Note Purchasers (the “ Administrative Agent ”).

W I T N E S S E T H:

WHEREAS, the Issuer, the Servicer and the Transferor are parties to that certain Pooling and Servicing Agreement, dated as of June 26, 2009 (as the same may from time to time be amended or otherwise modified, the “ Pooling and Servicing Agreement ”), pursuant to which, among other things, the Transferor has assigned, transferred and conveyed, and has agreed to assign, transfer and convey, its right, title and interest in, to and under certain Equipment Loans and Receivables (as defined therein) to the Issuer, and the Servicer has agreed to service such Equipment Loans and Receivables;

WHEREAS, the Issuer and The Bank of New York Mellon, as trustee (together with its successors in such capacity, the “ Indenture Trustee ”), are parties to that certain Indenture, dated as of June 26, 2009 (as the same may from time to time be amended or otherwise modified, the “ Indenture ”);

WHEREAS, the Issuer proposes to issue its Equipment Loan Notes (the “ Equipment Loan Notes ”) pursuant to the Indenture;

WHEREAS, the Issuer also proposes to issue its Receivables Notes (the “ Receivables Notes ”) pursuant to the Indenture;

WHEREAS, the Equipment Loan Note Purchasers are willing to purchase the Equipment Loan Notes in the amount of the Equipment Loan Initial Advance on the Closing Date and from time to time thereafter to purchase Equipment Loan Advance Increases on the terms and conditions provided for herein;

WHEREAS, the Receivables Note Purchasers are willing to purchase the Receivables Notes in the amount of the Receivables Initial Advance on the Closing Date and from time to time thereafter to purchase Receivables Advance Increases on the terms and conditions provided for herein;

NOW THEREFORE, in consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby expressly acknowledged, the parties hereto agree as follows:

ARTICLE 1 DEFINITIONS

1.1 Definitions . All capitalized terms used herein as defined terms and not defined herein shall have the meanings given to them in Part I of Appendix A to the Pooling and Servicing Agreement, as in effect on the date of this Agreement and as they may be amended or otherwise modified from time to time with the consent of the Required Equipment Loan Note Owners, the Required Equipment Loan Note Purchasers, the Required Receivables Note Owners, the Required Receivables Note Purchasers and the Administrative Agent.

“ Accounting Based Consolidation Event ” means the consolidation, for financial and/or regulatory accounting purposes, of all or any portion of the assets and liabilities of a CP Conduit that are subject to this Agreement or any other Basic Document with all or any portion of the assets and liabilities of an Affected Party. An Accounting Based Consolidation Event shall be deemed to occur on the date any Affected Party shall acknowledge in writing that any such consolidation of the assets and liabilities of a CP Conduit shall occur.

“ Additional Amounts ” shall mean on any date of determination, any amounts then due and payable by the Issuer (determined without regard to limitations on the sources of payment thereof) pursuant to this Agreement, other than Equipment Loan Monthly Interest, the Equipment Loan Note Principal Balance, Receivables Monthly Interest and the Receivables Note Principal Balance.

“ Adjusted Commitment ” shall mean on any date of determination, (i) with respect to a CPC Committed Purchaser, such CPC Committed Purchaser’s Commitment minus the aggregate outstanding principal amount of its Support Advances to its related CP Conduit or (ii) with respect to a Committed Purchaser that is not a CPC Committed Purchaser, such Committed Purchaser’s Commitment.

“ Administrative Agent ” has the meaning specified in the preamble to this Agreement.

“ Advance Increase Notice ” shall mean a notice delivered by the Issuer to each Agent and the Indenture Trustee pursuant to Section 2.1(c) requesting an Equipment Loan Advance Increase or a Receivables Advance Increase with the most recently delivered Borrowing Base Certificate attached thereto.

“ Affected Party ” shall mean, with respect to any CP Conduit, any Support Party of such CP Conduit.

“ Affiliate Conduit Assignee ” means a commercial paper conduit which is administered by the same Agent or supported by the same Support Party as the CP Conduit that from time to time designates such commercial paper conduit to accept an assignment from such CP Conduit of all or a portion of its Percentage Interest.

“ Agent ” has the meaning specified in the preamble to this Agreement.

“ Agreement ” shall mean this Note Purchase Agreement, as amended, supplemented or otherwise modified from time to time.

 

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“ Alliance Equipment Receivables ” has the meaning specified in the preamble to this Agreement.

“ ALS ” has the meaning specified in the preamble to this Agreement.

“ Applicable Margin Fee Letter ” has the meaning specified in the Pooling and Servicing Agreement.

“ Assignee ” and “ Assignment ” have the respective meanings specified in Section 7.1(e) .

“ BMO ” shall mean BMO Capital Markets Corp.

“ Cap Strike Rate ” shall mean 6.27%.

“ Closing Date ” shall mean June 26, 2009.

“ Code ” shall mean the Internal Revenue Code of 1986, as amended.

“ Commitment ” shall mean, for any Committed Purchaser, the maximum amount of such Note Purchaser’s commitment to purchase a portion of the Equipment Loan Note Principal Balance or Receivables Note Principal Balance, as applicable, as set forth on the signature pages hereto or the Transfer Supplement by which such Committed Purchaser became a party to this Agreement or assumed the Commitment (or a portion thereof) of another Note Purchaser pursuant to Transfer Supplement(s) executed by such Purchaser and its Assignee(s) and delivered pursuant to Section 7.1 . In the event that a Note Purchaser is a CPC Committed Purchaser which maintains a portion of its Commitment hereunder in relation to more than one CP Conduit, such Note Purchaser shall be deemed to hold separate Commitments hereunder in each such capacity, and in the event that a Note Purchaser is both an Equipment Loan Note Purchaser and a Receivables Note Purchaser, such Note Purchaser shall be deemed to hold separate Commitments hereunder in each such capacity.

“ Committed Purchaser ” shall mean each Note Purchaser identified as a Committed Purchaser on the signature pages hereto or in the Transfer Supplement pursuant to which such Note Purchaser, and any Assignee of such Note Purchaser to the extent such Assignee has assumed, pursuant to a Transfer Supplement, the Commitment of such Note Purchaser.

“ Conduit Assignee ” means any commercial paper conduit designated by a CP Conduit from time to time to accept an assignment from such CP Conduit of all or a portion of its Percentage Interest.

“ Consented Transferee Letter ” shall mean the letter, dated as of the date of this Agreement and referring to this Agreement (or any replacement therefor from time to time in effect), from the Transferor, and to and accepted by, the Administrative Agent, as such letter may be amended or otherwise modified from time to time by the Transferor with the consent of the Administrative Agent.

 

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“ CP Conduit ” shall mean any Note Purchaser which is designated as a CP Conduit on the signature pages hereto or in the Transfer Supplement pursuant to which it became a party to this Agreement.

“ CPC Committed Purchaser ” shall mean, with respect to a CP Conduit, each Note Purchaser identified as a Committed Purchaser for such CP Conduit on the signature pages hereto or in the Transfer Supplement pursuant to which such CP Conduit became a party hereto, and any Assignee of such Note Purchaser to the extent such Assignee has assumed, pursuant to a Transfer Supplement, the Commitment of such Note Purchaser.

“ Downgrade Event ” shall mean, (i) a notice delivered to the Agents or the Note Purchasers by Standard & Poor’s that the Notes have been or will be placed on a watch list or have or will become subject to a ratings downgrade, or (ii) with respect to any applicable CP Conduit, a notice delivered to the Agents or the Note Purchasers by Standard & Poor’s or Moody’s that any such CP Conduit’s rating has or will be placed on a watch list or has or will become subject to a ratings downgrade solely as a result of such CP Conduit’s ownership of the Notes.

“ Downgraded Purchaser ” has the meaning specified in Section 7.1(j) .

“ Equipment Loan Advance Increase ” shall mean the amount of each Advance made on the Equipment Loan Notes on each Equipment Loan Borrowing Date.

“ Equipment Loan Borrowing Date ” shall mean each date on which an Equipment Loan Advance Increase occurs.

“ Equipment Loan Facility Limit ” shall mean, for any day, $330,000,000, minus the Receivables Note Principal Balance on such day.

“ Equipment Loan Initial Advance ” shall mean the amount of the Advance made on the Equipment Loan Notes on the Closing Date.

“ Equipment Loan Monthly Interest ” shall mean, for any Distribution Date, the Equipment Loan Monthly Interest and Fees for the Interest Period ended on the day preceding such Distribution Date.

“ Equipment Loan Monthly Interest and Fees ” shall mean, for any Interest Period, the sum of (i) interest on the Equipment Loan Note Principal Balance for the Interest Period ended on such Distribution Date computed pursuant to Section 2.2(a) and Section 2.2(e) , plus (ii) the Equipment Loan Unused Facility Fee with respect to such Interest Period.

“ Equipment Loan Note Owners ” shall mean the Equipment Loan Note Purchasers that are owners of record of the Equipment Loan Notes or, with respect to any Equipment Loan Note held by an Agent hereunder as nominee on behalf of Equipment Loan Note Purchasers in an Equipment Loan Purchaser Group, the Equipment Loan Note Purchasers that are beneficial owners of such Equipment Loan Note as reflected on the books of such Agent in accordance with this Agreement and the Related Documents.

 

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“ Equipment Loan Note Principal Balance ” shall mean the outstanding principal balance of all Advances made on the Equipment Loan Notes.

“ Equipment Loan Note Purchasers ” shall mean, collectively, the CP Conduits and the Committed Purchasers that are members of an Equipment Loan Purchaser Group.

“ Equipment Loan Notes ” has the meaning specified in the recitals to this Agreement.

“ Equipment Loan Percentage Interest ” shall mean, for an Equipment Loan Note Purchaser on any day, the percentage equivalent of (a) the sum of (i) the portion of the Equipment Loan Initial Principal Balance (if any) purchased by such Equipment Loan Note Purchaser, plus (ii) the aggregate portion of Equipment Loan Advance Increases (if any) purchased by such Equipment Loan Note Purchaser prior to such day pursuant to this Agreement, plus (iii) any portion of the Equipment Loan Note Principal Balance acquired by such Equipment Loan Note Purchaser as an Assignee from another Equipment Loan Note Purchaser pursuant to a Transfer Supplement executed and delivered pursuant to Section 7.1 , minus (iv) the aggregate amount of principal payments made with respect to the Equipment Loan Notes to such Equipment Loan Note Purchaser prior to such day, minus (v) any portion of the Equipment Loan Note Principal Balance assigned by such Equipment Loan Note Purchaser to an Assignee pursuant to a Transfer Supplement executed and delivered pursuant to Section 7.1 , divided by (b) the aggregate Equipment Loan Note Principal Balance on such day.

“ Equipment Loan Purchaser Group ” shall mean each group of Equipment Loan Note Purchasers consisting of at least one Committed Purchaser and an Agent. Purchaser Groups may also contain a CP Conduit. The initial Equipment Loan Note Purchaser Groups shall be (i) Versailles Assets LLC, as a CP Conduit and as a Committed Purchaser, and Natixis, as Agent, (ii) Fairway Finance Company, LLC, as a CP Conduit and as a Committed Purchaser, and BMO, as Agent and (iii) Liberty Street Funding LLC, as a CP Conduit, and Scotia, as a Committed Purchaser and Agent.

“ Equipment Loan Unused Facility Fee ” shall have the meaning, with respect to each Equipment Loan Purchaser Group, specified in the Applicable Margin Fee Letter.

“ Excess Funds ” has the meaning specified in Section 8.15 .

“ Excluded Taxes ” has the meaning specified in Section 2.4(a) .

“ Governmental Authority ” shall mean any nation or government, any state or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any accounting board or authority (whether or not a part of government) which is responsible for the establishment or interpretation of national or international accounting principles.

“ Indemnitee ” has the meaning specified in Section 2.5(a) .

“ Indenture ” has the meaning specified in the recitals to this Agreement.

 

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“ Indenture Trustee ” has the meaning specified in the recitals to this Agreement.

“ Interest Period ” shall mean the period commencing on each Determination Date and ending on the day prior to the subsequent Determination Date; provided that the initial Interest Period will be the period commencing on the Closing Date and ending on the day prior to the first Determination Date and the final Interest Period will end on the date when all Outstanding Obligations are paid in full.

“ Investing Office ” shall mean initially, the office of any Note Purchaser (if any) designated as such on the signature pages hereto or in the Transfer Supplement by which it became a party to this Agreement, and thereafter, such other office of such Note Purchaser or such Assignee as may be designated in writing to the applicable Agent, the Administrative Agent, the Issuer, the Transferor, the Servicer and the Indenture Trustee by such Note Purchaser or Assignee.

“ Investment Letter ” shall mean the letter delivered by each Note Purchaser that is substantially in the form attached as Exhibit D to the Indenture.

“ Issuer ” has the meaning specified in the recitals to this Agreement.

“ Liquidity Percentage ” shall mean, for a CPC Committed Purchaser, such CPC Committed Purchaser’s Adjusted Commitment with respect to its related CP Conduit as a percentage of the aggregate Adjusted Commitments of all CPC Committed Purchasers for such CP Conduit.

“ Maximum Purchase Amount ” shall mean (i) for any CP Conduit which is not a Committed Purchaser, the aggregate Commitments of the CPC Committed Purchasers in its Purchaser Group and (ii) for any Committed Purchaser, its Commitment.

“ Moody’s ” shall mean Moody’s Investors Service, Inc., or any successor that is a nationally recognized statistical rating organization.

“ Natixis ” has the meaning specified in the preamble to this Agreement.

“ Note Agent ” has the meaning specified in Section 6.1(a) .

“ Note Owner ” shall mean an Equipment Loan Note Owner or a Receivables Note Owner, as applicable.

“ Note Purchaser ” shall mean an Equipment Loan Note Purchaser or a Receivables Note Purchaser, as applicable.

“ Participant ” has the meaning specified in Section 7.1(d) .

“ Participation ” has the meaning specified in Section 7.1(d) .

“ Percentage Interest ” shall mean the Equipment Loan Percentage Interest or the Receivables Percentage Interest, as applicable. In the event that a Note Purchaser is both an Equipment Loan Note Purchaser and a Receivables Note Purchaser, such Note Purchaser shall be deemed to hold separate Percentage Interests hereunder in each such capacity.

 

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“ Permitted Transferee ” shall mean (i) prior to the Conversion Date, each initial Equipment Loan Note Purchaser or Receivables Note Purchaser, as applicable, each initial Agent (in its individual capacity), the Administrative Agent (in its individual capacity), each Conduit Assignee that is an Affiliate Conduit Assignee if a Downgrade Event has occurred, each Conduit Assignee which has been consented to as a potential Transferee by the Transferor (which consent shall not be unreasonably withheld), each Person listed in the Consented Transferee Letter as in effect on the date of the related Transfer, at such time and each other Person who has been consented to as a potential Transferee by the Transferor (which consent shall not be unreasonably withheld) or (ii) after the Receivables Conversion Date or Loan Conversion Date, as applicable, or otherwise if the Transferee is a Transferee of an Equipment Loan Note, a Receivables Note or the rights thereunder and not of any Commitment, any Transferee.

“ Person ” shall mean an individual, partnership, corporation, business trust, statutory trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

“ Pooling and Servicing Agreement ” shall have the meaning specified in the recitals to this Agreement.

“ Primary Purchaser ” shall mean with respect to each Purchaser Group, each CP Conduit, and to the extent that a Purchaser Group does not contain a CP Conduit, each Note Purchaser in such Purchaser Group.

“ Purchaser Group ” shall mean each Equipment Loan Purchaser Group and each Receivables Purchaser Group, as applicable.

“ Purchaser Percentage ” shall mean, with respect to a Primary Purchaser, its Maximum Purchase Amount as a percentage of the Equipment Loan Facility Limit or Receivables Loan Facility Limit, as applicable.

Qualified Special Purpose Entity : As defined in accordance with GAAP as such term is defined on the date of the Credit Agreement.

“ Receivables Advance Increase ” shall mean the amount of each Advance made to the Receivables Notes on each Receivables Borrowing Date.

“ Receivables Borrowing Date ” shall mean each date on which a Receivables Advance Increase occurs.

“ Receivables Facility Limit ” shall mean, for any day, $60,000,000, minus the excess, if any, of (x) the Equipment Loan Note Principal Balance on such day over (y) $270,000,000.

“ Receivables Initial Advance ” shall mean the amount of the Advance made on the Receivables Notes on the Closing Date.

 

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“ Receivables Monthly Interest ” shall mean, for any Distribution Date, the Receivables Monthly Interest and Fees for the Interest Period ended on the day preceding such Distribution Date.

“ Receivables Monthly Interest and Fees ” shall mean, for any Interest Period, the sum of (i) interest on the Receivables Note Principal Balance for the Interest Period ended on such Distribution Date computed pursuant to Section 2.2(a) and Section 2.2(e) , plus (ii) the Receivables Unused Facility Fee with respect to such Interest Period.

“ Receivables Note Owners ” shall mean the Receivables Note Purchasers that are owners of record of the Receivables Notes or, with respect to any Receivables Note held by an Agent hereunder as nominee on behalf of Receivables Note Purchasers in a Receivables Purchaser Group, the Receivables Note Purchasers that are beneficial owners of such Receivables Note as reflected on the books of such Agent in accordance with this Agreement and the Related Documents.

“ Receivables Note Principal Balance ” shall mean the outstanding principal balance of all Advances on such Receivables Notes.

“ Receivables Note Purchasers ” shall mean, collectively, the CP Conduits and the Committed Purchasers that are members of a Receivables Purchase Group.

“ Receivables Notes ” has the meaning specified in the recitals to this Agreement.

“ Receivables Percentage Interest ” shall mean, for a Receivables Note Purchaser on any day, the percentage equivalent of (a) the sum of (i) the portion of the Receivables Initial Advance (if any) purchased by such Receivables Note Purchaser, plus (ii) the aggregate portion of Receivables Advance Increases (if any) purchased by such Receivables Note Purchaser prior to such day pursuant to this Agreement, plus (iii) any portion of the Receivables Note Principal Balance acquired by such Receivables Note Purchaser as an Assignee from another Receivables Note Purchaser pursuant to a Transfer Supplement executed and delivered pursuant to Section 7.1 , minus (iv) the aggregate amount of principal payments made with respect to the Receivables Notes to such Receivables Note Purchaser prior to such day, minus (v) any portion of the Receivables Note Principal Balance assigned by such Receivables Note Purchaser to an Assignee pursuant to a Transfer Supplement executed and delivered pursuant to Section 7.1 , divided by (b) the aggregate Receivables Note Principal Balance on such day.

“ Receivables Purchaser Group ” shall mean each group of Receivables Note Purchasers consisting of at least one Committed Purchaser and an Agent. Purchaser Groups may also contain a CP Conduit. The initial Receivables Note Purchaser Groups shall be (i) Versailles Assets LLC, as a CP Conduit and as a Committed Purchaser, and Natixis, as Agent, (ii) Fairway Finance Company, LLC, as a CP Conduit and as a Committed Purchaser, and BMO, as Agent and (iii) Liberty Street Funding LLC, as a CP Conduit, and Scotia, as a Committed Purchaser and Agent.

“ Receivables Unused Facility Fee ” shall have the meaning, with respect to each Receivables Purchaser Group, specified in the Applicable Margin Fee Letter.

 

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“ Regulatory Change ” shall mean, as to each Note Purchaser, Participant or Affected Party, any change, or any generally accepted change in the interpretation or application, occurring after the date of the execution and delivery of this Agreement or, if later, the date of the execution and delivery of the Transfer Supplement by which it became party to this Agreement; in the case of a Participant, any change occurring after the date on which its Participation became effective; or in the case of an Affected Party, any change occurring after the date it became such an Affected Party, in any (or the adoption after such date of any new):

(i) United States federal or state law or foreign law applicable to such Note Purchaser, Participant or Affected Party; or

(ii) regulation, interpretation, directive, guideline or request (whether or not having the force of law) applicable to such Note Purchaser, Participant or Affected Party of any court or other judicial authority or any Governmental Authority charged with the interpretation or administration of any law referred to in clause (i)  or of any fiscal, monetary, banking or other Governmental Authority or central bank having jurisdiction over such Note Purchaser, Participant or Affected Party or charged with the administration, interpretation or application of any such regulation, interpretation, directive, guideline or request. For avoidance of doubt, any interpretation of Accounting Research Bulletin No. 51 (or any revision or amendment to any existing interpretation thereof) by the Financial Accounting Standards Board or any Accounting Based Consolidation Event shall constitute a Regulatory Change herein.

“ Related Documents ” shall mean, collectively, this Agreement (including all effective Fee Letters and Transfer Supplements), the Transfer and Servicing Agreements, the Indenture, the Trust Agreement, the Administration Agreement, the Notes, the Custodial Agreement, and all agreements and instruments related thereto.

“ Replacement Purchaser ” has the meaning specified in Section 7.1(j) .

“ Required Equipment Loan Note Owners ” as to any Purchaser Group, shall mean, at any time, Equipment Loan Note Owners having more than two-thirds of the aggregate Percentage Interests of all Equipment Loan Note Owners in such Purchaser Group.

“ Required Equipment Loan Note Purchasers ” as to any Purchaser Group, shall mean, at any time, Committed Purchasers having Commitments aggregating more than two-thirds of all of the Commitments in such Purchaser Group.

“ Required Receivables Note Owners ” as to any Purchaser Group, shall mean, at any time, Receivables Note Owners having more than two-thirds of the aggregate Percentage Interests of all Receivables Note Owners in such Purchaser Group.

“ Required Receivables Note Purchasers ” as to any Purchaser Group, shall mean, at any time, Committed Purchasers having Commitments aggregating more than two-thirds of all of the Commitments in such Purchaser Group.

“ Requirement of Law ” shall mean, as to any Person, any law, treaty, rule or regulation, or determination of an arbitrator or Governmental Authority, in each case applicable to or binding upon such or to which such Person is subject, whether federal, state or local (including usury laws, the Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of Governors of the Federal Reserve System).

 

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“ Scotia ” means The Bank of Nova Scotia.

“ Standard & Poor’s ” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., or any successor that is a nationally recognized statistical rating organization.

“ Successor Servicer ” shall have the meaning specified in Section 8.5 .

“ Support Advances ” shall mean, with respect to a CPC Committed Purchaser and its related CP Conduit, any participation held by such CPC Committed Purchaser in such CP Conduit’s Percentage Interest in the Equipment Loan Note Principal Balance or Receivables Note Principal Balance, as applicable, which was purchased from such CP Conduit pursuant to a Support Facility and any loans or other advances made by such CPC Committed Purchaser to such CP Conduit pursuant to a Support Facility to fund such CP Conduit’s making or maintaining its purchases hereunder up to the amount of the related Advance (but excluding any such loans or advances made to fund such CP Conduit’s obligations to pay interest, fees or other similar amounts relating to the funding of its making or maintaining its purchases hereunder). In the event that such CPC Committed Purchaser and its related CP Conduit are both Equipment Loan Note Purchasers and Receivables Note Purchasers, such CPC Purchaser shall be deemed to hold separate Support Advances hereunder in each such capacity.

“ Support Facility ” shall mean any liquidity or credit support agreement with a CP Conduit which relates to this Agreement (including any master repurchase agreement or an agreement to purchase an assignment of or participation in Equipment Loan Notes or Receivables Notes), it being understood that such liquidity or credit support may also relate to other transactions.

“ Support Party ” shall mean any bank, insurance company or other financial institution extending or having a commitment to extend funds to or for the account of or to provide credit support for the benefit of a CP Conduit (including by agreement to purchase an assignment of or participation in Equipment Loan Notes or Receivables Notes) under a Support Facility. Each CPC Committed Purchaser for a CP Conduit which is a CP Conduit shall be deemed to be a Support Party for such CP Conduit.

“ Taxes ” has the meaning specified in Section 2.4(a) .

“ Transfer ” has the meaning specified in Section 7.1(c) .

“ Transfer Supplement ” has the meaning specified in Section 7.1(e) .

“ Transferee ” has the meaning specified in Section 7.1(c) .

“ Transferor ” has the meaning specified in the preamble to this Agreement.

 

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“ written ” or “ in writing ” (and other variations thereof) shall mean any form of written communication or a communication by means of telex, telecopier device, telegraph or cable.

 

1.2

Other Definitional Provisions .

(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings as set forth herein when used in any certificate or other document made or delivered pursuant hereto.

(b) The words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; and Section, subsection and Exhibit references are to this Agreement, unless otherwise specified. The words “including” and “include” shall be deemed to be followed by the words “without limitation.” References to any Person include that Person’s successors in interest.

ARTICLE 2 AMOUNT AND TERMS OF COMMITMENTS

 

2.1

Purchases .

(a) On and subject to the terms and conditions of this Agreement (including Article 3 and clause (g)  below), on the Closing Date each initial Primary Purchaser may purchase its Purchaser Percentage of the Equipment Loan Initial Advance or the Receivables Initial Advance, as applicable, for a purchase price equal to the portion of the Equipment Loan Initial Advance or the Receivables Initial Advance, as applicable, so purchased. The determination of whether an initial Primary Purchaser will make such purchase may, less such amounts as the Issuer and the initial Primary Purchasers shall agree, be made by the related Agent for such Primary Purchaser.

(b) On and subject to the terms and conditions of this Agreement (including Article 3 and clause (g)  below) and prior to the applicable Conversion Date, each Primary Purchaser may purchase its Purchaser Percentage of any Equipment Loan Advance Increase or Receivables Advance Increase, as applicable, offered for purchase hereunder for a purchase price equal to the Equipment Loan Advance Increase or the Receivables Advance Increase, as applicable, so purchased. The determination of whether an initial Primary Purchaser will make such purchase may be made by the related Agent for such Primary Purchaser.

(c) Each purchase of any Equipment Loan Advance Increase or Receivables Advance Increase hereunder shall be in accordance with the provisions hereof upon delivery of an Advance Increase Notice by the Issuer to each Agent and the Indenture Trustee received no later than 3:00 p.m., New York City time, at least two Business Days prior to the applicable Equipment Loan Borrowing Date (except that once per calendar quarter, commencing June 2009, the Issuer shall only be required to provide one Business Day’s notice) or one Business Day prior to the applicable Receivables Borrowing Date (or such shorter period as may be agreed to by each Agent), in each case except as otherwise agreed by the Issuer and the Noteholders. Each Advance Increase Notice shall be irrevocable and shall specify an Advance of at least $1,000,000, unless each Committed Purchaser otherwise agrees, and in an integral multiple of

 

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$100,000. The Issuer may not deliver more than one Advance Increase Notice with respect to an Equipment Loan Advance Increase and more than two Advance Increase Notices with respect to a Receivables Advance Increase in any calendar week, unless each Agent otherwise agrees, which consent shall not be unreasonably withheld.

(d) Subject to the satisfaction of the applicable conditions set forth in Article 3 and clause (g)  below, each CP Conduit which is a Committed Purchaser shall make a purchase of Equipment Loan Notes or Receivables Notes, as applicable, on the applicable Purchase Date in an amount equal to its Equipment Loan Initial Advance, the Equipment Loan Advance Increase, the Receivables Initial Advance, or the Receivables Advance Increase, as the case may be, for a purchase price equal to its share of the Equipment Loan Initial Advance, the Equipment Loan Advance Increase, the Receivables Initial Advance, or the Receivables Advance Increase, as applicable, so purchased. Each CP Conduit which is not a Committed Purchaser shall notify the Agent for its Purchaser Group by 10:00 a.m., New York City time, on the applicable Purchase Date whether it has elected to make the purchase offered to it pursuant to Section 2.1 (a)  or 2.1(b) . In the event that a CP Conduit which is not a Committed Purchaser shall not have timely provided such notice, such CP Conduit shall be deemed to have elected not to make such purchase. Such Agent shall notify each CPC Committed Purchaser for such CP Conduit on or prior to 11:00 a.m., New York City time, on the applicable Purchase Date if such CP Conduit has not elected to purchase its entire Purchaser Percentage of the Equipment Loan Initial Advance, the Equipment Loan Advance Increase, the Receivables Initial Advance, or the Receivables Advance Increase, as the case may be, which notice shall specify (i) the identity of such CP Conduit, (ii) the portion of the Equipment Loan Initial Advance, the Equipment Loan Advance Increase, the Receivables Initial Advance, or the Receivables Advance Increase, as the case may be, which such CP Conduit has not elected to purchase as provided above, and (iii) the respective Liquidity Percentages of such CPC Committed Purchasers on such Purchase Date (as determined by such Agent in good faith; for purposes of such determination, such Agent shall be entitled to rely conclusively on the most recent information provided by such CP Conduit or its agent or by the agent for its Support Parties). Subject to receiving such notice and the satisfaction of the applicable conditions set forth in Article 3 and clause (g)  below, each of such CP Conduit’s CPC Committed Purchasers shall make a purchase of Equipment Loan Notes or Receivables Notes, as applicable, on the applicable Purchase Date in an amount equal to its Liquidity Percentage of the portion of the Equipment Loan Initial Advance, the Equipment Loan Advance Increase, the Receivables Initial Advance, or the Receivables Advance Increase, as the case may be, which such CP Conduit has not elected to purchase, for a purchase price equal to its share of the Equipment Loan Initial Advance, the Equipment Loan Advance Increase, the Receivables Initial Advance, or the Receivables Advance Increase, as applicable, so purchased.

(e) All purchases made pursuant to this Note Purchase Agreement by each Note Purchaser in a Purchaser Group shall be evidenced by one Equipment Loan Note or Receivables Note, as applicable, for such Purchaser Group issued pursuant to the Indenture in the name of the related Agent for such Purchaser Group or, if requested by such Agent, in the name of the relevant Primary Purchaser. Each Equipment Loan Note Purchaser’s or Receivables Note Purchaser’s, as applicable, purchase price payable pursuant to Section 2.1(a) , 2.1(b) or 2.1(d) shall be made available to the Issuer at such account as it shall direct or to the Agent for its Purchaser Group at the account of the Agent specified in Section 8.2(b) , subject to the fulfillment of the applicable conditions set forth in Article 3 , if to the Agent, at or prior to 2:00 p.m.,

 

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New York City time, and if to the Issuer, at or prior to 3:00 p.m., New York City time, on the applicable Purchase Date, by deposit of immediately available funds. If such funds are to be remitted to an Agent, such Agent shall promptly notify the Issuer and the Transferor in the event that any Equipment Loan Note Purchaser or Receivables Note Purchaser either fails to make such funds available to such Agent before such time or notifies such Agent that it will not make such funds available to such Agent before such time. Subject to (i) such Agent’s receipt of such funds and (ii) the fulfillment of the applicable conditions set forth in Article 3 , as determined by such Agent, such Agent will, not later than 3:00 p.m., New York City time on such Purchase Date, make such funds available, in the same type of funds received, by wire transfer thereof to the account of the Issuer in the United States specified in the applicable Advance Increase Notice or, in the case of the purchase on the Closing Date, specified in writing by the Issuer to such Agent not later than the one Business Day prior to the Closing Date.

(f) Notwithstanding the fulfillment of the applicable conditions set forth in Article 3 with respect to a purchase, in the event that a CP Conduit which is not a Committed Purchaser elected to make a purchase on a Purchase Date but failed to make its purchase price available to the Agent for its Purchaser Group when required by Section 2.1(e) , such CP Conduit shall be deemed to have rescinded its election to make such purchase, and none of the Issuer, the Transferor or any other Person shall have any claim against such CP Conduit by reason of its failure to timely make such purchase. In any such case, such Agent shall give notice of such failure not later than 1:00 p.m., New York City time, on the Purchase Date to each CPC Committed Purchaser for such CP Conduit and to the Issuer and the Transferor, which notice shall specify (i) the identity of such CP Conduit, (ii) the amount of the purchase which it had elected but failed to make and (iii) the respective Liquidity Percentages of such CPC Committed Purchasers on such Purchase Date (as determined by such Agent in good faith; for purposes of such determination, such Agent shall be entitled to rely conclusively on the most recent information provided by such CP Conduit or its agent or by the agent for its Support Parties). Subject to receiving such notice, each of such CP Conduit’s CPC Committed Purchasers shall purchase a portion of the Equipment Loan Note Principal Balance or Receivables Note Principal Balance, as applicable, in an amount equal to its Liquidity Percentage of the amount described in clause (ii)  above at or before 2:00 p.m., New York City time, on such Purchase Date and otherwise in accordance with Section 2.1(d) . Subject to such Agent’s receipt of such funds, such Agent will not later than 3:00 p.m., New York City time, on such Purchase Date make such funds available, in the same type of funds received, by wire transfer thereof to the account of the Issuer described in Section 2.1(e) , which payment shall be deemed to be timely for purposes hereof and of the Indenture.

(g) Notwithstanding anything herein to the contrary, in no event (i) shall a Committed Purchaser be required on any date to make a purchase of the Equipment Loan Initial Advance or purchase an Equipment Loan Advance Increase which would result in its Percentage Interest of the Equipment Loan Note Principal Balance, determined after giving effect to such purchase, exceeding its Adjusted Commitment with respect thereto; or (ii) may any Equipment Loan Advance Increase or the Equipment Loan Initial Advance be offered for purchase hereunder, nor shall any Equipment Loan Note Purchaser be obligated to purchase any Equipment Loan Advance Increase or the Equipment Loan Initial Advance, to the extent that, after giving effect to such Equipment Loan Advance Increase or purchase of the Equipment Loan Initial Advance, the Equipment Loan Note Principal Balance would exceed the Equipment Loan Facility Limit.

 

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(h) Notwithstanding anything herein to the contrary, in no event (i) shall a Committed Purchaser be required on any date to make a purchase of the Receivables Initial Advance or purchase a Receivables Advance Increase which would result in its Percentage Interest of the Receivables Note Principal Balance, determined after giving effect to such purchase, exceeding its Adjusted Commitment with respect thereto; or (ii) may any Receivables Advance Increase or the Receivables Initial Advance be offered for purchase hereunder, nor shall any Receivables Note Purchaser be obligated to purchase any Receivables Advance Increase or the Receivables Initial Advance, to the extent that, after giving effect to such Receivables Advance Increase or purchase of the Receivables Initial Advance, the Receivables Note Principal Balance would exceed the Receivables Facility Limit.

2.2 Interest, Fees, Expenses, Payments, Etc .

(a) The interest and fees (including the Equipment Loan Facility Fee and the Receivables Facility Fee) on the Equipment Loan Notes and Receivables Notes shall be paid as provided in the Indenture (including Sections 2.7 and 8.2).

(b) The principal of, and interest and fees in respect of the Equipment Loan Notes shall be paid as provided in Sections 2.7 and 8.2 of the Indenture. Equipment Loan Monthly Interest and Fees for each Interest Period (including the last Interest Period) shall be due and payable on the Distribution Date immediately following such Interest Period. In the case of Equipment Loan Notes held by an Agent as nominee on behalf of an Equipment Loan Note Purchaser in its Purchaser Group, such Agent shall allocate to each Equipment Loan Note Owner in its Purchaser Group each payment in respect of the Equipment Loan Notes received by such Agent in its capacity as Equipment Loan Noteholder as provided herein. Payments in reduction of the portion of the Equipment Loan Note Principal Balance evidenced by an Equipment Loan Note shall be allocated and applied to the Equipment Loan Note Owners of such Equipment Loan Note pro rata based on their respective Percentage Interests of the Equipment Loan Note Principal Balance, or in any such case in such other proportions as each affected Equipment Loan Note Purchaser may agree upon in writing from time to time with such Agent and the Issuer. Payments of interest in respect of the portion of the Equipment Loan Note Principal Balance evidenced by an Equipment Loan Note shall be allocated and applied to Equipment Loan Note Owners of such Equipment Loan Note pro rata based upon the respective amounts of interest due and payable to them, determined as provided above in this Section 2.2 .

(c) The principal of, and interest and fees in respect of the Receivables Notes shall be paid as provided in Sections 2.7 and 8.2 of the Indenture. In the case of Receivables Notes held by an Agent as nominee on behalf of a Receivables Note Purchaser in its Purchaser Group, such Agent shall allocate to each Receivables Note Owner in its Purchaser Group each payment in respect of the Receivables Notes received by such Agent in its capacity as Receivables Noteholder as provided herein. Payments in reduction of the portion of the Receivables Note Principal Balance evidenced by a Receivables Note shall be allocated and applied to the Receivables Note Owners of such Receivables Note pro rata based on their respective Percentage Interests of the Receivables Note Principal Balance, or in any such case in

 

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such other proportions as each affected Receivables Note Purchaser may agree upon in writing from time to time with such Agent and the Issuer. Payments of interest in respect of the portion of the Receivables Note Principal Balance evidenced by a Receivables Note shall be allocated and applied to Receivables Note Owners of such Receivables Note pro rata based upon the respective amounts of interest due and payable to them, determined as provided above in this Section 2.2 . Payments of the Receivables Unused Facility Fee shall be allocated and paid to Receivables Note Owners pro rata based upon their respective interest in the Receivables Note Principal Balance for the applicable Interest Period.

(d) Any fees and any interest thereon or other amounts due and payable hereunder (without regard to any limitations set forth herein on the sources from which such amount may be paid) which are not paid on the due date thereof (including interest payable pursuant to this clause (d) ) shall accrue interest (after as well as before judgment) at 2% per annum above the Base Rate plus the Applicable Margin in effect on the date the payment was due from and including the due date thereof to but excluding the date such amount is actually paid.

(e) Unless otherwise specified in the Applicable Margin Fee Letter, interest calculated by reference to the Adjusted Eurodollar Rate shall be calculated on the basis of a 360-day year for the actual days elapsed. Periodic fees or other periodic amounts payable hereunder shall be calculated, unless otherwise specified in the Fee Letter, on the basis of a 360-day year and for the actual days elapsed.

(f) All payments to be made hereunder or under the Indenture, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 11:30 a.m., New York City time, on the due date thereof to the applicable Agent, at its account specified in Section 8.2(b) , in Dollars and in immediately available funds. Payments received by such Agent after 11:30 a.m., New York City time, shall be deemed to have been made on the next Business Day, unless otherwise agreed to by such Agent. Notwithstanding anything herein to the contrary, if any payment due hereunder becomes due and payable on a day other than a Business Day, the payment date thereof shall be extended to the next succeeding Business Day and interest shall accrue thereon at the applicable rate during such extension. To the extent that (i) the Issuer, the Indenture Trustee, the Transferor or the Servicer makes a payment to the Administrative Agent or an Agent or Note Purchaser or (ii) the Administrative Agent or an Agent or Note Purchaser receives or is deemed to have received any payment or proceeds for application to an obligation, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy or insolvency law, state or federal law, common law, or for equitable cause, then, to the extent such payment or proceeds are set aside, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received or deemed received by the Administrative Agent, such Agent or such Note Purchaser, as the case may be.

(g) Each Agent shall notify the Indenture Trustee and the Servicer of the Cost of Funds for each Note Purchaser on each Determination Date.

 

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2.3 Requirements of Law .

(a) In the event that any Note Purchaser, Participant or Affected Party, as applicable, shall have reasonably determined that any Regulatory Change shall impose, modify, hold or deem applicable any reserve, special deposit, compulsory loan or similar requirement (including any such requirement imposed by the Board of Governors of the Federal Reserve System and any such establishment or interpretation of accounting principles) against assets of or held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, such Note Purchaser or Affected Party, as applicable, or shall impose on any Note Purchaser, Affected Party or the London interbank market any other condition affecting this Agreement, the Indenture or any Transfer and Servicing Agreement, the ownership, maintenance or financing of the Notes, the Trust Estate or payments of amounts due hereunder or its obligations to advance funds hereunder or under a Support Facility and the result of any of the foregoing is to increase the cost to such Note Purchaser or Affected Party, by an amount which such Note Purchaser or Affected Party in good faith deems to be material, of maintaining its Commitment (whether hereunder or under a Support Facility) or its interest in the Equipment Loan Notes or Receivables Notes, as applicable, or to reduce any amount receivable in respect thereof, then , in any such case, after submission by such Note Purchaser or Affected Party to the Agent for the related Purchaser Group of a written request therefor and the submission by such Agent to the Issuer, the Transferor and the Servicer of such written request therefor, together with the certificate described in Section 2.3(d) below, the Servicer shall pay to such Agent for the account of such Note Purchaser or Affected Party any additional amounts necessary to compensate such Note Purchaser or Affected Party for such increased cost or reduced amount receivable, to the extent not already reflected in the applicable interest rate (other than with respect to the applicable margin), together with interest on any such unpaid amount from the Distribution Date following receipt by the Issuer of such request for compensation under this Section 2.3(a) , if such request is received by the Issuer at least five Business Days prior to the Determination Date related to such Distribution Date, and otherwise from the following Distribution Date, until payment in full thereof (after as well as before judgment) at the Federal Funds Rate in effect from time to time.

(b) In the event that any Note Purchaser or Affected Party, as applicable, shall have reasonably determined that any Regulatory Change regarding capital adequacy or any change in the application of generally accepted accounting principles has the effect of reducing the rate of return on such Note Purchaser’s or Affected Party’s capital or on the capital of any Person controlling such Note Purchaser or Affected Party as a consequence of its obligations hereunder or with respect hereto or its maintenance of its Commitment (whether hereunder or under a Support Facility) or its interest in the Equipment Loan Notes or Receivables Notes, as applicable, to a level below that which such Note Purchaser, Affected Party or such Person could have achieved but for such Regulatory Change (taking into consideration such Note Purchaser’s, Affected Party’s or Person’s policies with respect to capital adequacy) or such accounting change by an amount in good faith deemed by such Note Purchaser, Affected Party or Person to be material, then , from time to time, after submission by such Note Purchaser or Affected Party to the Agent for the related Purchaser Group of a written request therefor and the submission by such Agent to the Issuer, the Transferor and the Servicer of such written request therefor, together with the certificate described in Section 2.3(d) below, the Issuer and the Servicer shall, on a joint and several basis, pay to such Agent for the account of such Note Purchaser or

 

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Affected Party such additional amount or amounts as will compensate such Note Purchaser, Affected Party or Person, as applicable, for such reduction, together with interest on any such unpaid amount from the Distribution Date following receipt by the Issuer of such request for compensation under this Section 2.3(b) , if such request is received by the Issuer at least five Business Days prior to the Determination Date related to such Distribution Date, and otherwise from the following Distribution Date, until payment in full thereof (after as well as before judgment) at the Federal Funds Rate in effect from time to time. Nothing in this Section 2.3(b) shall be deemed to require the Issuer or the Servicer to pay any amount to a Note Purchaser or Affected Party to the extent such Note Purchaser or Affected Party has been compensated therefor under another provision of this Agreement or to the extent such amount is already reflected in the applicable interest rate (other than with respect to the applicable margin).

(c) Each Note Purchaser and Affected Party agrees that it shall use its reasonable efforts to reduce or eliminate any claim for compensation pursuant to Sections 2.3(a) and 2.3(b) , including but not limited to designating a different Investing Office for their Equipment Loan Notes or Receivables Notes, as applicable (or any interest therein), if such efforts will avoid the need for, or reduce the amount of, any increased amounts referred to in Section 2.3(a) or 2.3(b) and will not, in the reasonable opinion of such Note Purchaser or Affected Party, as applicable, be unlawful or otherwise disadvantageous to such Note Purchaser or Affected Party or inconsistent with its policies or regulatory restrictions or result in any unreimbursed cost or expense to such Note Purchaser or Affected Party or in an increase in the aggregate amount payable under Sections 2.3(a) and 2.3(b) .

(d) Each Note Purchaser or Affected Party claiming increased amounts described in Section 2.3(a) or 2.3(b) will furnish to the Agent for the related Purchaser Group (together with its request for compensation) a certificate prepared in good faith setting forth the basis (which may include the use of estimates derived using commercially reasonable methods) and the calculation of the amount (in reasonable detail) of each request by such Note Purchaser or Affected Party for any such increased amounts referred to in Section 2.3(a) or 2.3(b) . Any such certificate shall be conclusive absent manifest error, and such Agent shall deliver a copy thereof to the Issuer, the Transferor and the Servicer. Failure on the part of any Note Purchaser or Affected Party to demand compensation for any amount pursuant to Section 2.3(a) or 2.3(b) with respect to any period shall not constitute a waiver of such Note Purchaser’s or Affected Party’s right to demand compensation with respect to such period; provided , however , that notwithstanding the foregoing provisions of this Section 2.3 , a Note Purchaser or Affected Party, as applicable, shall not be compensated for any such amount relating to any period ending more than six months prior to the date that the related Agent for such Note Purchaser or Affected Party notifies the Issuer, the Transferor and the Servicer in writing thereof or for any amounts resulting from a change by any Note Purchaser or Affected Party of its Investing Office (other than changes required by law or changes made pursuant to Section 2.3(c) or Section 2.4(d) ). Amounts owing under this Section 2.3 by the Issuer shall be due and payable in accordance with Section 8.2 of the Indenture.

2.4 Taxes .

(a) All payments made to a Note Purchaser, Affected Party, Participant, Assignee, or Agent, or to the Administrative Agent under this Agreement and the Indenture

 

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(including all amounts payable with respect to the Equipment Loan Notes or Receivables Notes, as applicable) shall, to the extent allowed by law, be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp, excise, franchise or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority (collectively, “ Taxes ”), excluding, (i) income taxes (including branch profit taxes, minimum taxes and taxes computed under alternative methods, at least one of which is based on or measured by net income), franchise taxes (imposed in lieu of income taxes), or any other taxes based on or measured by the net income of the Administrative Agent or such Note Purchaser, Affected Party, Participant, Assignee or Agent (as the case may be) or the gross receipts or income of the Administrative Agent or such Note Purchaser, Affected Party, Participant, Assignee or Agent (as the case may be); (ii) any Taxes that would not have been imposed but for the failure of the Administrative Agent or such Note Purchaser, Affected Party, Participant, Assignee or Agent, as applicable, to provide and keep current (to the extent legally able) any certification or other documentation required by this Agreement to be furnished by the Administrative Agent or such Note Purchaser, Affected Party, Participant, Assignee or Agent, as applicable; and (iii) any Taxes imposed as a result of a change by the Administrative Agent or any Note Purchaser, Affected Party, Participant, Assignee or Agent of its Investing Office (other than changes pursuant to this Agreement, including Section 2.4(c) , or required by law) (all such excluded taxes being hereinafter called “ Excluded Taxes ”). If, as a result of any change in law, treaty or regulation or in the interpretation or administration thereof by any governmental or regulatory agency or body charged with the administration or interpretation thereof, or the adoption of any law, treaty or regulation, any Taxes, other than Excluded Taxes, are required to be withheld from any amounts payable to the Administrative Agent or a Note Purchaser, Affected Party, Participant, Assignee or Agent hereunder or under the Indenture, then after submission by any Note Purchaser, Affected Party, Participant or Assignee to the Agent for the related Purchaser Group and by any Agent or the Administrative Agent to the Issuer, the Transferor and the Servicer of a written request therefor, together with the certificate described in Section 2.4(b) below, the amounts so payable to the Administrative Agent or such Note Purchaser, Affected Party, Participant, Assignee or Agent, as applicable, shall be increased by the Issuer, and the Servicer shall pay to the applicable Agent for the account of such Note Purchaser, Participant, Assignee or Affected Party or for its own account or to the Administrative Agent, as applicable, the amount of such increase to the extent necessary to yield to the Administrative Agent or such Note Purchaser, Affected Party, Participant, Assignee or Agent, as applicable (after payment of all such Taxes) interest or any such other amounts payable hereunder or thereunder at the rates or in the amounts specified in this Agreement and the Indenture; provided , however , that the amounts (including any related interest or penalties) so payable to the Administrative Agent or such Note Purchaser, Affected Party, Participant, Assignee or Agent shall not be increased pursuant to this Section 2.4(a) if such requirement to withhold results from the failure of such Person to comply with Section 2.4(c) . Whenever any Taxes are payable on or with respect to amounts distributed to the Administrative Agent or a Note Purchaser, Affected Party, Participant, Assignee or Agent, then, as promptly as possible thereafter the Servicer shall send to the Agent, on behalf of such Note Purchaser or Affected Party, Participant or Assignee, or to the Administrative Agent or such Agent, as applicable, a certified copy of an original official receipt showing payment thereof. If either the Issuer or Servicer fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to

 

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the Agent, on behalf of itself or such Note Purchaser, Affected Party, Participant or Assignee, or to the Administrative Agent or such Agent, as applicable, the required receipts or other required documentary evidence, the Servicer and the Issuer shall pay, without duplication, to such Agent on behalf of such Note Purchaser, Affected Party, Participant or Assignee or to the Administrative Agent or such Agent for its own account, as applicable, any incremental taxes, interest or penalties that may become payable by the Administrative Agent or such Note Purchaser, Affected Party, Participant, Assignee or Agent, as applicable, as a result of any such failure.

(b) A Note Purchaser, Affected Party, Participant or Assignee claiming increased amounts under Section 2.4(a) for Taxes paid or payable by such Note Purchaser, Affected Party, Participant or Assignee will furnish to the applicable Agent a certificate prepared in good faith setting forth the basis (which may include the use of estimates derived using commercially reasonable methods) and amount of each request by such Note Purchaser, Affected Party, Participant or Assignee for such Taxes, and such Agent shall deliver a copy thereof to the Issuer, the Transferor and the Servicer. The Administrative Agent or an Agent, as the case may be, claiming increased amounts under Section 2.4(a) for its own account for Taxes paid or payable by the Administrative Agent or such Agent, as applicable, will furnish to the Issuer, the Transferor and the Servicer a certificate prepared in good faith setting forth the basis (which may include the use of estimates derived using commercially reasonable methods) and amount of each request by the Administrative Agent or such Agent for such Taxes. Any such certificate of the Administrative Agent or a Note Purchaser, Affected Party, Participant, Assignee or Agent shall be conclusive absent manifest error. Failure on the part of the Administrative Agent or any Note Purchaser, Affected Party, Participant, Assignee or Agent to demand additional amounts pursuant to Section 2.4(a) with respect to any period shall not constitute a waiver of the right of the Administrative Agent or such Note Purchaser, Affected Party, Participant, Assignee or Agent, as the case may be, to demand compensation with respect to such period. All such amounts shall be due and payable to such Agent on behalf of such Note Purchaser, Affected Party, Participant or Assignee or to the Administrative Agent or such Agent, as the case may be, for its own account on the Distribution Date following receipt by the Issuer of such certificate, if such certificate is received by the Issuer at least five Business Days prior to the Determination Date related to such Distribution Date and otherwise shall be due and payable on the following Distribution Date (or, if earlier, on the Final Scheduled Distribution Date).

(c) Each Equipment Loan Note Purchaser, Receivables Note Purchaser, Affected Party, Participant, Assignee, and Agent holding an interest in either the Equipment Loan Notes or Receivables Notes and the Administrative Agent agree that prior to the date on which the first interest or fee payment hereunder is due thereto, they will deliver to the Issuer, the Transferor, the Servicer, the Indenture Trustee, the applicable Agent and the Administrative Agent (i) if such Equipment Loan Note Purchaser, Receivables Note Purchaser, Affected Party, Participant, Assignee, Agent or Administrative Agent is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. federal income tax purposes, two duly completed original copies of the U.S. Internal Revenue Service Form W-8ECI or Form W-8BEN (including for purposes of claiming treaty benefits) or in either case successor applicable forms (or as otherwise required pursuant to clause (iii) herein), (ii) if such Equipment Loan Purchaser, Receivable Note Purchaser, Affected Party, Participant, Assignee or Agent, or the Administrative Agent is a United States person (as such term is defined in Section 7701(a)(30) of

 

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the Code) for U.S. federal income tax purposes, a duly completed U.S. Internal Revenue Service Form W-9 or successor applicable or required forms, and (iii) such other forms and information as may be required (as reasonably determined by the Issuer or Servicer) to confirm the availability of any applicable exemption from United States federal, state or local withholding or backup withholding taxes. Each Equipment Loan Note Purchaser, Receivables Note Purchaser, Affected Party, Participant, Assignee and Agent holding an interest in Equipment Loan Notes or Receivables Notes and the Administrative Agent also agree to deliver to the Issuer, the Transferor, the Servicer, the Indenture Trustee, the applicable Agent and the Administrative Agent two further copies of such Form W-8ECI, Form W-8BEN or Form W-9, or such successor applicable forms or other manner of certification, as the case may be, on or before the date that any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it hereunder, and such extensions or renewals thereof as may reasonably be requested by the Servicer, the Issuer, the Transferor, an Agent or the Administrative Agent, unless in any such case, solely as a result of a change in treaty, law or regulation occurring prior to the date on which any such delivery would otherwise be required, the Equipment Loan Note Purchaser, Receivables Note Purchaser, Affected Party, Participant, Assignee, Agent or the Administrative Agent as applicable, is no longer eligible to deliver the then-applicable form set forth above and so advises the Servicer, the Issuer, the Transferor and the applicable Agent and the Administrative Agent.

(d) Each Note Purchaser, Affected Party, Participant, Assignee and Agent, and the Administrative Agent agree that they shall use reasonable efforts to reduce or eliminate any amount due under Section 2.3 or this Section 2.4 , including but not limited to designating a different Investing Office for its Equipment Loan Notes or Receivables Notes, as applicable, (or any interest therein) if such designation will eliminate or materially reduce any amount due under Section 2.3 or this Section 2.4 and will not, in the reasonable opinion of such Note Purchaser, Affected Party, Participant, Assignee and Agent, and the Administrative Agent be unlawful or otherwise disadvantageous to such Note Purchaser, Affected Party, Participant, Assignee and Agent, and the Administrative Agent or inconsistent with its policies or result in any unreimbursed cost or expense to such Note Purchaser, Affected Party, Participant, Assignee and Agent, and the Administrative Agent or in an increase in the aggregate amount payable under Sections 2.3(a) and 2.3(b) . If such amount is not eliminated by any such designation or no such designation is done and the Note Purchaser does not waive payment of such amount, such Note Purchaser and the Agent for its Purchaser Group hereby severally agree to use reasonable efforts to procure a replacement purchaser not so affected and which is reasonably acceptable to the Transferor, such Agent and the Administrative Agent (a “ Replacement Purchaser ”) to replace such affected Note Purchaser. The Transferor shall also have the right to procure a Replacement Purchaser, provided that such proposed Replacement Purchaser is reasonably acceptable to the Agent for the affected Purchaser Group and the Administrative Agent. No replacement of a Note Purchaser shall be effected pursuant to this Section 2.4(d) if, after giving effect thereto, any amounts shall be owing to the replaced Note Purchaser hereunder. Each affected Note Purchaser hereby agrees to take all actions necessary to permit a Replacement Purchaser to succeed to its rights and obligations hereunder.

Notwithstanding the foregoing, (i) if the Note Purchaser being replaced pursuant to this subsection is a CPC Committed Purchaser, the Replacement Purchaser shall be acceptable to the related CP Conduit and (ii) if the Note Purchaser being replaced pursuant to this

 

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subsection is a CP Conduit, the Replacement Purchaser shall be acceptable to all related CPC Committed Purchasers; and it shall be a condition of such replacement that such Replacement Purchaser enter into substitute Support Facilities for those to which the Note Purchaser being replaced is a party on terms mutually acceptable to the parties thereto. In the event that a proposed Replacement Purchaser which has been approved by the Transferor, the applicable Agent and the Administrative Agent as provided in this subsection is not acceptable to the applicable CP Conduit or the applicable Committed Purchasers, as applicable, or has not within a reasonable period entered into applicable Support Facilities, and another replacement Note Purchaser has not been promptly procured as provided in this subsection with the consent of all affected parties, then the Note Purchaser which failed to consent to such replacement or to enter into such Support Facilities may be replaced by a Replacement Purchaser and shall use reasonable efforts to procure a Replacement Purchaser, in each case as provided in this subsection. Amounts owing under this Section 2.4 by the Issuer shall be due and payable in accordance with Section 8.2 of the Indenture.

If such amount is not eliminated due to the failure to find an acceptable Replacement Purchaser (or such Replacement Purchaser not being acceptable to the related CP Conduit or CPC Committed Purchasers, as applicable), and the affected Note Purchaser does not waive payment of such amount, the Transferor shall have the right to procure a replacement purchaser for such Note Purchaser and any additional Note Purchaser in such Note Purchaser’s Purchaser Group (the “ Exiting Note Purchaser Group ”) and a replacement agent for the respective Agent in the Exiting Note Purchaser Group (collectively, the “ Replacement Purchaser Group ”), provided that if the Exiting Note Purchaser Group contains a member that is the Administrative Agent, such proposed Replacement Purchaser Group is reasonably acceptable to the Administrative Agent. No replacement of an Exiting Note Purchaser Group shall be effected pursuant to this Section 2.4(d) if, after giving effect thereto, any amounts shall be owing to any replaced member of such Exiting Note Purchaser Group hereunder. Each member of the Exiting Note Purchaser Group hereby agrees to take all actions necessary to permit the members of the Replacement Note Purchaser Group to succeed to its rights and obligations hereunder.

2.5 Indemnification

(a) The Issuer and ALS agree to jointly and severally indemnify and hold harmless the Administrative Agent, each Agent, each Note Purchaser and each Affected Party and any director, officer, employee or agent thereof (each such Person being an “ Indemnitee ”) from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable fees and out-of-pocket expenses of counsel) whatsoever (including claims under federal or state securities laws), which the Indemnitee incurs (or which may be claimed against the Indemnitee) by reason of or in connection with (i) the failure of the offer and sale by or on behalf of the Issuer, the Transferor or any of their affiliates of the Notes in accordance with this Agreement and the other Basic Documents to comply with applicable law, (ii) the failure by the Issuer, the Transferor, ALS or the Servicer (if the Servicer is ALS or an Affiliate thereof) to comply with any covenant set forth in this Agreement or any other Basic Document ( provided that ALS shall not be liable for any indemnity arising under this clause (ii)  as a result of the Issuer’s failure to increase or replenish the Letter of Credit after the Closing Date pursuant to Section 3.27 of the Indenture (or to post cash or alternative collateral pursuant to Section 3.27 of the Indenture)), (iii) reliance on any written false representation or warranty made (including

 

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reaffirmation) by the Issuer, the Transferor, ALS or the Servicer (if the Servicer is ALS or an Affiliate thereof) set forth in this Agreement or any other Basic Document, (iv) the failure to vest in the Indenture Trustee a first priority perfected security interest in the Trust Estate, (v) any failure of ALS, as Servicer or otherwise, to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Basic Documents, (vi) third party claims arising from the commingling of Collections by the Issuer, the Servicer or the Transferor at any time with its other funds or the funds of another Person, (vii) claims by third parties (including parties to the Basic Documents only at a time when a Rapid Amortization Event exists and at all times excluding claims arising among the Agents, the Administrative Agent and the Note Purchasers) arising out of the servicing of the Loans or Receivables, the use or ownership of the Equipment, or the repossession (other than Losses related to a decline in value of the Equipment repossessed) or operation by the Servicer or any Affiliate thereof of any item of Equipment or collateral therefor, but only so long as and with respect for actions taken while ALS is the Servicer, (viii) any statement, omission or act in connection with the offering, issuance, sale or delivery of any of the Notes and (ix) claims by third parties relating to products liability, lender liability or any other claims by third parties (including parties to the Basic Documents only at a time when a Rapid Amortization Event exists and at all times excluding claims arising among the Agents, the Administrative Agent and the Note Purchasers) arising from the transactions contemplated by this Agreement or any other Basic Document, except (A) to the extent that any such claim, damage, loss, liability, cost or expense shall be caused by the bad faith, willful misconduct or gross negligence of an Indemnitee within the same Equipment Loan Purchaser Group or Receivables Purchaser Group, as applicable, as the Indemnitee making the claim in performing its obligations under this Agreement, (B) for recourse as a result of nonpayment by Obligors for credit reasons on the Accounts or the related Equipment Loans, (C) for recourse as a result of nonpayment by Obligors for credit reasons on the Accounts or the related Receivables or (D) to the extent the same constitute consequential, special or punitive damages. Subject to the limitations set forth above, but without limiting the generality of the foregoing, the Issuer agrees to indemnify and hold harmless each Indemnitee from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including at any time following the payment of the obligations under this Agreement, including payment of the Equipment Loan Note Principal Balance and payment of the Receivables Note Principal Balance) be imposed on, incurred by or asserted against such Indemnitee in any way relating to or arising out of this Agreement, or any documents contemplated by or referred to herein or the transactions contemplated hereby or any action taken or omitted by any Indemnitee under or in connection with any of the foregoing; provided that the Issuer shall not be liable under this sentence for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of an Indemnitee within the same Equipment Loan Purchaser Group or Receivables Purchaser Group, as applicable, as the Indemnitee making the claim resulting from its own gross negligence or willful misconduct. Promptly after receipt by an Indemnitee of notice of the commencement of any action, such Indemnitee, as the case may be, will, if a claim in respect thereof is to be made under this Section 2.5(a) , notify the Issuer and the Transferor in writing of the commencement thereof; provided , however , the omission to so notify the Issuer or the Transferor will not relieve the Issuer or the Transferor from any liability which it may have to such Indemnitee under this Section 2.5(a) except to the extent the Issuer or the Transferor was actually prejudiced by the failure to give such notices promptly. Amounts owing under this Section 2.5(a) by the Issuer shall be due and payable in accordance with Section 8.2 of the Indenture.

 

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(b) If any action or proceeding (including any governmental investigation) shall be brought or asserted against any Indemnitee in respect of which the indemnity provided above may be sought from ALS or the Issuer (the “ Indemnifying Party ”) each such Indemnitee shall promptly notify the Indemnifying Party in writing, and the Indemnifying Party may, within a reasonable time, irrevocably assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnitee and the payment of all expenses and reasonable legal fees; provided that failure to notify the Indemnifying Party shall not relieve it from any liability it may have to such Indemnitee except to the extent that it shall be actually prejudiced thereby; provided , further , that, the Indemnifying Party shall not be entitled to assume the defense of any such action or proceeding (i) unless the Indemnifying Party shall have acknowledged in writing to the Indemnitee that such action or proceeding is covered by the indemnification set forth in Section 2.5(a) , (ii) if the proceeding is a governmental proceeding involving the possible imposition of any criminal liability or penalty, (iii) if the relief sought in such action or proceeding is the seeing of injunctive relief against the Indemnifying Party affecting property, assets or activity not related to this transaction, or (iv) in the reasonable opinion of the Indemnitee, such defense or compromise involves a conflict of interest between such Indemnitee and an Indemnifying Party. The Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof at the expense of the Indemnitee; provided , however that the fees and expenses of separate counsel to the Indemnitee in any such proceeding shall be at the expense of the Indemnifying Party if (i) the Indemnifying Party has agreed to pay such fees and expenses, (ii) the Indemnifying Party shall have failed to assume the defense of such action or proceeding or employ counsel reasonably satisfactory to the Indemnitee in any such action or proceeding within a reasonable time after the commencement of such action or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Indemnitee and the Indemnifying Party, and the Indemnitee shall have been advised in writing by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Party which gives rise to a conflict of interest (in which case, if the Indemnitee notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such action or proceeding on behalf of such Indemnitee, it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the Indemnified Parties, which firm shall be designated in writing by the Indemnitee and shall be reasonably acceptable to the Indemnitee). The Indemnifying Party shall not be liable for any settlement of any such action or proceeding effected without its written consent to the extent that any such settlement shall be prejudicial to the Indemnifying Party (to which the Indemnified Party did not consent), but, if settled with its written consent, or if there is a final non-appealable judgment for the plaintiff in any such action or proceeding with respect to which the Indemnifying Party shall have received notice in accordance with this paragraph, the Indemnifying Party agrees to indemnify and hold the Indemnitees harmless from and against any loss or liability by reason of such settlement or judgment.

 

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(c) Any Successor Servicer, by accepting its appointment pursuant to the Pooling and Servicing Agreement, (i) shall agree to be bound by the terms, covenants and conditions contained herein applicable to the Servicer and to be subject to the duties and obligations of the Servicer hereunder, (ii) as of the date of its acceptance, shall be deemed to have made with respect to itself only the representations and warranties made by the Servicer in Section 4.2 (with appropriate factual changes) and (iii) shall agree to indemnify and hold harmless any Indemnitee from and against any and all claims, damages, losses, liabilities, costs or expenses (including the fees and expenses of counsel) whatsoever which such Indemnitee may incur (or which may be claimed against such Indemnitee) by reason of the bad faith, negligence or willful misconduct of such Servicer in exercising its powers and carrying out its obligations under this Agreement, the Pooling and Servicing Agreement or any Related Document.

(d) In the event that for any reason, any Note Purchaser receives any repayment of (i) its share of the Equipment Loan Note Principal Balance (A) other than on a Distribution Date or (B) on a Distribution Date if less than 2 Business Days’ prior notice of such Distribution Date repayment is received (which notice must specify the amount of such repayment), or (ii) its share of the Receivables Note Principal Balance upon fewer than 1 Business Day’s prior written notice no later than 3:00 p.m., New York City time (which notice must specify the amount of such repayment), then in any such case the Issuer agrees to indemnify and hold harmless each affected Note Purchaser against, and to promptly pay on demand directly to such Note Purchaser the amount equal to any loss, cost or expense incurred or suffered by such Note Purchaser as a result of such change, repayment or other action, including any hedge breakage costs and any loss, cost or reasonable out-of-pocket expense incurred or suffered by such Note Purchaser (other than loss of profit) by reason of any prepayment expense incurred or suffered by reason of the liquidation on redeployment of deposits or other funds prepaid, repaid or otherwise acquired by such Note Purchaser, in amounts which correspond to its share of the Equipment Loan Note Principal Balance or Receivables Note Purchase Balance, as applicable. A statement setting forth in reasonable detail the calculations of any additional amounts payable pursuant to this Section 2.5 submitted by a Note Purchaser, an Agent, or the Administrative Agent, as the case may be, to the Issuer, the Transferor and the Servicer shall be conclusive absent manifest error.

2.6 Expenses, etc .

(a) The Transferor, ALS and the Issuer (with respect to the Issuer, in accordance with Section 8.2 of the Indenture) agree jointly and severally to pay on demand (i) to the Administrative Agent, each Agent, the initial Equipment Loan Note Purchasers, and the initial Receivables Note Purchasers all reasonable costs and expenses in connection with the preparation, execution, and delivery of this Agreement and the other documents to be delivered hereunder or in connection herewith, including the reasonable fees and out-of-pocket expenses of counsel with respect thereto and the amounts due to Rating Agencies in connection with their rating of the Notes and their review of the Note Purchasers’ acquisition and funding of the Notes (including all costs incurred with respect to the confirmation of a CP Conduit’s rating on its commercial paper in connection therewith), (ii) to the Administrative Agent and each Agent, Equipment Loan Note Purchaser and Receivables Note Purchaser, all reasonable costs and expenses (including reasonable fees and expenses of counsel) in connection with the preparation, negotiation, execution, delivery, distribution, review, amendment (including any requested

 

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waivers and consents) of this Agreement or the Related Documents, and (iii) to the Administrative Agent and each Agent, Equipment Loan Note Purchaser and Receivables Note Purchaser, on demand, all reasonable costs and expenses (including reasonable fees and expenses of counsel), if any, in connection with the enforcement of this Agreement or any of the Related Documents, and the other documents delivered thereunder or in connection therewith. Amounts required to be paid by the Transferor pursuant to this Section 2.6(a) shall not be payable from the Trust Estate.

(b) The Servicer agrees to pay on demand any and all stamp, transfer and other similar taxes (other than Taxes covered by Section 2.4 ) and governmental fees payable in connection with the execution, delivery, filing and recording of any of the Related Documents and each related Support Facility, and agrees to save the Administrative Agent and each Equipment Loan Note Purchaser, Receivables Note Purchaser and Agent harmless from and against any liabilities with respect to or resulting from any delay in paying or any omission to pay such taxes and fees. Amounts required to be paid by the Transferor pursuant to this Section 2.6(b) shall not be payable from the Trust Estate.

2.7 Deliveries by Note Purchasers . For the purposes of Sections 2.3 , 2.4 , 2.5 , and 2.6 above, all deliveries required to be made by a Note Purchaser to the Issuer, the Transferor or the Servicer shall be made to the Administrative Agent and to the Agent for such Note Purchaser’s Purchaser Group, and one of such Agents who in turn shall make such deliveries to the Issuer, the Transferor and/or the Servicer, as applicable. Such delivery by such Note Purchaser shall not be deemed made until such Agent for such Purchaser Group makes delivery thereof to the Issuer, the Transferor and/or the Servicer, as applicable, as provided in Section 8.2 below.

2.8 Non-Renewing Committed Purchasers .

(a) Provided no Event of Default or Rapid Amortization Event has occurred and is continuing, and subject to compliance with the terms of this Section 2.8 , not more than ninety (90) days or less than sixty (60) days prior to the then current Liquidity Termination Date, the Issuer may on one occasion only request an extension thereof for an additional period such that the extended Liquidity Termination Date would fall on the Scheduled Termination Date. Each Committed Purchaser will inform the Issuer at least thirty (30) days prior to the then current Liquidity Termination Date whether it consents to such extension (which election is in the sole discretion of each Committed Purchaser).

(b) If, in accordance with Section 2.8(a) , the Issuer requests that the Committed Purchasers renew their Commitments hereunder and some but less than all such Committed Purchasers consent to such renewal within thirty (30) days of the Issuer’s request, the Issuer may arrange for an assignment of, and such non-renewing Committed Purchasers shall agree to assign, to one or more financial institutions acceptable to the Agent in such non-renewing Committed Purchasers’ Purchaser Group, of all the rights and obligations hereunder of each such non-consenting Committed Purchaser in accordance with Section 7.1 . Any such assignment shall become effective on the then current Liquidity Termination Date. Each Committed Purchaser which does not so consent to any renewal shall cooperate fully with the Issuer in effectuating any such assignment.

 

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(c) If, in accordance with Section 2.8(a) , the Issuer requests that the Committed Purchasers extend the Liquidity Termination Date and some but less than all such Committed Purchasers consent to such extension within thirty (30) days after the Issuer’s request, and if none or less than all the Commitments of the non-renewing Committed Purchasers in any Purchaser Group are assigned as provided in Section 2.8(a) , then (without limiting the obligations of all the Committed Purchasers to make Advances prior to the then current Liquidity Termination Date in accordance with the terms hereof) the related CP Conduit may sell an interest in its Percentage Interests hereunder for an aggregate purchase price equal to the lesser of (i) the maximum aggregate purchase price which would be payable if such CP Conduit assigned its entire interest in the applicable Notes at that time under Section 7.1(e) to any Support Party under the terms of the applicable Support Facility, and (ii) the aggregate available Commitments of the non-renewing Committed Purchasers in the applicable Purchaser Group, which purchase price shall be paid solely by the related non-renewing Committed Purchasers (or in the case of a CP Conduit that is the non-renewing Committed Purchaser, by its related Support Parties), pro rata according to their respective Commitments. Following the payment of such purchase price, (i) the extended Liquidity Termination Date shall be effective with respect to the renewing Committed Purchasers, (ii) the Equipment Loan Facility Limit and Receivables Facility Limit, as applicable, shall be automatically reduced pro rata in accordance with the reduction of the aggregate outstanding principal balance of the Notes of the non-renewing Committed Purchasers as described in the following sentence until such outstanding balance has been reduced to zero and each such facility limit is then equal to the aggregate of the Commitments of all renewing Committed Purchasers, and (iii) this Agreement and the Commitments of the renewing Committed Purchasers shall remain in effect in accordance with their terms notwithstanding the expiration of the Commitments of the non-renewing Committed Purchasers. Both prior to and after the applicable Conversion Date, all amounts which, under Section 8.2 of the Indenture, are to be applied in reduction of the principal amount of the Receivables Notes or the Equipment Loan Notes, as applicable, up to the aggregate of the applicable Percentage Interests sold to the non-renewing Committed Purchasers (or their Support Parties, as applicable) as described above in this subsection, shall be distributed ratably among the applicable Noteholders (both renewing and non-renewing) according to the aggregate of the applicable Percentage Interests held by them, in reduction of such Percentage Interests, but the non-renewing Committed Purchasers shall not be required to fund any future Advances. When (after the Liquidity Termination Date, as in effect prior to giving effect to the renewal) the aggregate principal balances of the Notes of the non-renewing Committed Purchasers described above in this subsection shall have been reduced to zero and all accrued interest allocable thereto and all other outstanding amounts owed in respect of principal of, interest on or fees or other indemnities owing to such Committed Purchasers shall have been paid to such Committed Purchasers in full, then such Committed Purchasers shall cease to be parties to this Agreement for any purpose.

 

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ARTICLE 3 CONDITIONS PRECEDENT

3.1 Conditions to Initial Purchase . The following shall be conditions precedent to the initial purchase of the Equipment Loan Notes or Receivables Notes, as applicable, by the Equipment Loan Note Purchasers or Receivables Note Purchasers, as applicable:

(a) the representations and warranties of the Issuer, the Servicer and the Transferor set forth or referred to in Article 4 and all representations and warranties of the Sellers set forth in the Purchase Agreement shall be true and correct in all material respects on the Closing Date as though made on and as of the Closing Date (except for representations and warranties which relate to a specific date, which shall be true and correct as of such date), and no Rapid Amortization Event, Event of Default or Servicer Default, and no event that, after the giving of notice or the lapse of time (or both), would constitute a Rapid Amortization Event, Event of Default or Servicer Default, shall have occurred and be continuing on the Closing Date;

(b) the Applicable Margin Fee Letter shall have been executed and delivered by the Issuer to each Agent;

(c) the Equipment Loan Notes and the Receivables Notes shall have been duly issued in accordance with the Indenture;

(d)(i) the Transferor, the Servicer or the Issuer, as applicable, shall have paid all fees payable on the Closing Date to the Administrative Agent and each Agent, as applicable (for its own account or for the accounts of the initial Note Purchasers), described in the Applicable Margin Fee Letter and all reasonable and appropriately invoiced costs and expenses of the Administrative Agent and the initial Agents and the Note Purchasers payable by the Transferor or the Issuer, as applicable, to the extent provided herein, or in connection with the transactions contemplated hereby and (ii) all fees payable on the Closing Date described in the Fee Letter shall have been paid; and

(e) the Administrative Agent and each Agent on behalf of the Note Purchasers shall have received on the Closing Date the following items, each of which shall be in form and substance satisfactory to each Agent and the Administrative Agent:

(i) an Officer’s Certificate of the Servicer confirming the satisfaction of the conditions set forth in clause (a)  (as to representations and warranties of the Servicer only) above;

(ii) an Officer’s Certificate of the Transferor confirming the satisfaction of the conditions set forth in clauses (a)  (as to representations and warranties of the Transferor only) and (d)  above;

(iii) an Officer’s Certificate of the Issuer confirming the satisfaction of the conditions set forth in clauses (a) (as to representations and warranties of the Issuer only) and (c)  above;

(iv) a copy of (A) the certificate of formation and limited liability company agreement or trust agreement, as applicable, of, and an incumbency certificate with respect to its officers executing any of the Related Documents on the Closing Date on behalf of, each of the Issuer, the Transferor and the Servicer, certified by its authorized officer, (B) the Trust Agreement and an incumbency certificate with respect to officers of the Owner Trustee executing any of the Related Documents on the Closing Date on behalf of the Issuer and (C) resolutions of the Board of Managers (or an authorized committee thereof) of each of the Transferor and the Servicer with respect to the Related Documents to which it is party, certified by its authorized officer;

 

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(v) a certificate issued no earlier than 30 days prior to the Closing Date by an appropriate Governmental Authority evidencing the legal existence and good standing of each of the Servicer as a Delaware limited liability company and of Transferor as a Delaware limited liability company;

(vi) the favorable written opinions of counsel for the Issuer, the Owner Trustee, the Indenture Trustee, the Transferor and the Servicer, addressed to the Administrative Agent, each Agent and each Note Purchaser, dated the Closing Date, covering general corporate matters, no conflicts with any applicable law or other agreements, the due execution and delivery of, and the enforceability of, each of the Basic Documents to which the Issuer, the Owner Trustee, the Indenture Trustee, the Transferor and the Servicer is party, true sale/non-consolidation, perfection and priority of security interest matters, tax characterization of the Issuer and the Notes and such other matters as the Administrative Agent or its counsel may reasonably request;

(vii) evidence of the due execution and delivery by the Owner Trustee, on behalf of the Issuer, and the Indenture Trustee of the Related Documents to which each is party;

(viii) an executed copy of each of the Transfer and Servicing Agreements, the Indenture, the Trust Agreement, the Administration Agreement, the Control Agreement and each of the other Basic Documents;

(ix) a certificate of the Indenture Trustee as to the establishment of certain accounts as provided in the Pooling and Servicing Agreement;

(x) the duly executed Equipment Loan Note(s) registered in the name of each Agent as nominee on behalf of the Equipment Loan Note Owners in its Purchaser Group or, if requested by such Agent, in the name of the relevant Primary Purchaser;

(xi) the duly executed Receivables Note(s) registered in the name of each Agent as nominee on behalf of the Receivables Note Owners in its Purchaser Group or, if requested by such Agent, in the name of the relevant Primary Purchaser;

(xii) evidence satisfactory to the Administrative Agent that financing statements duly executed or otherwise authorized by ALS, each Seller, Alliance Equipment Receivables and the Issuer or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrative Agent, or any Agent or Note Purchaser, desirable under the Uniform Commercial Code of all appropriate jurisdictions or any comparable law to perfect the transfers (including grants of security interests) under the Related Documents have been delivered and, if appropriate, have been duly filed or recorded and that all filing fees, taxes or other amounts required to be paid in connection therewith have been paid;

 

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(xiii) certified copies of requests for information or copies (or a similar search report certified by a party acceptable to the Administrative Agent), dated a date reasonably near to the Closing Date, listing all effective financing statements which name ALS or any Seller (under its present name and any previous name) as debtor and which are filed in the jurisdictions in which the financing statements referred to in clause (xii)  above were or are to be filed, together with copies of such financing statements (none of which, other than financing statements naming the party under the Related Documents to which transfers (including grants of security interests) thereunder purport to have been made shall cover any of the property purported to be conveyed thereunder);

(xiv) evidence satisfactory to the Administrative Agent that the Notes are rated “Aa2” by Moody’s or “AA” by Standard & Poor’s;

(xv) evidence satisfactory to each initial CP Conduit that its purchase of Equipment Loan Notes and Equipment Loan Advance Increases hereunder (if any) will not result in a reduction or withdrawal of the rating of its Commercial Paper by the Rating Agencies;

(xvi) evidence satisfactory to each initial CP Conduit that its purchase of Receivables Notes and Receivables Advance Increases hereunder (if any) will not result in a reduction or withdrawal of the rating of its Commercial Paper by the Rating Agencies;

(xvii) a Servicer’s Certificate as of the then most recently completed Monthly Period; and

(xviii) such additional documents, instruments, certificates or letters as the Administrative Agent or any Agent or Note Purchaser may reasonably request.

(f) no material adverse change in (i) business, condition or operation of any Seller, ALS, the Transferor, the Issuer or the Servicer or (ii) the collectibility of the Loans or Receivables taken as a whole shall have occurred.

3.2 Condition to Additional Purchases . The following shall be conditions precedent to the obligation of any Note Purchaser to purchase its share of the Equipment Loan Initial Advance, any Equipment Loan Advance Increase, Receivables Initial Advance or any Receivables Advance Increase, as applicable, on any Purchase Date (including the Closing Date);

(a) except in the case of the initial purchase on the Closing Date, each Agent shall have timely received a properly completed Advance Increase Notice;

(b) all interest, fees, expenses and all other amounts then due and payable to the Administrative Agent or any Note Pu