EXHIBIT 10.1
==============================================================================
FORM OF
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
TRUST AGREEMENT
between
PROVIDENT LEASE RECEIVABLES CORPORATION
and
[NAME OF TRUSTEE]
as Trustee
Dated as of September 1, 1998
==============================================================================
Table of Contents
-----------------
Page
ARTICLE I
Definitions
SECTION 1.1. Capitalized Terms.............................................1
SECTION 1.2. Other Definitional Provisions.................................1
ARTICLE II
Organization
SECTION 2.1. Name..........................................................1
SECTION 2.2. Office........................................................1
SECTION 2.3. Purposes and Powers...........................................1
SECTION 2.4. Appointment of Trustee........................................2
SECTION 2.5. Initial Capital Contribution of Trust Estate..................2
SECTION 2.6. Declaration of Trust..........................................2
SECTION 2.7. Liability of the Certificateholders...........................3
SECTION 2.8. Title to Trust Property.......................................3
SECTION 2.9. Situs of Trust................................................3
SECTION 2.10. Representations and Warranties of Depositor...................3
SECTION 2.11. Federal Income Tax Allocations................................4
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.1. Initial Ownership.............................................5
SECTION 3.2. The Trust Certificates........................................5
SECTION 3.3. Authentication of Trust Certificates..........................5
SECTION 3.4. Registration of Transfer and Exchange of Trust Certificates...6
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Trust Certificates.......7
SECTION 3.6. Persons Deemed Certificateholders.............................8
SECTION 3.7. Access to List of Certificateholders' Names and Addresses.....8
SECTION 3.8. Maintenance of Office or Agency...............................8
SECTION 3.9. Appointment of Paying Agent...................................8
SECTION 3.10. [Reserved]....................................................9
SECTION 3.11. Definitive Certificates.......................................9
ARTICLE IV
Actions by Trustee
SECTION 4.1. Prior Notice to Certificateholders with Respect
Page
to Certain Matters.............................................9
SECTION 4.2. Action by the Certificateholders with Respect to
Certain Matters...............................................10
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.......10
SECTION 4.4. Restrictions on Certificateholders' Power.....................10
SECTION 4.5. Majority Control..............................................11
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1. Establishment of Trust Account................................11
SECTION 5.2. Applications of Trust Funds...................................11
SECTION 5.3. Method of Payment.............................................12
SECTION 5.4. No Segregation of Moneys; No Interest.........................12
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service
and Others....................................................12
SECTION 5.6. Signature on Returns; Tax Matters Partner.....................13
ARTICLE VI
Authority and Duties of Trustee
SECTION 6.1. General Authority.............................................13
SECTION 6.2. General Duties................................................14
SECTION 6.3. Action upon Instruction.......................................14
SECTION 6.4. No Duties Except as Specified in this Agreement
or in Instructions 15
SECTION 6.5. No Action Except Under Specified Documents
or Instructions...............................................15
SECTION 6.6. Restrictions..................................................15
ARTICLE VII
Concerning Trustee
SECTION 7.1. Acceptance of Trusts and Duties...............................16
SECTION 7.2. Furnishing of Documents.......................................17
SECTION 7.3. Representations and Warranties................................17
SECTION 7.4. Reliance; Advice of Counsel...................................18
SECTION 7.5. Not Acting in Individual Capacity.............................18
SECTION 7.6. Trustee Not Liable for Trust Certificates or
The Trust Estate..............................................19
SECTION 7.7. Trustee May Not Own Notes.....................................19
ii
Page
ARTICLE VIII
Compensation of Trustee
SECTION 8.1. Trustee's Fees and Expenses...................................19
SECTION 8.2. Indemnification...............................................20
SECTION 8.3. Payments to Trustee...........................................20
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1. Termination of Trust Agreement................................20
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 10.1. Eligibility Requirements for Trustee..........................21
SECTION 10.2. Resignation or Removal of Trustee.............................22
SECTION 10.3. Successor Trustee.............................................22
SECTION 10.4. Merger or Consolidation of Trustee............................23
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.................23
ARTICLE XI
Miscellaneous
SECTION 11.1. Supplements and Amendments....................................25
SECTION 11.2. No Legal Title to Trust Estate in Certificateholders..........26
SECTION 11.3. Limitations on Rights of Others...............................26
SECTION 11.4. Notices.......................................................27
SECTION 11.5. Severability..................................................27
SECTION 11.6. Separate Counterparts.........................................27
SECTION 11.7. Successors and Assigns........................................27
SECTION 11.8. Covenants of Depositor........................................27
SECTION 11.9. No Petition...................................................28
SECTION 11.10. No Recourse...................................................28
SECTION 11.11. Headings......................................................28
SECTION 11.12. Governing Law.................................................28
SECTION 11.13. Manager.......................................................28
iii
EXHIBITS
EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Certificate of Trust
iv
TRUST AGREEMENT dated as of September 1, 1998, between PROVIDENT
LEASE RECEIVABLES CORPORATION, a Delaware corporation, as Depositor, and [NAME
OF TRUSTEE], a Delaware [ ], as Trustee.
ARTICLE I
Definitions
SECTION 1.1. Capitalized Terms. For all purposes of this Agreement
capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to such terms in Appendix X to the Indenture dated the date
hereof, between Provident Equipment Lease Trust 1998-A and the Indenture
Trustee.
SECTION 1.2. Other Definitional Provisions. The other interpretive
provisions specified in Appendix X to the Indenture shall apply to this
Agreement.
ARTICLE II
Organization
SECTION 2.1. Name. The Trust created hereby shall be known as
"Provident Equipment Lease Trust 1998-A", in which name Trustee may conduct
the business of Trust, make and execute contracts and other instruments on
behalf of Trust and xxx and be sued.
SECTION 2.2. Office. The office of Trust shall be in care of Trustee
at the Corporate Trust Office or at such other address in Delaware as Trustee
may designate by written notice to the Certificateholders and Depositor.
SECTION 2.3. Purposes and Powers. The purpose of Trust is, and Trust
shall have the power and authority to, engage in the following activities:
(a) to issue the Notes pursuant to the Indenture and the
Trust Certificates pursuant to this Agreement and to sell the Notes
and the Trust Certificates in one or more transactions;
(b) with the proceeds of the sale of the Notes and the Trust
Certificates, to acquire the Trust Estate pursuant to the Pooling and
Servicing Agreement;
(c) to assign, grant, transfer, pledge, mortgage and convey
the
Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the Pooling and
Servicing Agreement any portion of the Trust Estate released from the
Lien of, and remitted to Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions to
the Certificateholders and the Noteholders.
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by this Agreement or the
Basic Documents.
SECTION 2.4. Appointment of Trustee. Depositor hereby appoints
Trustee as trustee of Trust effective as of the date hereof, to have all the
rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. Depositor
hereby sells, assigns, transfers, conveys and sets over to Trustee, as of the
date hereof, the sum of $1.00. Trustee hereby acknowledges receipt in trust
from Depositor, as of the date hereof, of the foregoing contribution, which
shall constitute the initial Trust Estate and shall be deposited in the
Certificate Distribution Account. Depositor shall pay organizational expenses
of Trust as they may arise or shall, upon the request of Trustee, promptly
reimburse Trustee for any such expenses paid by Trustee. Depositor may also
take steps necessary, including the execution and filing of any necessary
filings, to ensure that Trust is in compliance with any applicable state
securities law.
SECTION 2.6. Declaration of Trust. Trustee hereby declares that it
will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholders, subject to the
obligations of Trust under the Basic Documents. It is the intention of the
parties hereto that Trust constitute a business trust under the Trust Statute
and that this Agreement constitute the governing instrument of such business
trust. It is the intention of the parties hereto that, solely for income and
franchise tax purposes, Trust shall be treated as a partnership, with the
assets of the partnership being the Trust
2
Estate and other assets held by Trust, the partners of the partnership being
the Certificateholders, and the Notes being debt of the partnership. The
parties agree that, unless otherwise required by appropriate tax authorities,
Trust will file or cause to be filed annual or other necessary returns,
reports and other forms consistent with the characterization of Trust as a
partnership for such tax purposes. Effective as of the date hereof, Trustee
shall have all rights, powers and duties set forth herein and in the Trust
Statute with respect to accomplishing the purposes of Trust.
SECTION 2.7. Liability of the Certificateholders. No
Certificateholder shall have any personal liability for any liability or
obligation of Trust.
SECTION 2.8. Title to Trust Property. Legal title to all the Trust
Estate shall be vested at all times in Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the
Trust Estate to be vested in a trustee or trustees, in which case title shall
be deemed to be vested in Trustee, a co-trustee and/or a separate trustee, as
the case may be.
SECTION 2.9. Situs of Trust. Trust will be located and administered
in the State of Delaware. All bank accounts maintained by Trustee on behalf of
Trust shall be located in the State of Delaware or the State of New York.
Trust shall not have any employees in any state other than Delaware; provided
that nothing herein shall restrict or prohibit Trustee from having employees
within or without the State of Delaware. Payments will be received by Trust
only in Delaware or New York, and payments will be made by Trust only from
Delaware or New York.
SECTION 2.10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Trustee that:
(a) Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease
of property or the conduct of its business shall require such
qualifications, licenses and approvals.
(c) Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; Depositor has full
power and
3
authority to transfer and assign the property to be transferred and
assigned to and deposited with Trust and Depositor shall have duly
authorized such transfer and assignment and deposit to Trust by all
necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by Depositor
by all necessary corporate action.
(d) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time) a default under, the certificate of incorporation or by-laws of
Depositor, or any indenture, agreement or other instrument to which
Depositor is a party or by which it is bound; or result in the
creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); or violate
any law or, to the best of Depositor's knowledge, any order, rule or
regulation applicable to Depositor of any court or of any Federal or
State regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Depositor or its properties.
SECTION 2.11. Federal Income Tax Allocations. Interest payments on
the Certificates at the Certificate Interest Rate (including interest on
amounts previously due on the Certificates but not yet distributed) shall be
treated as "guaranteed payments" under Section 707(c) of the Code. Net income
of Trust for any month as determined for Federal income tax purposes (and each
item of income, gain, loss and deduction entering into the computation
thereof) shall be allocated:
(a) among the Certificateholders as of the close of business
on the last day of such month, in proportion to their ownership of
principal amount of Trust Certificates on such date, an amount of net
income up to the sum of: (i) the portion of the market discount on
the Trust Estate accrued during such month that is allocable to the
excess, if any, of the initial Certificate Balance over their initial
aggregate issue price, and (ii) any other amounts of income payable
to the Certificateholders for such month; and such sum of amounts
specified in clauses (i) and (ii) of this sentence shall be reduced
by any amortization by Trust of premium on the Trust Estate that
corresponds to any excess of the issue price of Certificates over
their principal amount; and
(b) to Depositor any remaining net income.
If the net income of Trust for any month is insufficient for the allocations
described in clause (a), subsequent net income shall first be allocated to
make up
4
such shortfall before being allocated as provided in the preceding sentence.
Net losses of Trust, if any, for any month as determined for Federal income
tax purposes (and each item of income, gain, loss and deduction entering into
the computation thereof) shall be allocated to Depositor to the extent
Depositor (or such holders) are reasonably expected to bear the economic
burden of such net losses, and any remaining net losses shall be allocated
among the remaining Certificateholders as of the close of business on the last
day of such month in proportion to their ownership of principal amount of
Trust Certificates on such day. Depositor is authorized to modify the
allocations in this paragraph if necessary or appropriate, in its sole
discretion, for the allocations to fairly reflect the economic income, gain or
loss to Depositor or to the Certificateholders, or as otherwise required by
the Code.
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.1. Initial Ownership. Upon the formation of Trust by the
contribution by Depositor pursuant to Section 2.5, and until the issuance of the
Trust Certificates, Depositor shall be the sole beneficiary of Trust.
SECTION 3.2. The Trust Certificates. The Trust Certificates shall be
issued in denominations of $1,000,000 or in integral multiples of $1,000 in
excess thereof; provided that one Trust Certificate may be issued in a
denomination below $1,000,000 as to include any residual amount. The Trust
Certificates shall be executed on behalf of Trust by manual or facsimile
signature of an authorized officer of Trustee. Trust Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of Trust,
shall be, when authenticated pursuant to Section 3.3, validly issued and
entitled to the benefits of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Certificates or did not hold such
offices at the date of authentication and delivery of such Trust Certificates.
SECTION 3.3. Authentication of Trust Certificates. Concurrently with
the transfer of the Trust Estate to Trust pursuant to the Pooling and
Servicing Agreement, Trustee shall cause the Trust Certificates in an
aggregate principal amount equal to the Initial Certificate Balance to be
executed on behalf of Trust, authenticated and delivered to or upon the
written order of Depositor, signed by its chairman of the board, its president
or any vice president, without further corporate action by Depositor, in
authorized denominations. No Trust Certificate shall entitle its Holder to any
benefit under this Agreement, or shall be valid for
5
any purpose, unless there shall appear on such Trust Certificate a certificate
of authentication substantially in the form set forth in Exhibit A, executed
by Trustee or [ ], as Trustee's authenticating agent, by the manual signature
of one of its authorized signatories; such certificate of authentication shall
constitute conclusive evidence, and the only evidence, that such Trust
Certificate shall have been duly authenticated and delivered hereunder. All
Trust Certificates shall be dated the date of their authentication. No further
Trust Certificates shall be issued except pursuant to Section 3.4, 3.5, 3.10
or 3.13 hereunder.
SECTION 3.4. Registration of Transfer and Exchange of Trust
Certificates. Trust shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.8, a register (the "Certificate Register") in
which, subject to such reasonable regulations as it may prescribe, Issuer
shall provide for the registration of Trust Certificates and of transfers and
exchanges of Trust Certificates. Paying Agent shall be the "Certificate
Registrar" for the purpose of registering Trust Certificates and the transfers
of Trust Certificates as herein provided. Upon any resignation of any
Certificate Registrar, Depositor shall promptly appoint a successor or, if it
elects not to make such an appointment, assume the duties of the Certificate
Registrar.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.8, if the
requirements of Section 8-401(l) of the UCC are met, Trustee shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Trust Certificates in authorized denominations of
a like aggregate principal amount.
At the option of a Holder, Trust Certificates may be exchanged for
other Trust Certificates of authorized denominations, of a like aggregate
principal amount, upon surrender of the Trust Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.8. Whenever any Trust
Certificates are so surrendered for exchange, if the requirements of Section
8-401(l) of the UCC are met, Trustee shall execute, authenticate and deliver
the Trust Certificates that the Certificateholder making the exchange is
entitled to receive.
All Trust Certificates issued upon any registration of transfer or
exchange of Trust Certificates shall be entitled to the same benefits under
this Agreement as the Trust Certificates surrendered upon such registration of
transfer or exchange.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to Trustee and the Certificate
Registrar duly executed by, Holder thereof or his attorney duly authorized in
writing. Each
6
Trust Certificate surrendered for registration of transfer or exchange shall
be canceled and subsequently disposed of by Trustee in accordance with its
customary practice.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Trust Certificates, but Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Trust Certificates.
The Trust Certificates and any beneficial interest in such Trust
Certificates may not be acquired by: (a) an employee benefit plan (as defined
in Section 3(3) of ERISA) that is subject to the provisions of Title I of
ERISA, (b) a plan described in Section 4975(e)(1) of the Code or (c) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each a "Benefit Plan"). By accepting and holding a
Trust Certificate or an interest therein, the Holder thereof or Certificate
Owner thereof shall be deemed to have represented and warranted that it is not
a Benefit Plan. Trustee shall have no obligation to determine whether or not a
Holder of a Trust Certificate or a Certificate Owner is or is not a Benefit
Plan.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Trust Certificates.
If: (a) any mutilated Trust Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Certificate
(provided, that Trustee shall not be required to verify the evidence provided
to it), and (b) there shall be delivered to the Certificate Registrar and
Trustee such security or indemnity as may be required by them to hold each of
them harmless, then, in the absence of notice that such Trust Certificate
shall have been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the UCC are met, Trustee on behalf of Trust
shall execute, authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Certificate, a replacement
Trust Certificate of like tenor and denomination.
In connection with the issuance of any replacement Trust Certificate
under this Section, Trustee and the Certificate Registrar may require the
payment by the Certificateholder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any replacement Trust Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Trust Certificate
shall constitute conclusive evidence of ownership in Trust, as if originally
issued, whether or not the mutilated, lost, stolen or destroyed Trust
Certificate shall be found at any time, and shall be entitled to all the
benefits of this Agreement.
7
SECTION 3.6. Persons Deemed Certificateholders. Prior to due
presentation of a Trust Certificate for registration of transfer of any Trust
Certificate, Trustee or the Certificate Registrar may treat the Person in
whose name any Trust Certificate shall be registered in the Certificate
Register (as of the day of determination) as the owner of such Trust
Certificate for the purpose of receiving distributions pursuant to Section 5.2
and for all other purposes whatsoever, and neither Trustee nor the Certificate
Registrar shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses. Trustee shall furnish or cause to be furnished to Servicer and
Depositor, within 15 days after receipt by Trustee of a request therefor from
Servicer or Depositor in writing, a list, in such form as Servicer or
Depositor may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If two or more
Certificateholders or one or more Holder(s) of Trust Certificates evidencing
not less than 25% of the Certificate Balance apply in writing to Trustee, and
such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Trust Certificates and such application shall be accompanied by a copy of
the communication that such applicants propose to transmit, then Trustee
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of the
Certificateholders. Each Holder, by receiving and holding a Trust Certificate,
shall be deemed to have agreed not to hold any of Depositor, the Certificate
Registrar or Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 3.8. Maintenance of Office or Agency. Trustee shall maintain
in the City of New York, an office or offices or agency or agencies where
Trust Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon Trustee in respect of the Trust
Certificates and the Basic Documents may be served. Trustee shall give prompt
written notice to Depositor and to the Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.9. Appointment of Paying Agent. Paying Agent shall make
distributions to the Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Certificate Distribution Account for the purpose of
making the distributions referred to above. Trustee may revoke such power and
remove Paying Agent if Trustee determines in its sole discretion that Paying
Agent shall have failed to perform its obligations under this Agreement in any
material
8
respect. Paying Agent shall initially be [Name of Indenture Trustee], and any
co-paying agent chosen by and acceptable to Trustee. Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to Trustee.
In the event that Trustee shall not be Paying Agent, Trustee shall appoint a
successor to act as Paying Agent (which shall be a bank or trust company).
Trustee shall cause such successor Paying Agent or any additional Paying Agent
appointed by Trustee to execute and deliver to Trustee an instrument in which
such successor Paying Agent or additional Paying Agent shall agree with
Trustee that as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. Paying Agent
shall return all unclaimed funds to Trustee and upon removal of a Paying Agent
such Paying Agent shall also return all funds in its possession to Trustee.
The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall apply to Trustee also
in its role as Paying Agent, for so long as Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent appointed hereunder.
Any reference in this Agreement to Paying Agent shall include any co-paying
agent unless the context requires otherwise.
SECTION 3.10. [Reserved].
SECTION 3.11. Definitive Certificates. The Trust Certificates, upon
original issuance, will be issued in the form of definitive, fully registered
Trust Certificates (the "Definitive Trust Certificates").
SECTION 3.12. Transfer Restrictions. [Private Placement transfer
restrictions and Ohio tax transfer restrictions to be inserted].
ARTICLE IV
Actions by Trustee
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters. With respect to the following matters, Trustee shall not take
action unless, at least 30 days before the taking of such action, Trustee
shall have notified the Certificateholders in writing of the proposed action
and the Certificateholders shall not have notified Trustee in writing prior to
the 30th day after such notice is given that such Certificateholders have
withheld consent or shall not have provided alternative direction:
(a) the initiation of any claim or lawsuit by Trust (except
claims or lawsuits brought in connection with the collection of the
Trust Estate)
9
and the compromise of any action, claim or lawsuit brought by or
against Trust (except with respect to the aforementioned claims or
lawsuits for collection of the Trust Estate);
(b) the election by Trust to file an amendment to the
Certificate of Trust (substantially in the form of Exhibit B);
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is
required;
(d) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the interest
of the Certificateholders;
(e) the amendment, change or modification of the Management
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner, or add any provision, that would not
materially adversely affect the interests of the Certificateholders;
or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee, or pursuant to
this Agreement of a successor Certificate Registrar, or the consent
to the assignment by the Note Registrar, Paying Agent or Indenture
Trustee or Certificate Registrar of its obligations under the
Indenture or this Agreement, as applicable.
SECTION 4.2. Action by the Certificateholders with Respect to Certain
Matters. Trustee shall not have the power, except upon the direction of the
Certificateholders, to: (a) remove Manager under the Management Agreement, (b)
appoint a successor Manager, (c) remove Servicer under the Pooling and
Servicing Agreement or (d) except as expressly provided in the Basic
Documents, sell the Trust Estate after the termination of the Indenture.
Trustee shall take the actions referred to in the preceding sentence only upon
written instructions signed by the Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to Trust without the unanimous prior approval of all
Certificateholders and the delivery to Trustee by each such Certificateholder
of a certificate certifying that such Certificateholder reasonably believes
that Trust is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
10
Certificateholders shall not direct Trustee to take or refrain from taking any
action if such action or inaction would be contrary to any obligation of Trust
or Trustee under this Agreement or any of the Basic Documents or would be
contrary to Section 2.3, nor shall Trustee be obligated to follow any such
direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement
may be taken by Holders of Trust Certificates evidencing not less than a
majority of the Certificate Balance. Except as expressly provided herein, any
written notice of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by Holders of Trust Certificates evidencing not
less than a majority of the Certificate Balance at the time of the delivery of
such notice.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1. Establishment of Trust Account. Trustee, for the benefit
of the Certificateholders, shall establish and maintain in the name of Trust
an Eligible Deposit Account (the "Certificate Distribution Account"), bearing
a designation clearly indicating that the funds deposited therein are held for
the benefit of the Certificateholders.
Trust shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and control
of Trustee for the benefit of the Certificateholders. If, at any time, the
Certificate Distribution Account ceases to be an Eligible Account, Trustee (or
Depositor on behalf of Trustee, if the Certificate Distribution Account is not
then held by Trustee or an affiliate thereof) shall, within 10 Business Days
(or such longer period, not to exceed 30 calendar days, as to which the Rating
Agency Condition shall be satisfied), establish a new Certificate Distribution
Account as an Eligible Account and shall transfer any cash and/or any
investments to such new Certificate Distribution Account.
SECTION 5.2. Applications of Trust Funds. (a) On each Payment Date,
Trustee will distribute to Certificateholders, on a pro rata basis, amounts
deposited in the Certificate Distribution Account pursuant to Sections 6.3(b)
and 6.3(c) of the Pooling and Servicing Agreement.
11
(b) On each Payment Date, Trustee shall send to each
Certificateholder the statement provided to Trustee by Servicer pursuant to
Section 4.8 of the Pooling and Servicing Agreement.
(c) In the event that any withholding tax is imposed on Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. Trustee is hereby authorized and directed to
retain from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by Trust (but
such authorization shall not prevent Trustee from contesting any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding
tax imposed with respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is withheld by Trust. If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), Trustee
may, in its sole discretion, withhold such amounts in accordance with this
paragraph (c). In the event that a Certificateholder wishes to apply for a
refund of any such withholding tax, Trustee shall reasonably cooperate with
such Certificateholder in making such claim so long as such Certificateholder
agrees to reimburse Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of
such Holder at a bank or other entity having appropriate facilities therefor,
if such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Payment Date and such Holder's Trust Certificates aggregate not less than
$1,000,000, or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
SECTION 5.4. No Segregation of Moneys; No Interest. Subject to
Sections 5.1 and 5.2, moneys received by Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Pooling
and Servicing Agreement and may be deposited under such general conditions as
may be prescribed by law, and Trustee shall not be liable for any interest
thereon.
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. Trustee shall: (a)
maintain (or cause to be maintained) the books of Trust on a calendar year basis
on the accrual method of accounting, (b) deliver to each Certificateholder, as
may
12
be required by the Code and applicable Treasury Regulations, such information
as may be required (including Schedule K-1) to enable each Certificateholder
to prepare its Federal, state and local income tax returns, (c) file such tax
returns relating to Trust (including a partnership information return on
Internal Revenue Service Form 1065 or its successor), and make such elections
as may from time to time be required or appropriate under any applicable state
or Federal statute or rule or regulation thereunder so as to maintain Trust's
characterization as a partnership for Federal income tax purposes, (d) cause
such tax returns to be signed in the manner required by law and (e) collect or
cause to be collected any withholding tax as described in and in accordance
with Section 5.2(c) with respect to income or distributions to
Certificateholders. Trustee shall elect under Section 1278 of the Code to
include in income currently any market discount that accrues with respect to
the Trust Estate and shall elect under Section 171 of the Code to amortize any
bond premium with respect to the Trust Estate. Trustee shall not make the
election provided under Section 754 of the Code.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a) Trustee
shall sign on behalf of Trust the tax returns of Trust, unless applicable law
requires a Certificateholder to sign such documents, in which case such
documents shall be signed by Depositor.
(b) Depositor shall be designated the "tax matters partner" of Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE VI
Authority and Duties of Trustee
SECTION 6.1. General Authority. Trustee is authorized and directed to
execute and deliver the Basic Documents to which Trust is to be a party and
each certificate or other document attached as an exhibit to or contemplated
by the Basic Documents to which Trust is to be a party, in each case in such
form as Depositor shall approve as evidenced conclusively by Trustee's
execution thereof, and, on behalf of Trust, to direct Indenture Trustee to
authenticate and deliver Notes in the aggregate principal amount specified in
a letter of instruction from Depositor to Trustee. In addition to the
foregoing, Trustee is authorized, but shall not be obligated, to take all
actions required of Trust pursuant to the Basic Documents. Trustee is further
authorized from time to time to take such action as Manager recommends with
respect to the Basic Documents.
13
SECTION 6.2. General Duties. It shall be the duty of Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
this Agreement and the Basic Documents to which Trust is a party and to
administer Trust in the interest of the Certificateholders, subject to the
Basic Documents and in accordance with this Agreement. Notwithstanding the
foregoing, Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent Manager
has agreed in the Management Agreement to perform any act or to discharge any
duty of Trustee hereunder or under any Basic Document, and Trustee shall not
be held liable for the default or failure of Manager to carry out its
obligations under the Management Agreement.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV and
in accordance with the Basic Documents, the Certificateholders may by written
instruction direct Trustee in the management of Trust. Such direction may be
exercised at any time by written instruction of the Certificateholders
pursuant to Article IV.
(b) Trustee shall not be required to take any action hereunder or
under any Basic Document if Trustee shall have reasonably determined, or shall
have been advised by counsel, that such action is likely to result in
liability on the part of Trustee or is contrary to the terms hereof or of any
Basic Document or is otherwise contrary to law.
(c) Whenever Trustee is unable to decide between alternative courses
of action permitted or required by this Agreement or any Basic Document,
Trustee shall promptly give notice (in such form as shall be appropriate under
the circumstances) to the Certificateholders requesting instruction as to the
course of action to be adopted, and to the extent Trustee acts in good faith
in accordance with any written instruction of the Certificateholders received,
Trustee shall not be liable on account of such action to any Person. If
Trustee shall not have received appropriate instruction within 10 days of such
notice (or within such shorter period of time as reasonably may be specified
in such notice or may be necessary under the circumstances) it may, but shall
be under no duty to, take or refrain from taking such action, not inconsistent
with this Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any Person
for such action or inaction.
(d) In the event that Trustee is unsure as to the application of any
provision of this Agreement or any Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by Trustee or is silent or is incomplete as to the course of
action that Trustee is required to take with respect to a particular set of
facts, Trustee may give notice (in such form as shall be appropriate under the
circumstances)
14
to the Certificateholders requesting instruction and, to the extent that
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, Trustee shall not be liable, on account of such action
or inaction, to any Person. If Trustee shall not have received appropriate
instruction within 10 days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. Trustee shall not have any duty or obligation to manage, make
any payment with respect to, register, record, sell, dispose of or otherwise
deal with the Trust Estate, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which
Trustee is a party, except as expressly provided by this Agreement or in any
document or written instruction received by Trustee pursuant to Section 6.3;
and no implied duties or obligations shall be read into this Agreement or any
Basic Document against Trustee. Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security
interest or Lien granted to it hereunder or to prepare or file any Securities
and Exchange Commission filing for Trust or to record this Agreement or any
Basic Document. Trustee nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to discharge any Liens
on any part of the Trust Estate that result from actions by, or claims
against, Trustee that are not related to the ownership or the administration
of the Trust Estate.
SECTION 6.5. No Action Except Under Specified Documents or
Instructions. Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Trust Estate except: (i) in accordance
with the powers granted to and the authority conferred upon Trustee pursuant
to this Agreement, (ii) in accordance with the Basic Documents and (iii) in
accordance with any document or instruction delivered to Trustee pursuant to
Section 6.3.
SECTION 6.6. Restrictions. Trustee shall not take any action: (a)
that is inconsistent with the purposes of Trust set forth in Section 2.3 or
(b) that, to the actual knowledge of Trustee, would result in Trust's becoming
taxable as a corporation for Federal income tax purposes. The
Certificateholders shall not direct Trustee to take action that would violate
this Section.
15
ARTICLE VII
Concerning Trustee
SECTION 7.1. Acceptance of Trusts and Duties. Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect
to such trusts but only upon the terms of this Agreement. Trustee also agrees
to disburse all moneys actually received by it constituting part of the Trust
Estate upon the terms of the Basic Documents and this Agreement. Trustee shall
not be answerable or accountable hereunder or under any Basic Document under
any circumstances, except: (i) for its own willful misconduct or negligence or
(ii) in the case of the inaccuracy of any representation or warranty contained
in Section 7.3 expressly made by Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer of Trustee unless it is
proved than Trustee was negligent in ascertaining the pertinent
facts;
(b) Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the
instructions of Manager, Servicer or any Certificateholder;
(c) no provision of this Agreement or any Basic Document
shall require Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document, if Trustee shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall Trustee be liable for
indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes;
(e) Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due
execution hereof by Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust
Estate or for or in respect of the validity or sufficiency of the
Basic Documents, other than the certificate of authentication on the
Trust Certificates, and Trustee shall in no event assume or incur any
liability, duty or obligation to any Noteholder or to any
Certificateholder, other than is expressly provided for herein and in
the Basic Documents;
16
(f) Trustee shall not be liable for the default or
misconduct of Manager, Transferor, Indenture Trustee or Servicer
under any of the Basic Documents or otherwise and Trustee shall have
no obligation or liability to perform the obligations of Trust under
this Agreement or the Basic Documents that are required to be
performed by Manager under the Management Agreement, Indenture
Trustee under the Indenture or Servicer under the Pooling and
Servicing Agreement; and
(g) Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement or any Basic Document, at the request,
order or direction of any of the Certificateholders unless such
Certificateholders have offered to Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that
may be incurred by Trustee therein or thereby. The right of Trustee
to perform any discretionary act enumerated in this Agreement or in
any Basic Document shall not be construed as a duty, and Trustee
shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
SECTION 7.2. Furnishing of Documents. Trustee shall furnish to the
Certificateholders promptly upon receipt of a written request therefor, and at
the expense of the Certificateholders, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to Trustee under the Basic Documents.
SECTION 7.3. Representations and Warranties. Trustee hereby
represents and warrants to Depositor, for the benefit of the Certificateholders,
that:
(a) it is a [banking corporation] duly organized and validly
existing in good standing under the laws of the State of Delaware,
with the requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement.
(b) it has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who
is duly authorized to execute and deliver this Agreement on its
behalf.
(c) the consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time) a default under, the certificate of
17
incorporation or by-laws of Trustee, or any indenture, agreement or
other instrument to which Trustee is a party or by which it is bound;
or violate any Federal or Delaware law governing the banking or trust
powers of Trustee; or, to the best of Trustee's knowledge, violate
any order, rule or regulation applicable to Trustee of any court or
of any Federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over Trustee
or its properties.
SECTION 7.4. Reliance; Advice of Counsel. (a) Trustee shall incur no
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any party as
conclusive evidence that such resolution has been duly adopted by such body
and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein,
Trustee may for all purposes hereof rely on a certificate, signed by the
president, any vice president, the treasurer or other authorized officers of
the relevant party as to such fact or matter, and such certificate shall
constitute full protection to Trustee for any action taken or omitted to be
taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Basic Documents, Trustee: (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and Trustee
shall not be liable for the conduct or misconduct of such agents or attorneys
if such agents or attorneys shall have been selected by Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled Persons to be selected with reasonable care and employed by it.
Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such Persons and which opinion or advice states
that such action is not contrary to this Agreement or any Basic Document.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created [Name of Trustee]
acts solely as Trustee hereunder and not in its individual capacity and all
Persons having any claim against Trustee by reason of the transactions
contemplated by this Agreement or any Basic Document shall look only to the
Trust Estate for payment or satisfaction thereof.
SECTION 7.6. Trustee Not Liable for Trust Certificates or The Trust
Estate. The recitals contained herein and in the Certificates (other than the
18
signature and counter-signature of Trustee on the Trust Certificates) shall be
taken as the statements of Depositor, and Trustee assumes no responsibility
for the correctness thereof. Trustee makes no representations as to the
validity or sufficiency of this Agreement, of any Basic Document or of the
Trust Certificates (other than the signature and countersignature, if any, of
Trustee on the Trust Certificates) or the Notes, or of any of the Trust Estate
or related documents. Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any of the Trust Estate, or the perfection and priority of any security
interest created by any of the Trust Estate in any of the Equipment or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Estate or its ability to generate the payments to be
distributed to the Certificateholders under this Agreement or the Noteholders
under the Indenture, including: (a) the existence, condition and ownership of
any Equipment, (b) the existence and enforceability of any insurance thereon,
(c) the existence and contents of any Lease on any computer or other record
thereof, (d) the validity of the assignment of any of the Trust Estate to
Trust or of any intervening assignment, (e) the completeness of any Lease, (f)
the performance or enforcement of any Lease, and (g) the compliance by
Depositor or Servicer with any warranty or representation made under any Basic
Document or in any related document or the accuracy of any such warranty or
representation or any action of Manager, Indenture Trustee or Servicer or any
subservicer taken in the name of Trustee.
SECTION 7.7. Trustee May Not Own Notes. Trustee shall not, in its
individual capacity, but may in a fiduciary capacity, become the owner of
Notes or otherwise extend credit to Issuer. Trustee may otherwise deal with
Depositor, Manager, Indenture Trustee and Servicer with the same rights as it
would have if it were not Trustee.
ARTICLE VIII
Compensation of Trustee
SECTION 8.1. Trustee's Fees and Expenses. Trustee shall receive as
compensation for its services hereunder such fees as have been separately
agreed upon before the date hereof between Depositor and Trustee, and Trustee
shall be entitled to be reimbursed by Depositor for its other reasonable
expenses hereunder, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as Trustee
may employ in connection with the exercise and performance of its rights and
its duties hereunder.
SECTION 8.2. Indemnification. Depositor shall be liable as primary
19
obligor for, and shall indemnify Trustee and its successors, assigns, agents
and servants (collectively, the "Indemnified Parties") from and against any
and all liabilities, obligations, losses, damages, taxes, claims, actions and
suits, and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses"), which may at any time be imposed on, incurred by
or asserted against Trustee or any Indemnified Party in any way relating to or
arising out of this Agreement, the Basic Documents, the Trust Estate, the
administration of the Trust Estate or the action or inaction of Trustee
hereunder, except only that Depositor shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or resulting
from: (a) its own willful misconduct or negligence or (b) with respect to
Trustee, the inaccuracy of any representation or warranty contained in Section
7.3 expressly made by Trustee. The indemnities contained in this Section shall
survive the resignation or termination of Trustee or the termination of this
Agreement. In any event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section, Trustee's choice of legal counsel
shall be subject to the approval of Depositor, which approval shall not be
unreasonably withheld.
SECTION 8.3. Payments to Trustee. Any amounts paid to Trustee
pursuant to this Article VIII shall be deemed not to be a part of the Trust
Estate immediately after such payment. Trustee shall also be entitled to
interest on all advances at a rate equal to: (a) the rate publicly announced
by [Name of Trustee], as its prime rate from time to time, plus (b) [3.5]%.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement
(other than Article VIII) and Trust shall terminate and be of no further force
or effect upon the final distribution by Trustee of all moneys or other
property or proceeds of the Trust Estate in accordance with the Indenture, the
Pooling and Servicing Agreement and Article V. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder, shall not: (x)
operate to terminate this Agreement or Trust, (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
all or any part of Trust or Trust Estate or (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), neither Depositor nor any
Certificateholder shall be entitled to revoke or terminate Trust.
(c) Notice of any termination of Trust, specifying the Payment Date
upon
20
which the Certificateholders shall surrender their Trust Certificates to
Paying Agent for payment of the final distribution and cancellation, shall be
given promptly by Trustee by letter to the Certificateholders mailed within
five Business Days of receipt of notice of such termination from Servicer
given pursuant to the Indenture stating: (i) the Payment Date upon which final
payment of the Trust Certificates shall be made upon presentation and
surrender of the Trust Certificates at the office of Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Trust
Certificates at the office of Paying Agent therein specified. Trustee shall
give such notice to the Certificate Registrar (if other than Trustee) and
Paying Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Trust Certificates, Paying Agent shall cause
to be distributed to Certificateholders amounts distributable on such Payment
Date pursuant to Section 5.2.
In the event that all of Certificateholders shall not surrender their
Trust Certificates for cancellation within six months after the date specified
in the above mentioned written notice, Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Trust
Certificates for cancellation and to receive the final distribution with
respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in
Trust after exhaustion of such remedies shall be distributed by Trustee to
Depositor.
(d) Upon the termination of Trust, Trustee shall cause the
Certificate of Trust to be canceled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section 3810
(or successor section) of the Trust Statute.
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 10.1. Eligibility Requirements for Trustee. Trustee shall at
all times: (a) be a corporation satisfying the provisions of Section 3807(a)
of the Trust Statute and Section 26(a)(1) of the Investment Company Act of
1940, as amended, (b) be authorized to exercise corporate trust powers, (c)
have a combined capital and surplus of at least $50,000,000 and be subject to
supervision
21
or examination by Federal or state authorities, and (d) have (or have a parent
that has) a rating of at least "Baa3" by Xxxxx'x. Trustee shall not, in its
individual capacity, but may in a fiduciary capacity, purchase any of the
Notes or otherwise extend credit to Trust. If such corporation shall publish
reports of condition at least annually, pursuant to law or the requirements of
the aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. In case at any time Trustee shall cease to be
eligible in accordance with this Section, Trustee shall resign immediately in
the manner and with the effect specified in Section 10.2.
SECTION 10.2. Resignation or Removal of Trustee. Trustee may at any
time resign and be discharged from the trusts hereby created by giving written
notice thereof to Manager. Upon receiving such notice of resignation, Manager
shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If at any time Trustee shall cease to be eligible in accordance with
Section 10.1 and shall fail to resign after written request therefor by
Manager, or if at any time Trustee shall be legally unable to act, or shall be
adjudged bankrupt or insolvent, or a receiver of Trustee or of its property
shall be appointed, or any public officer shall take charge or control of
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then Manager may remove Trustee. If Manager shall
remove Trustee under the authority of the preceding sentence, Manager shall
promptly appoint a successor Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the outgoing Trustee so removed
and one copy to the successor Trustee and payment of all fees owed to the
outgoing Trustee.
Any resignation or removal of Trustee and appointment of a successor
Trustee pursuant to this Section shall not become effective until acceptance
of appointment by the successor Trustee pursuant to Section 10.3 and payment
of all fees and expenses owed to the outgoing Trustee. Manager shall provide
notice of such resignation or removal of Trustee to each of the Rating
Agencies.
SECTION 10.3. Successor Trustee. Any successor Trustee appointed
pursuant to Section 10.2 shall execute, acknowledge and deliver to Manager and
to its predecessor Trustee an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Trustee
22
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties, and obligations of its predecessor under this Agreement, with like
effect as if originally named as Trustee. The predecessor Trustee shall upon
payment of its fees and expenses deliver to the successor Trustee all
documents and statements and monies held by it under this Agreement; and
Manager and the predecessor Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Trustee all such rights, powers,
duties and obligations.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Trustee pursuant to
this Section, Manager shall mail notice of such appointment to all
Certificateholders, Indenture Trustee, the Noteholders and the Rating
Agencies. If Manager shall fail to mail such notice within 10 days after
acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of Manager.
SECTION 10.4. Merger or Consolidation of Trustee. Any corporation or
other entity into which Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of
Trustee, shall be the successor of Trustee hereunder; provided, such
corporation shall be eligible pursuant to Section 10.1, without the execution
or filing of any instrument or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; and provided
that Trustee shall mail notice of such merger or consolidation to the Rating
Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of Trust or any Equipment may at the time be located, Manager and Trustee
acting jointly shall have the power and may execute and deliver all
instruments to appoint one or more Person(s) approved by Trustee to act as
co-trustee(s), jointly with Trustee, or separate trustee(s), of all or any
part of the Trust Estate, and to vest in such Person(s), in such capacity and
for the benefit of the Certificateholders, such title to the Trust Estate, or
any part thereof, and, subject to the other provisions of this Section, such
powers, duties, obligations, rights and trusts as Manager and Trustee may
consider necessary or desirable. If Manager shall not have joined in such
appointment within 15 days after the
23
receipt by it of a request so to do, Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as a successor trustee
pursuant to Section 10.1 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon Trustee shall be conferred or imposed upon and exercised
or performed by Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without Trustee joining in such
act), except to the extent that under any law of any jurisdiction in
which any particular act(s) are to be performed, Trustee shall be
incompetent or unqualified to perform such act(s), in which event
such rights, powers, duties and obligations (including the holding of
title to the Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of
Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) Manager and Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, Trustee. Each such instrument shall be filed with Trustee and a
copy thereof given to Manager.
24
Any separate trustee or co-trustee may at any time appoint Trustee as
its agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on its behalf and in its name. If any separate trustee or co-trustee shall
die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Trustee shall have no obligation to determine whether a co-trustee or
separate trustee is legally required in any jurisdiction in which any part of
the Trust Estate may be located.
ARTICLE XI
Miscellaneous
SECTION 11.1. Supplements and Amendments. This Agreement may be
amended from time to time by a written amendment duly executed and delivered
by Depositor and Trustee, with prior written notice to the Rating Agencies,
without the consent of any of the Noteholders or the Certificateholders, to
cure any ambiguity, to correct or supplement any provisions in this Agreement
or for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by Depositor and
Trustee, with prior written notice to the Rating Agencies, with the written
consent of Holders of Notes evidencing not less than 66-2/3% of the Outstanding
Principal Amount of the Notes and the written consent of Holders of
Certificates evidencing not less than 66-2/3% of the Certificate Balance, for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided, that
no such amendment shall: (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on the Trust
Estate or distributions that shall be required to be made for the benefit of
the Noteholders or the Certificateholders or (b) reduce the aforesaid
percentage of the Outstanding Principal Amount and the Certificate Balance
required to consent to any such amendment, without the consent of the holders
of all the outstanding Notes and Certificates.
Promptly after the execution of any such amendment or consent (or, in
the
25
case of the Rating Agencies, 10 days prior thereto), Trustee shall furnish
written notification of the substance of such amendment or consent to each
Certificateholder, Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders,
Noteholders or Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders provided
for in this Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable requirements as Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied. Trustee may, but
shall not be obligated to, enter into any such amendment that affects
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2. No Legal Title to Trust Estate in Certificateholders.
The Certificateholders shall not have legal title to any part of the Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
Articles V and IX. No transfer, by operation of law or otherwise, of any
right, title or interest of Certificateholders in, to and under their
ownership interest in the Trust Estate shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting
or to the transfer to it of legal title to any part of the Trust Estate.
SECTION 11.3. Limitations on Rights of Others. Except for Section
2.7, the provisions of this Agreement are solely for the benefit of Trustee,
Depositor, the Certificateholders, Manager and, to the extent expressly
provided herein, Indenture Trustee and the Noteholders, and nothing in this
Agreement (other than Section 2.7), whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
26
permitted by the terms hereof, all notices shall be in writing, personally
delivered or mailed by certified mail, postage prepaid and return receipt
requested, and shall be deemed to have been duly given upon receipt: (i) if to
Trustee, addressed to the Corporate Trust Office with a copy to [
], Attention: [ ]; (ii) if to Depositor, addressed
to Provident Lease Receivables Corporation, 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000, Attention: [Corporate Secretary]; or, as to each party, at such
other address as shall be designated by such party in a written notice to the
other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder
receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 11.6. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, Depositor
and its successors, Trustee and its successors and each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by an
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8. Covenants of Depositor. If: (a) the Certificate Balance
shall be reduced by the Cumulative Loss Amount and (b) any litigation with
claims in excess of $1,000,000 to which Depositor is a party that shall be
reasonably likely to result in a material judgment against Depositor that
Depositor will not be able to satisfy shall be commenced by a
Certificateholder during the period beginning nine months following the
commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in a
final judgment against Depositor, such judgment has been satisfied), Depositor
shall not pay any dividend to ILC, or make any distribution on or in respect
of its capital stock to ILC, or repay the principal
27
amount of any indebtedness of Depositor held by ILC, unless: (i) after giving
effect to such payment, distribution or repayment, Depositor's liquid assets
shall not be less than the amount of actual damages claimed in such litigation
or (ii) the Rating Agency Condition shall have been satisfied with respect to
any such payment, distribution or repayment. Depositor will not at any time
institute against Trust any bankruptcy proceedings under any United States
Federal or state bankruptcy or similar law in connection with any obligations
relating to the Trust Certificates, the Notes, the Trust Agreement or any of
the Basic Documents.
SECTION 11.9. No Petition. Trustee, on behalf of Trust, by entering
into this Agreement, each Certificateholder, by accepting a Trust Certificate,
and Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against Depositor or Trust, or join in any institution against Depositor or
Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Trust Certificates, the Notes, this Agreement or any of the Basic Documents.
SECTION 11.10. No Recourse. Each Certificateholder by accepting a
Trust Certificate acknowledges that such Certificateholder's Trust
Certificates represent beneficial interests in Trust only and do not represent
interests in or obligations of Transferor, Servicer, Manager, Trustee,
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Trust Certificates or the Basic Documents.
SECTION 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.12. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 11.13. Manager. Manager is authorized to execute on behalf of
Trust all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of Trust to prepare, file or deliver pursuant
to this Agreement and the Basic Documents. Upon written request, Trustee shall
execute and deliver to Manager a power of attorney appointing Manager its
agent and attorney-in-fact to execute all such documents, reports, filings,
instruments, certificates and opinions.
28
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
[NAME OF TRUSTEE]
as Trustee
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
PROVIDENT LEASE RECEIVABLES
CORPORATION
as Depositor
By:
--------------------------------
Name:
-------------------------
Title:
------------------------
29
EXHIBIT A
to Trust Agreement
FORM OF TRUST CERTIFICATES
--------------------------
REGISTERED $__________(1)
NUMBER R-___ CUSIP NO. _________
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A
BENEFIT PLAN (AS DEFINED BELOW).
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
____% LEASE-BACKED CERTIFICATE
evidencing a fractional undivided interest in Trust, as defined below, the
property of which includes a pool of leases and leased equipment transferred
to Trust by Provident Lease Receivables Corporation.
(This Trust Certificate does not represent an interest in or obligation of
Provident Lease Receivables Corporation, Information Leasing Corporation, or
any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT [Name of Holder] is the registered owner of a
_____________ DOLLAR ($___________) nonassessable, fully-paid, fractional
undivided interest in the Provident Equipment Lease Trust 1998-A ("Trust")
formed by Provident Lease Receivables Corporation, a Delaware corporation
("Transferor").
Trust was created pursuant to a Trust Agreement dated as of September 1, 1998
(the "Trust Agreement"), between Transferor and [Name of Trustee], as trustee
("Trustee"). To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Indenture dated as of
September 1, 1998, among Trust and [Name of Indenture Trustee] as Indenture
Trustee. This Certificate is one of the duly authorized Certificates
designated as "____% Lease- Backed Certificates" (herein called the "Trust
Certificates"). Issued under the Indenture are Notes designated as "___% Class
A-1 Lease-Backed Notes", "____% Class A-2 Lease-Backed Notes" and "____% Class
B Lease-Backed
--------
(1)Denominations of $1,000,000 and integral multiples of $1,000,000 in excess
thereof.
Notes" (collectively, the "Notes"). This Trust Certificate is issued under and
is subject to the terms, provisions and conditions of the Trust Agreement, to
which Trust Agreement the holder of this Trust Certificate by virtue of the
acceptance hereof assents and by which holder is bound.
Each holder of this Trust Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders as described in the Pooling and
Servicing Agreement and the Indenture.
It is the intent of Transferor, Servicer, Certificateholders and the
Certificate Owners that, for purposes of Federal income, state and local
income and franchise and any other income taxes measured in whole or in part
by income, Trust will be treated as a partnership, the assets of which are the
assets held by Trust, and the Certificateholders will be treated as partners
in that partnership. Depositor and the other Certificateholders by acceptance
of a Trust Certificate (and the Certificate Owners by acceptance of a
beneficial interest in a Trust Certificate), agree to treat, and to take no
action inconsistent with the treatment of, the Trust Certificates for such tax
purposes as partnership interests in Trust.
Each Certificateholder or Certificate Owner, by its acceptance of a
Trust Certificate or a beneficial interest in a Trust Certificate,
acknowledges and agrees that Transferor is authorized to determine whether or
not to cause Trust to make the election contemplated in Internal Revenue
Service Notice 95-14 to elect that Trust be classified as a partnership for
Federal income tax purposes in the event that the ability to make such
election becomes available to Trust, and acknowledges and agrees that
Transferor is authorized to direct Trustee to take such acts or actions as may
be required to effectuate such election. Each Certificateholder or Certificate
Owner, by its acceptance of a Trust Certificate or a beneficial interest in a
Trust Certificate, agrees to take such actions (and direct Trustee to take
such acts or actions) as Transferor or Trustee shall reasonably request in
order to effectuate such election.
Each Certificateholder or Certificate Owner, by its acceptance of a
Trust Certificate or, in the case of a Certificate Owner, a beneficial
interest in a Trust Certificate, covenants and agrees that such
Certificateholder or Certificate Owner, as the case may be, will not at any
time institute against Transferor or Trust, or join in any institution against
Transferor or Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Notes, the Trust Agreement
or any of the Basic Documents.
2
The Trust Certificates do not represent an obligation of, or an
interest in, Transferor, Servicer, Information Leasing Corporation, Trustee or
any affiliates of any of them and no recourse may be had against such parties
or their assets, except as may be expressly set forth or contemplated herein
or in the Trust
Agreement or the Basic Documents.
The Certificates may not be acquired by or for the account of: (i) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to
the provisions of Title 1 of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (a "Benefit Plan"). By accepting and holding this
Certificate, the Holder hereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of Trustee, by manual signature, this Trust
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Pooling and Servicing Agreement or be valid for any purpose.
This Trust Certificate shall be construed in accordance with
the laws of the State of Delaware, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
3
IN WITNESS WHEREOF, Trustee on behalf of Trust and not in
its individual capacity has caused this Trust Certificate to be duly executed.
PROVIDENT EQUIPMENT LEASING
TRUST 1998-A
By: [NAME OF TRUSTEE]
not in its individual capacity, but
solely as Trustee
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Trust Agreement.
[NAME OF TRUSTEE]
as Trustee
By:
------------------------------------
Authorized Officer
OR
By: [ ]
as Authenticating Agent
By:
------------------------------------
Authorized Officer
Date: September 1, 1998
5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
_______________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
_______________________________________________________________________________
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
____________________________________________________________________Attorney to
transfer said Trust Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: _____________________*
Signature Guaranteed:
_____________________*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
6
EXHIBIT B
to Trust Agreement
CERTIFICATE OF TRUST OF
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
--------------------------------------
THIS Certificate of Trust of PROVIDENT EQUIPMENT LEASE TRUST 1998-A
(the "Trust"), dated as of September 1, 1998, is being duly executed and filed
by [NAME OF TRUSTEE], a Delaware [ ], as trustee, to form a trust under the
Delaware Business Trust Act (12 Del. Code Section 3801 et seq.).
1. Name. The name of the trust formed hereby is PROVIDENT
EQUIPMENT LEASE TRUST 1998-A.
2. Delaware Trustee. The name and business address of the trustee of
Trust in the State of Delaware is [ ], Wilmington, Delaware
[ ], Attention: Trust Department.
3. Effective Date. This Certificate of Trust will be effective
September 1, 1998.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of Trust,
has executed this Certificate of Trust as of the date first above written.
[NAME OF TRUSTEE],
not in its individual capacity, but solely as
trustee under a Trust Agreement dated as of
September 1, 1998
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
EXHIBIT C
to Trust Agreement
CERTIFICATE DEPOSITORY AGREEMENT
--------------------------------
