EXHIBIT 10.1
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PROVIDENT EQUIPMENT LEASE TRUST 1998-A
TRUST AGREEMENT
between
PROVIDENT LEASE RECEIVABLES CORPORATION
and
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
Dated as of September 1, 1998
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Table of Contents
Page
ARTICLE I
Definitions
SECTION 1.1. Capitalized Terms..............................................
SECTION 1.2. Other Definitional Provisions..................................
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........6
SECTION 3.6. Persons Deemed Certificateholders..............................7
SECTION 3.7. Access to List of Certificateholders' Names and Addresses......7
SECTION 3.8. Maintenance of Office or Agency................................8
SECTION 3.9. Appointment of Paying Agent....................................8
SECTION 3.10. [Reserved].....................................................8
SECTION 3.11. Definitive Certificates.......................................8
Page
ARTICLE IV
Actions by Trustee
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters.....................................10
SECTION 4.2. Action by the Certificateholders with Respect to
Certain Matters.....................................11
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy........11
SECTION 4.4. Restrictions on Certificateholders' Power......................11
SECTION 4.5. Majority Control...............................................11
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1. Establishment of Trust Account.................................12
SECTION 5.2. Applications of Trust Funds....................................12
SECTION 5.3. Method of Payment..............................................13
SECTION 5.4. No Segregation of Moneys; No Interest..........................13
SECTION 5.5. Accounting and Reports to the Noteholders, Certificateholder
the Internal Revenue Service and Others.............13
SECTION 5.6. Signature on Returns; Tax Matters Partner......................14
ARTICLE VI
Authority and Duties of Trustee
SECTION 6.1. General Authority..............................................14
SECTION 6.2. General Duties.................................................15
SECTION 6.3. Action upon Instruction........................................15
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions........................................16
SECTION 6.5. No Action Except Under Specified Documents
or Instructions.....................................16
SECTION 6.6. Restrictions...................................................16
ARTICLE VII
Concerning Trustee
SECTION 7.1. Acceptance of Trusts and Duties................................17
SECTION 7.2. Furnishing of Documents........................................18
SECTION 7.3. Representations and Warranties.................................18
SECTION 7.4. Reliance; Advice of Counsel....................................19
SECTION 7.5. Not Acting in Individual Capacity..............................19
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Page
SECTION 7.6. Trustee Not Liable for Trust Certificates or The Trust Estate..19
SECTION 7.7. Trustee May Not Own Notes......................................20
ARTICLE VIII
Compensation of Trustee
SECTION 8.1. Trustee's Fees and Expenses................................... 20
SECTION 8.2. Indemnification................................................20
SECTION 8.3. Payments to Trustee............................................21
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1. Termination of Trust Agreement.................................21
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 10.1. Eligibility Requirements for Trustee..........................22
SECTION 10.2. Resignation or Removal of Trustee.............................23
SECTION 10.3. Successor Trustee.............................................23
SECTION 10.4. Merger or Consolidation of Trustee............................24
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.................24
ARTICLE XI
Miscellaneous
SECTION 11.1. Supplements and Amendments....................................26
SECTION 11.2. No Legal Title to Trust Estate in Certificateholders..........27
SECTION 11.3. Limitations on Rights of Others...............................27
SECTION 11.4. Notices.......................................................27
SECTION 11.5. Severability..................................................28
SECTION 11.6. Separate Counterparts.........................................28
SECTION 11.7. Successors and Assigns........................................28
SECTION 11.8. Covenants of Depositor........................................28
SECTION 11.9. No Petition...................................................29
SECTION 11.10. No Recourse..................................................29
SECTION 11.11. Headings.....................................................29
SECTION 11.12. Governing Law................................................29
SECTION 11.13. Manager......................................................29
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EXHIBITS
EXHIBIT A Form of Trust Certificate
iv
TRUST AGREEMENT dated as of September 1, 1998, between PROVIDENT
LEASE RECEIVABLES CORPORATION, a Delaware corporation, as Depositor, and
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION, a national banking
association, 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 ▇▇▇ 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 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;
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(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, solely for income and franchise tax purposes, the
Trust shall be disregarded as a separate entity and that the Trust
Certificates and the Notes shall be treated as debt. If the Trust
Certificates are not respected as debt by the appropriate tax authorities,
however, then they shall be treated as partnership interests in Trust which
would be treated as
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a partnership, with the assets of the partnership being the Trust 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, Trustee, on behalf of the Trust, will take all appropriate
actions for income and franchise tax purposes, consistent with the Trust
being treated as a disregarded entity. Effective as of the date hereof,
Trustee shall have all rights, powers and duties set forth herein 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; 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 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
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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. If the Trust
Certificates are treated as partnership interests rather than as debt, then
the following provisions shall apply. Interest payments on the Certificates
at the Certificate 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 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
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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 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 Indenture Trustee, as Trustee's authenticating
agent, by the manual signature of one of its authorized signatories; such
certificate of authentication shall constitute conclusive
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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. Trustee 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 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
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charge that may be imposed in connection with any registration of transfer
or exchange of Trust Certificates.
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 "protected
purchaser" as defined in 8- 303(a) of the UCC, 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.
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 an Authorized Officer of 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
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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 by one of its Authorized Officers, 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 respect. Paying Agent shall initially be Norwest
Bank Minnesota, National Association, 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.
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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. (a) Each Certificateholder,
by acceptance of a Trust Certificate, shall be deemed to represent and
warrant that either (a) it is not (i) an employee benefit plan (as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") that is subject to the provisions of Title I of ERISA,
(ii) a plan (as described in Section 4975(e)(1) of the Code or (iii) an
entity whose underlying assets include "plan assets" by reason of a plan's
investment in the entity (including an insurance company general account
that is treated as including "plan assets") or (b) such person is an
insurance company using the assets of its general account to purchase the
Trust Certificate if the portion of the assets so used to purchase the
Trust Certificate that constitutes the assets of "benefit plan investors"
as defined in 29 C.F.R. ss. 2510.3- 101(f)(2) is less than 25% of the total
of such assets so used, and the purchase and holding of the Trust
Certificates meets all the requirements of and is eligible for exemptive
relieve under Prohibited Transaction Exemption 95-60; provided that, with
the consent of Transferor, Trust Certificates may be sold to purchasers
that do not satisfy either clause (a) or clause (b) if such purchaser makes
such additional representations as may be requested by Transferor in order
for the Transferor to reasonably determine that, after giving effect to
such sale, the assets of Trust will not be treated as plan assets of any
Benefit Plan."
(b) No sale, transfer, assignment or other conveyance of a Trust
Certificate or any interest therein shall be made if Servicer shall have
advised Trustee, Certificate Registrar and the transferring
Certificateholder (and, in the case of a pledge as to which the pledgor has
given notice to Servicer, the pledgee) as provided below that, in its
reasonable judgment, (A) at the time of such transfer (or purported
transfer) any interest in Trust (or economic interest therein, other than
indebtedness issued by Trust) is traded on an established securities market
or (B) after such transfer (or purported transfer) (I) Trust would have
more than 90 Certificateholders or (II) any interest in Trust was issued in
a transaction (or transactions) that was required to be registered under
the Securities Act (or, in the case of an offering and sale of interests in
Trust exempt from registration under the Securities Act by reason of
Regulation S, the offering and sale would have been required to be
registered under the Securities Act if the interests had been offered and
sold within the United States). For purposes of clause (A) of the preceding
sentence, an established securities market is (w) a national securities
exchange that is either registered under Section 6 of the Exchange Act or
exempt from registration because of the limited volume of transactions, (x)
a foreign securities exchange that, under
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the law of the jurisdiction where it is organized, satisfies regulatory
requirements that are analogous to the regulatory requirements of the
Exchange Act, (y) a regional or local exchange, or (z) an interdealer
quotation system that regularly disseminates firm buy or sell quotations by
identified brokers or dealers by electronic means or otherwise. None of
Servicer, Depositor, Trustee or Certificate Registrar (or any Affiliate
thereof) shall take any action which could result in any interest in the
Trust (or economic interest therein) being traded on an established
securities market within the meaning of the preceding sentence. For
purposes of determining whether the Trust will have more than 90
Certificateholders, each Person owning an interest in a partnership
(including any entity treated as a partnership for federal income tax
purposes), a grantor trust or an S corporation (each such entity, a
"flow-through entity") that owns, directly or through other flow-through
entities, an interest in the Trust shall be treated as a Certificateholder
unless Servicer reasonably determines that less than substantially all of
the value of such Person's interest in the flow-through entity is
attributable to the flow-through entity's interest (direct or indirect) in
the Trust, or unless Servicer determines in its sole discretion that it is
not a principal purpose of the use of the tiered arrangement to permit the
90- Certificateholder limitation to be avoided.
(c) No sale, transfer, assignment or other conveyance of a Trust
Certificate or any interest therein shall be made to any Person unless such
Person is a "United States Person" as defined in Section 7701(a)(30) of the
Code.
(d) No sale, transfer, assignment or other conveyance of a Trust
Certificate or any interest therein shall be made to any Person unless (A)
such Person is a Qualified Institutional Buyer (a "QIB") that purchases (1)
for its own account or (2) for the account of a QIB, and is, in either
case, aware that such sale, transfer, assignment or other conveyance is
being made as reliance on Rule 144A under the Securities Act or (B) such
sale, transfer, assignment or other conveyance is made in reliance upon any
other exemption from the Securities Act if the transferor provides an
opinion of counsel to Provident Lease Receivables Corporation and the
Trustee to the effect that the proposed transfer is exempt from the
registration requirements of the Securities Act and the securities or blue
sky laws of any applicable state.
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
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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) 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) [reserved];
(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.
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SECTION 4.4. Restrictions on Certificateholders' Power. The
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.
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(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. If the Trust
Certificates are treated as partnership interests rather than as debt, the
following provisions shall apply. 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 be
required by the Code and applicable Treasury
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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.
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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) to the Certificateholders requesting
instruction
15
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 or
(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.
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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, bad faith or gross negligence (or ordinary negligence
in the handling of funds) 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 grossly 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;
17
(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 national banking association duly formed and
validly existing under the laws of the United States of America,
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 articles of incorporation or by-laws of
Trustee, or any indenture, agreement or other instrument to
18
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 First Union
Trust Company, National Association, 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 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
19
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
obligor for, and shall indemnify Trustee (whether individually or as
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
20
(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 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 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:
21
(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 not all of Certificateholders shall 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 not all the Trust Certificates shall 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.
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
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 or
examination by Federal or state authorities, and (d) have a rating of at
least "Baa3" by ▇▇▇▇▇'▇. 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.
22
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. Notwithstanding the appointment of any successor trustee, the
outgoing Trustee shall nevertheless be entitled to payment of all fees and
expenses owed to such 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 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, expenses and any other
amounts owing to it hereunder or under any other Basic Document 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.
23
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 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
24
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.
25
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 662/3% of the
Outstanding Principal Amount of the Notes and the written consent of
Holders of Certificates evidencing not less than 662/3% 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.
26
Promptly after the execution of any such amendment or consent (or,
in the 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.
Prior to the execution of any amendment to this Agreement, 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
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; (ii) if to Depositor,
addressed to Provident Lease Receivables Corporation, c/o The Provident
Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Treasury Services Department; 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 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
28
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 New York, 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.
29
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.
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in
its individual capacity, but
solely as Trustee of The
Provident Equipment Lease Trust
1998-A
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
PROVIDENT LEASE RECEIVABLES
CORPORATION
as Depositor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
30
EXHIBIT A
to Trust Agreement
FORM OF TRUST CERTIFICATES
--------------------------
REGISTERED $___________1
NUMBER R-___ CUSIP NO. ▇▇▇▇▇▇▇▇▇
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OF AMERICA. THE
CERTIFICATEHOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS
CERTIFICATE (OR ANY INTEREST HEREIN) MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE TRUST AGREEMENT AND
APPLICABLE LAWS AND IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE STATE SECURITIES LAWS AND ONLY (A) TO AN ENTITY WHICH SUCH
PURCHASER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED
UNDER RULE 144A OF THE SECURITIES ACT ("RULE 144A") THAT PURCHASES (1) FOR
ITS OWN ACCOUNT OR (2) FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER,
THAT IS, IN EITHER CASE, AWARE THAT THE RESALE, PLEDGE OR TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, OR (B) IN RELIANCE UPON ANY OTHER EXEMPTION
FROM THE SECURITIES ACT IF THE TRANSFEROR PROVIDES AN OPINION OF COUNSEL TO
PROVIDENT LEASE RECEIVABLES CORPORATION AND THE TRUSTEE TO THE EFFECT THAT
THE PROPOSED TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND THE SECURITIES OR BLUE SKY LAWS OF ANY APPLICABLE STATE.
THE PURCHASER OF THIS CERTIFICATE AGREES THAT IT WILL, AND EACH SUBSEQUENT
TRANSFEREE IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE OF THE
RESALE RESTRICTIONS REFERRED TO ABOVE.
THE CERTIFICATEHOLDER HEREOF, BY ACCEPTING AND HOLDING THIS CERTIFICATE IS
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (A) IT IS NOT (I)
AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME
-------- 1Denominations of $1,000,000 and integral multiples of $1,000 in
excess thereof.
1
SECURITY ACT OF 1974, AS AMENDED ("ERISA") THAT IS SUBJECT TO THE
PROVISIONS OF TITLE I OF ERISA, (II) A PLAN (AS DESCRIBED IN SECTION
4975(E)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"))
OR (III) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON
OF A PLAN'S INVESTMENT IN THE ENTITY (INCLUDING AN INSURANCE COMPANY
GENERAL ACCOUNT THAT IS TREATED AS INCLUDING "PLAN ASSETS") OR (B) SUCH
PERSON IS AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT TO
PURCHASE THE CERTIFICATES, THE PORTION OF THE ASSETS SO USED TO PURCHASE
THE CERTIFICATES THAT CONSTITUTES THE ASSETS OF "BENEFIT PLAN INVESTORS" AS
DEFINED IN 29 C.F.R. ss. 2510.3-101(F)(2) IS LESS THAN 25% OF THE TOTAL OF
SUCH ASSETS SO USED, AND THE PURCHASE AND HOLDING OF THE CERTIFICATES MEETS
ALL THE REQUIREMENTS OF AND IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
PROHIBITED TRANSACTION EXEMPTION 95-60, PROVIDED THAT, WITH THE CONSENT OF
THE TRANSFEROR, CERTIFICATES MAY BE SOLD TO PURCHASERS THAT DO NOT SATISFY
EITHER CLAUSE (A) OR CLAUSE (B) IF EACH SUCH PURCHASER MAKES SUCH
ADDITIONAL REPRESENTATIONS AS MAY BE REQUESTED BY PROVIDENT LEASE
RECEIVABLES CORPORATION (THE "TRANSFEROR") IN ORDER FOR THE TRANSFEROR TO
REASONABLY DETERMINE THAT, AFTER GIVING EFFECT TO SUCH SALE, THE ASSETS OF
THE TRUST WILL NOT BE TREATED AS PLAN ASSETS OF ANY BENEFIT PLAN.
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
6.73% LEASE-BACKED CERTIFICATE
evidencing a fractional undivided interest in Trust, as defined below, the
property of which includes a pool of leases and leased equipment
transferred to Trust by Provident Lease Receivables Corporation.
(This Trust Certificate does not represent an interest in or obligation of
Provident Lease Receivables Corporation, Information Leasing Corporation,
or any of their respective affiliates, except to the extent described
below.)
THIS CERTIFIES THAT [Name of Holder] is the registered owner of a
_____________ DOLLAR ($___________) 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 First Union Trust
Company, National Association, as trustee ("Trustee"). To the extent not
otherwise defined herein, the
2
capitalized terms used herein have the meanings assigned to them in the
Indenture dated as of September 1, 1998, among Trust and Norwest Bank
Minnesota, National Association, as Indenture Trustee. This Certificate is
one of the duly authorized Certificates designated as "6.75% Lease-Backed
Certificates" (herein called the "Trust Certificates"). Issued under the
Indenture are Notes designated as "5.28% Class A-1 Lease-Backed Notes",
"5.78% Class A-2 Lease-Backed Notes", 5.60% Class A-3 Lease-Backed Notes",
"5.75% Class A-4 Lease-Backed Notes" and "6.20% Class B Lease-Backed 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, for income and franchise tax purposes, the
Trust will be disregarded as an entity separate from its owner(s), and that
the Trust Certificates shall be treated as debt. In the event that the
Trust Certificates are not respected as debt by the appropriate tax
authorities, the Certificateholders agree that the Trust Certificates shall
be treated as partnership interests in the Trust.
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.
3
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.
No sale, transfer, assignment or other conveyance of this Trust
Certificate or any interest therein shall be made to any Person unless (x)
such Person is a "United States Person" as defined in Section 7701(a)(30)
of the Code and (y) the Services has determined that, after giving effect
to such sale, transfer, assignment or other conveyance, .there would be no
more that 90 Certificateholders or such transfer is otherwise permitted
pursuant to Section 3.12(b) of the Trust Agreement.
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.
4
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 LEASE
TRUST 1998-A
By: FIRST UNION TRUST
COMPANY, NATIONAL
ASSOCIATION
not in its individual
capacity, but
solely as Trustee
By:_______________________
Name:__________________
Title:_________________
5
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Trust Agreement.
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Trustee
By:_________________________________
Authorized Officer
OR
By: NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Authenticating Agent
By:_________________________________
Authorized Officer
Date: September 30, 1998
6
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.
1