EXHIBIT 10.4
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PROVIDENT EQUIPMENT LEASE TRUST 1998-A
MANAGEMENT AGREEMENT
among
PROVIDENT EQUIPMENT LEASE TRUST 1998-A,
as Issuer,
and
INFORMATION LEASING CORPORATION,
as Manager,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Indenture Trustee.
Dated as of September 1, 1998
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TABLE OF CONTENTS
Section Page
-------- ----
1. Duties of Manager....................................................2
(a) Duties with Respect to the Indenture and the
Depository Agreement..................................2
(b) Duties with Respect to Trust...........................4
(c) Non-Ministerial Matters................................6
2. Records..............................................................6
Compensation.........................................................6
4. Additional Information To Be Furnished to Issuer.....................7
5. Independence of Manager..............................................7
6. No Joint Venture.....................................................7
7. Other Activities of Manager..........................................7
8. Term of Agreement; Resignation and Removal of Manager................7
9. Action upon Termination, Resignation or Removal......................9
10. Notices..............................................................9
11. Amendments..........................................................10
12. Successors and Assigns..............................................11
13. Governing Law.......................................................12
14. Headings............................................................12
15. Counterparts........................................................12
16. Severability........................................................12
17. Not Applicable to Information Leasing Corporation in Other
Capacities.........................................................12
18. Limitation of Liability of Trustee and Indenture Trustee............12
19. Third-Party Beneficiary.............................................13
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TABLE OF CONTENTS
(continued)
Section Page
20. Indemnification.....................................................13
ii
MANAGEMENT AGREEMENT dated as of September 1, 1998, among
PROVIDENT EQUIPMENT LEASE TRUST 1998-A ("Issuer"), INFORMATION LEASING
CORPORATION, an Ohio corporation, as Manager ("Manager"), and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity but solely as Indenture Trustee ("Indenture Trustee").
RECITALS
WHEREAS Issuer is issuing 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") pursuant to the Indenture, dated as of
September 1, 1998 (as amended and supplemented from time to time in
accordance with the provisions thereof, "Indenture"), between Issuer and
Indenture Trustee (capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned such terms in Appendix X to the
Indenture);
WHEREAS Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership
interests of the Issuer, including: (i) the Pooling and Servicing
Agreement, (ii) a Depository Agreement, dated September 25, 1998 (the
"Depository Agreement"), among Issuer, Indenture Trustee, Manager and The
Depository Trust Company, (iii) the Indenture, and (iv) the Trust Agreement
(the Pooling and Servicing Agreement, the Depository Agreement, the
Indenture and the Trust Agreement being hereinafter referred to
collectively as the "Related Agreements");
WHEREAS pursuant to the Related Agreements, Issuer and Trustee are
required to perform certain duties in connection with: (a) the Notes and
the collateral therefor pledged pursuant to the Indenture (the
"Collateral") and (b) the beneficial ownership interests in Issuer (the
registered Holders of such interests being referred to herein as the
"Owners");
WHEREAS Issuer and Trustee desire to have Manager perform certain
of the duties of Issuer and Trustee referred to in the preceding clause,
and to provide such additional services consistent with this Agreement and
the Related Agreements as Issuer and Trustee may from time to time request;
WHEREAS Manager has the capacity to provide the services required
hereby and is willing to perform such services for Issuer and Trustee on
the terms set forth herein;
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NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. Duties of Manager.
(a) Duties with Respect to the Indenture and the Depository
Agreement. Manager shall perform all of its duties as Manager and the
duties of Issuer and Trustee under the Depository Agreement. In addition,
Manager shall consult with Trustee regarding the duties of Issuer and
Trustee under the Indenture and the Depository Agreement. Manager shall
monitor the performance of Issuer and shall advise Trustee when action is
necessary to comply with Issuer's or Trustee's duties under the Indenture
and the Depository Agreement. Manager shall prepare for execution by Issuer
or shall cause the preparation by other appropriate persons of all such
documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of Issuer or Trustee to prepare, file or deliver pursuant
to the Indenture or the Depository Agreement. In furtherance of the
foregoing, Manager shall take all appropriate action that is the duty of
Issuer or Trustee to take pursuant to the Indenture or the Depository
Agreement, including, without limitation, such of the foregoing as are
required with respect to the following matters (references in this Section
are to sections of the Indenture):
(i) the preparation of all Officer's Certificates and
Opinions of Counsel with respect to any requests by Issuer to
Indenture Trustee to take any action under the Indenture (Section
1.2);
(ii) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery
of the same to Indenture Trustee (Section 2.2);
(iii) the duty to cause the Note Register to be kept and
to give Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Register (Section 2.3);
(iv) the review of evidence of the destruction, loss or
theft of any Notes and the preparation or obtaining of documents
or instruments required for the authentication of replacement
Notes and the delivery of same to Indenture Trustee (Section 2.4);
(v) the furnishing to Indenture Trustee with the names
and addresses of Noteholders during any period when Indenture
Trustee is not the Note Registrar (Section 2.11);
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(vi) the preparation of Issuer Orders and all other
actions necessary with respect to investment and reinvestment of
funds in the Trust Accounts (Section 3.1(c));
(vii) the preparation and delivery of Issuer Requests for
the release of Leases and interests in the related Equipment from
the lien of the Indenture (Section 4.3);
(viii) the compliance with any written directive of
Indenture Trustee with respect to the sale of the Trust Estate in
a commercially reasonable manner if an Event of Default shall have
occurred and be continuing (Sections 6.3 and 6.16);
(ix) the delivery of any Noteholder waiver of an Event of
Default to Indenture Trustee (Section 6.13);
(x) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to Noteholders of notices with respect
to such supplemental indentures (Sections 7.8, 7.9, 7.10, 9.1, 9.2
and 9.3);
(xi) the determination of the need to appoint a
co-trustee or separate trustee, the selection of such trustee, the
preparation of all instruments and agreements necessary or proper
for the appointment of such trustee and the preparation of all
instruments and agreements necessary to accept the resignation or
removal such trustee (Section 7.12);
(xii) the notification of Indenture Trustee if the Notes
become listed on any exchange (Section 7.15);
(xiii) the maintenance of an office for registration of
transfer or exchange of Notes (Section 8.2);
(xiv) the duty to cause newly appointed Paying Agents, if
any, to deliver to Indenture Trustee the instrument specified in
the Indenture regarding funds held in trust (Section 8.3);
(xv) the direction to the Paying Agents to deposit moneys
with Indenture Trustee (Section 8.3);
(xvi) the obtaining and preservation of Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the
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Notes, the Collateral and each other instrument and
agreement included in the Trust Estate (Section 8.4);
(xvii) the preparation and delivery of all documents,
agreements, approvals, notices, Officer's Certificates, and
Opinions of Counsel necessary for any merger or consolidation of
Issuer (Section 8.4);
(xviii) the preparation of all supplements, amendments,
financing statements, continuation statements, instruments of
further assurance and other instruments, in accordance with
Section 8.5 of the Indenture, necessary to protect the Trust
Estate (Section 8.5);
(xix) the notification of Indenture Trustee and the
Noteholders of a Servicer Default pursuant to the Pooling and
Servicing Agreement (Section 8.7(d));
(xx) the delivery of notice to Indenture Trustee and the
Rating Agencies of each Event of Default under the Indenture and
each default by Servicer or Transferor under the Pooling and
Servicing Agreement and each default by ILC under the Contribution
Agreement (Section 8.9);
(xxi) the preparation, execution and filing with the
Commission and Indenture Trustee of documents required to be filed
on a periodic basis with, and summaries thereof as may be required
by rules and regulations prescribed by, the Commission and the
transmission of such summaries, as necessary, to the Noteholders
(Section 8.12);
(xxii) the execution and delivery of new Notes conforming
to any supplemental indenture (Section 9.5);
(xxiii) the monitoring of Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of
an Officers' Certificate and the obtaining of the Opinion of
Counsel relating thereto (Section 10.1);
(b) Duties with Respect to Trust. (i) In addition to the duties of
Manager set forth above, Manager shall perform such calculations, and shall
prepare for execution by Issuer or Trustee or shall cause the preparation
by other appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions, as it shall be the duty of Issuer
or Trustee to perform, prepare, file or deliver pursuant to the Related
Agreements, and at the request of Trustee shall take all appropriate action
that it is the duty of Issuer or Trustee to take pursuant to the Related
Agreements. Subject to Section 5 of this Agreement, and in accordance with
the directions of Trustee, Manager shall administer, perform or supervise
the performance of such other activities in connection with the Collateral
(including the Related Agreements)
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as are not covered by any of the foregoing and as are expressly requested by
Trustee and are reasonably within the capability of Manager.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, Manager shall be responsible
for promptly notifying Trustee in the event that any withholding
tax is imposed on Trust's payments (or allocations of income) to
an Owner as contemplated in Section 5.2(c) of the Trust Agreement.
Any such notice shall specify the amount of any withholding tax
required to be withheld by Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, Manager shall be responsible
for performance of the duties of Trustee set forth in Sections
5.5(a), (b), (c) and (d), the penultimate sentence of Section 5.5,
and 5.6(a) of the Trust Agreement with respect to, among other
things, accounting and reports to Owners; provided, however, that
Trustee shall retain responsibility for the distribution of the
Schedule K-1s necessary to enable each Owner to prepare its
Federal and state income tax returns.
(iv) Manager shall satisfy its obligations with respect
to clauses (ii) and (iii) by retaining, at the expense of the
Trust payable by Servicer, a firm of independent certified public
accountants (the "Accountants") acceptable to Trustee, which
Accountants shall perform the obligations of Manager thereunder.
In connection with clause (ii), Accountants will provide prior to
November 25, 1998, a letter in form and substance satisfactory to
Trustee as to whether any tax withholding is then required and, if
required, the procedures to be followed with respect thereto to
comply with the requirements of the Code. Accountants shall be
required to update the letter in each instance that any additional
tax withholding is subsequently required or any previously
required tax withholding shall no longer be required.
(v) Manager shall perform the duties of Manager specified
in Section 10.2 of the Trust Agreement required to be performed in
connection with the resignation or removal of Trustee, and any
other duties expressly required to be performed by Manager under
the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its
other obligations under this Agreement, Manager may enter into
transactions with or otherwise deal with any of its affiliates;
provided, however, that the terms of any such transactions or
dealings shall be in accordance with any directions received from
Issuer and shall be, in Manager's opinion, no less favorable to
Issuer than would be available from unaffiliated parties.
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(vii) Manager hereby agrees to execute on behalf of
Issuer all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of Issuer to
prepare, file or deliver pursuant to the Basic Documents or
otherwise by law.
(c) Non-Ministerial Matters. (i) With respect to matters that in
the reasonable judgment of Manager are non-ministerial, Manager shall not
take any action unless within a reasonable time before the taking of such
action Manager shall have notified Trustee of the proposed action and
Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial
matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by Issuer and
the compromise of any action, claim or lawsuit brought by or
against Issuer (other than in connection with the collection of
the Trust Estate);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Trustees pursuant to the
Indenture or the appointment of successor Managers or successor
Servicers, or the consent to the assignment by the Note Registrar,
Paying Agent or Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, Manager shall not be obligated to, and shall not, (x)
make any payments to the Noteholders under the Related Agreements,
(y) sell the Trust Estate pursuant to Section 6.3 of the Indenture
or (z) take any other action that Issuer directs Manager not to
take on its behalf.
2. Records. Manager shall maintain appropriate books of account
and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by Issuer, Indenture
Trustee and Depositor at any time during normal business hours.
3. Compensation. As compensation for the performance of Manager's
obligations under this Agreement and as reimbursement for its expenses
related thereto, Manager shall be entitled to $500 per quarter payable in
arrears on each Payment Date, which payment shall be solely an obligation
of Servicer.
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4. Additional Information To Be Furnished to Issuer. Manager shall
furnish to Issuer from time to time such additional information regarding
the Collateral as Issuer shall reasonably request.
5. Independence of Manager. For all purposes of this Agreement,
Manager shall be an independent contractor and shall not be subject to the
supervision of Issuer or Trustee with respect to the manner in which it
accomplishes the performance of its obligations hereunder. Unless expressly
authorized by Issuer, Manager shall have no authority to act for or
represent Issuer or Trustee in any way (other than as permitted hereunder)
and shall not otherwise be deemed an agent of Issuer or Trustee.
6. No Joint Venture. Nothing contained in this Agreement: (i)
shall constitute Manager and either of Issuer or Trustee as members of any
partnership, joint venture, association, syndicate, unincorporated business
or other separate entity, (ii) shall be construed to impose any liability
as such on any of them or (iii) shall be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
7. Other Activities of Manager. Nothing herein shall prevent
Manager or its Affiliates from engaging in other businesses or, in its sole
discretion, from acting in a similar capacity as an Manager for any other
Person even though such Person may engage in business activities similar to
those of Issuer, Trustee or Indenture Trustee.
8. Term of Agreement; Resignation and Removal of Manager.
(a) This Agreement shall continue in force until the dissolution
of Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e), Manager may resign its duties
hereunder by providing Issuer, Indenture Trustee and Servicer with at least
60 days' prior written notice.
(c) Subject to Section 8(e), Issuer may remove Manager without
cause by providing Manager, Indenture Trustee and Servicer with at least 60
days' prior written notice.
(d) Subject to Section 8(e), at the sole option of Issuer, Manager
may be removed immediately upon written notice of termination from Issuer
to Manager, Indenture Trustee and Servicer if any of the following events
shall occur:
(i) Manager shall default in the performance of any of
its duties under this Agreement and, after notice of such default,
shall not cure such
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default within ten days (or, if such default cannot be cured in
such time, shall not give within ten days such assurance of cure
as shall be reasonably satisfactory to Issuer);
(ii) a court having jurisdiction in the premises shall
enter a decree or order for relief, and such decree or order shall
not have been vacated within 60 days, in respect of Manager in any
involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect or appoint a
receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official for Manager or any substantial part of its
property or order the winding-up or liquidation of its affairs; or
(iii) Manager shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for
relief in an involuntary case under any such law, or shall consent
to the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official for Manager or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become
due.
Manager agrees that if any of the events specified in clauses (ii)
or (iii) of this Section shall occur, it shall give written notice thereof
to Issuer, Servicer and Indenture Trustee within seven days after the
happening of such event.
(e) Upon Manager's receipt of notice of termination, pursuant to
Sections 8(c) or (d), or Manager's resignation in accordance with this
Agreement, the predecessor Manager shall continue to perform its functions
as Manager under this Agreement, in the case of termination, only until the
date specified in such termination notice or, if no such date is specified
in a notice of termination, until receipt of such notice and, in the case
of resignation, until the later of: (x) the date 45 days from the delivery
to Issuer, Indenture Trustee and Servicer of written notice of such
resignation (or written confirmation of such notice) in accordance with
this Agreement and (y) the date upon which the predecessor Manager shall
become unable to act as Manager, as specified in the notice of resignation
and accompanying Opinion of Counsel. In the event of Manager's termination
hereunder, Issuer shall appoint a successor Manager acceptable to Indenture
Trustee, and the successor Manager shall accept its appointment by a
written assumption in form acceptable to Indenture Trustee. In the event
that a successor Manager has not been appointed at the time when the
predecessor Manager has ceased to act as Manager in accordance with this
Section, Indenture Trustee without further action shall automatically be
appointed the successor Manager and Indenture Trustee shall be entitled to
the compensation specified in Section 3. Notwithstanding the above,
Indenture Trustee
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shall, if it shall be unable so to act, appoint or petition a court of
competent jurisdiction to appoint any established institution having a net
worth of not less than $50,000,000 and whose regular business shall include
the performance of functions similar to those of Manager, as the successor
to Manager under this Agreement.
(f) Upon appointment, the successor Manager (including Indenture
Trustee acting as successor Manager) shall be the successor in all respects
to the predecessor Manager and shall be subject to all the
responsibilities, duties and liabilities arising thereafter relating
thereto placed on the predecessor Manager and shall be entitled to the
compensation specified in Section 3 and all the rights granted to the
predecessor Manager by the terms and provisions of this Agreement.
(g) Except when and if Indenture Trustee is appointed successor
Manager, Manager may not resign unless it is prohibited from serving as
such by law as evidenced by an Opinion of Counsel to such effect delivered
to Indenture Trustee. No resignation or removal of Manager pursuant to this
Section shall be effective until: (i) a successor Manager shall have been
appointed by Issuer and (ii) such successor Manager shall have agreed in
writing to be bound by the terms of this Agreement in the same manner as
Manager is bound hereunder.
(h) The appointment of any successor Manager shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
9. Action upon Termination, Resignation or Removal. Promptly upon
the effective date of termination of this Agreement pursuant to Section
8(a), or the resignation or removal of Manager pursuant to Section 8(b) or
(c), respectively, Manager shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. Manager shall forthwith upon such termination
pursuant to Section 8(a) deliver to Issuer all property and documents of or
relating to the Collateral then in the custody of Manager. In the event of
the resignation or removal of Manager pursuant to Section 8(b) or (c),
respectively, Manager shall cooperate with Issuer and Indenture Trustee and
take all reasonable steps requested to assist Issuer and Indenture Trustee
in making an orderly transfer of the duties of Manager.
10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
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(a) if to Issuer or Trustee , to
Provident Equipment Lease Trust 1998-A
c/o First Union Trust Company, National
Association
One Xxxxxx Xxxxxx, 0xx Xxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Administration
with a copy to:
Information Leasing Corporation
c/o The Provident Bank
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Treasury Management Services
(b) if to Manager, to
Information Leasing Corporation
c/o The Provident Bank
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Treasury Management Services
(c) if to Indenture Trustee, to
Norwest Bank Minnesota, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services/Asset-Backed
Administration
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid,
or hand-delivered to the address of such party as provided above.
11. Amendments. This Agreement may be amended from time to time by
a written amendment duly executed and delivered by Issuer, Manager and
Indenture Trustee, with the written consent of Trustee, but without the
consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement provisions of this Agreement or for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement
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or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that such amendment shall not, as
evidenced by an Opinion of Counsel satisfactory to Indenture Trustee,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder.
This Agreement may also be amended from time to time by Issuer,
Manager and Indenture Trustee with the written consent of Trustee,
Noteholders holding Notes evidencing not less than 662/3% of the
Outstanding Principal Amount of the Notes and the 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, however, that no
such amendment shall (i) 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 are required to be made for the benefit of the
Noteholders or the Certificateholders or (ii) reduce the aforesaid
percentage of the holders of Notes and Certificates that are required to
consent to any such amendment, without the consent of the holders of all
the outstanding Notes and Certificates. Notwithstanding the foregoing,
Manager may not amend this Agreement without the permission of the
Depositor, which permission shall not be unreasonably withheld.
Promptly after the execution of any such amendment or consent (or,
in the case of the Rating Agencies, 10 days prior thereto), Manager shall
furnish written notification of the substance of such amendment or consent
to each Certificateholder, Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of the
Certificateholders or the Noteholders 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.
12. Successors and Assigns. This Agreement may not be assigned by
Manager unless such assignment is previously consented to in writing by
Issuer and Trustee and subject to the satisfaction of the Rating Agency
Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee
hereunder in the same manner as Manager is bound hereunder. Notwithstanding
the foregoing, this Agreement may be assigned by Manager without the
consent of Issuer or Trustee to a corporation or other organization that is
a successor (by merger, consolidation or purchase of assets) to Manager,
provided that such successor organization executes and delivers to Issuer,
Trustee and Indenture Trustee an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said
assignment in the
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same manner as Manager is bound hereunder. Subject to the foregoing, this
Agreement shall bind any successors or assigns of the parties hereto.
13. 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.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts,
all of which when so executed shall together constitute but one and the
same agreement.
16. 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.
17. Not Applicable to Information Leasing Corporation in Other
Capacities. Nothing in this Agreement shall affect any obligation
Information Leasing Corporation may have in any other capacity.
18. Limitation of Liability of Trustee and Indenture Trustee. (a)
Notwithstanding anything contained herein to the contrary, this instrument
has been countersigned by First Union Trust Company, National Association,
not in its individual capacity but solely in its capacity as Trustee of
Issuer, and in no event shall First Union Trust Company, National
Association, in its individual capacity, or any beneficial owner of Issuer
have any liability for the representations, warranties, covenants,
agreements or other obligations of Issuer hereunder, as to all of which
recourse shall be had solely to the assets of Issuer. For all purposes of
this Agreement, in the performance of any duties or obligations of Issuer
thereunder, Trustee shall be subject to, and entitled to the benefits of,
the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by Norwest Bank Minnesota, National
Association, not in its individual capacity but solely as Indenture
Trustee, and in no event shall Norwest Bank Minnesota, National Association
have any liability for the representations, warranties, covenants,
agreements or other obligations of Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of Issuer.
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19. Third-Party Beneficiary. Trustee is a third-party beneficiary to
this Agreement and is entitled to the rights and benefits hereunder and may
enforce the provisions hereof as if it were a party hereto.
20. Indemnification. Manager shall indemnify Trustee and Indenture
Trustee (and their officers, directors, employees and agents) for, and hold
them harmless against, any losses, liability or expense, including
attorneys' fees reasonably incurred by them, incurred without negligence or
bad faith on their part, arising out of or in connection with (i) actions
taken by either of them pursuant to instructions given by Manager pursuant
to this Agreement or (ii) the failure of Manager to perform its obligations
hereunder. The indemnities contained in this Section shall survive the
termination of this Agreement and the resignation or removal of Manager,
Trustee or Indenture Trustee.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
PROVIDENT EQUIPMENT LEASE TRUST
1998-A
By: FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Trustee on behalf of Issuer and on its
own behalf as Trustee under the
Trust Agreement,
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Indenture Trustee,
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice-President
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INFORMATION LEASING CORPORATION,
as Manager,
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
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