Exhibit 4.1(a)
MITSUI VENDOR LEASING ASSET TRUST 1998-1
TRUST AGREEMENT, dated as of October 1, 1998, between Mitsui Vendor
Leasing Funding Corp. II, a Delaware corporation, as depositor (the "Depositor")
and Wilmington Trust Company, a Delaware banking corporation, not in its
individual capacity but solely as trustee (the "Trustee"). The Depositor and the
Trustee hereby agree as follows:
1. The Trust created hereby shall be known as "Mitsui Vendor Leasing
Asset Trust 1998-1," (the "Trust") in which name the Trustee may conduct the
business of the Trust, make and execute contracts, and xxx and be sued.
2. (a) The Depositor hereby assigns, transfers, conveys and sets over
to the trustee the sum of $1. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Section 3801 et seq. and that this document
constitute the governing instrument of the Trust. The Trustee is hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in the form attached hereto as Exhibit A.
(b) The Trustee accepts the trust hereby created and agrees to perform
its duties hereunder with respect to the same but only upon the terms of this
Trust Agreement. The Trustee shall not be answerable or accountable hereunder,
except for its own willful misconduct, bad faith or negligence. In particular,
but not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(i) The Trustee shall not be liable for any error of
judgement made by an officer or employee of the Trustee;
(ii) No provision of this Trust Agreement shall require the
Trustee to expend or risk funds or otherwise incur any financial liability in
the performance of any of its rights or powers hereunder, if the 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;
(iii) The Trustee shall not be responsible for or in respect
of the genuineness, form or value of the Trust property, the validity or
sufficiency of this Trust Agreement or for the due execution hereof by the
Depositor; and
(iv) In the event that the Trustee is unsure of the course
of action to be taken by it hereunder, the Trustee may request instructions from
the Depositor and to the extent the Trustee follows such instructions in good
faith it shall not be liable to any person. In the event that no instructions
are provided within the time requested by the Trustee, it shall have no duty or
liability for its failure to take any action, or for any action it takes not
contrary to this Trust Agreement as it shall deem to be in the best interests of
the Trust.
(c) The Trustee shall incur no liability to anyone in acting upon
any document believed by it to be genuine and believed by it to be signed by the
proper party or parties. The Trustee may accept a certified copy of a resolution
of the board of directors or other governing body of any corporate 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 manner
of ascertainment of which is not specifically prescribed herein, the Trustee may
for all purposes hereof rely on a certificate, signed by the Depositor, as to
such fact or matter, and such certificate shall constitute full protection to
the Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(d) In the exercise or administration of the trusts hereunder,
the Trustee (i) may act directly or through agents or attorneys, and the Trustee
shall not be liable for the default or misconduct of such agents or attorneys if
such agents or attorneys shall have been selected by the 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, and it shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the advice or opinion of any such counsel, accountants or other such
persons and not contrary to this Trust Agreement.
(e) Except as expressly provided in this Section 2, in accepting
and performing the trusts hereby created, the trustee acts solely as trustee
hereunder and not in its individual capacity, and all persons having any claim
against the Trustee by reason of the transactions contemplated by this Trust
Agreement shall look only to the Trust's property for payment or satisfaction
thereof.
3. The Depositor hereby agrees to reimburse the Trustee for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and to indemnify the trustee and its successors, assigns, agents and
servants (the "Indemnified Persons") from and against any and all losses,
damages, liabilities, claims, actions, and suits, and any and all reasonable
costs, expenses and disbursements (including the reasonable fees and expenses of
counsel) of any kind and nature whatsoever (collectively, "Expenses"), to the
extent that such Expenses arise out of or are imposed upon or asserted at any
time against such Indemnified Persons with respect to the performance of this
Trust Agreement, the creation, operation or termination of the Trust or the
transactions contemplated hereby; provided, however, that the Depositor shall
not be liable for or required to indemnify any Indemnified Person for any
Expenses which are a result of the willful misconduct, bad faith or negligence
of such Indemnified Person or the Trustee. The obligations of the Depositor
under this Section 3 shall survive the termination of this Trust Agreement or
the removal or resignation of the Trustee. The Trustee's choice of legal counsel
shall be subject to the approval of the Depositor, which approval shall not be
unreasonably withheld.
4. The Depositor and the Trustee will enter into an amended and
restated Trust Agreement, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustee shall not
have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or, as instructed by the
Depositor, as may be necessary to obtain prior to such execution and delivery
any licenses, consents or approvals required by applicable law or otherwise.
5. This Trust Agreement may be executed in one or more counterparts.
6. The Trustee may resign upon thirty days prior notice to the
Depositor.
7. This Trustee Agreement shall be governed by and construed in
accordance with the laws of the Sate of Delaware.
[SIGNATURE PAGES FOLLOW]
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.
MITSUI VENDOR LEASING FUNDING
CORP. II, as Depositor
By:_____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY, as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT A
CERTIFICATE OF TRUST OF
MITSUI VENDOR LEASING ASSET TRUST 1998-1
THIS Certificate of Trust of MITSUI VENDOR LEASING ASSET TRUST 1998-1
(the "Trust"), dated as of October 1, 1998, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. Code. Section 3801
et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate of
Trust is Mitsui Vendor Leasing Asset Trust 1998-1.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attn:
Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as trustee
By: _____________________________________
Name:
Title:
