EXHIBIT 1.1
XXX XXXXXX AMERICAN CAPITAL EQUITY OPPORTUNITY TRUST
SERIES 89
TRUST AGREEMENT
Dated: June 8, 1998
This Trust Agreement among Xxx Xxxxxx American Capital Distributors,
Inc., as Depositor, American Portfolio Evaluation Services, a division of Xxx
Xxxxxx American Capital Investment Advisory Corp., as Evaluator, Xxx Xxxxxx
American Capital Investment Advisory Corp., as Supervisory Servicer, and The
Bank of New York, as Trustee, sets forth certain provisions in full and
incorporates other provisions by reference to the document entitled "Xxx Xxxxxx
American Capital Equity Opportunity Trust, Series 87 and Subsequent Series,
Standard Terms and Conditions of Trust, Effective January 27, 1998" (herein
called the "Standard Terms and Conditions of Trust") and such provisions as are
set forth in full and such provisions as are incorporated by reference
constitute a single instrument. All references herein to Articles and Sections
are to Articles and Sections of the Standard Terms and Conditions of Trust.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor, Evaluator, Supervisory Servicer and Trustee agree as
follows:
PART I
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II hereof, all the provisions
contained in the Standard Terms and Conditions of Trust are herein incorporated
by reference in their entirety and shall be deemed to be a part of this
instrument as fully and to the same extent as though said provisions had been
set forth in full in this instrument.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
1. The Securities defined in Section 1.01(24), listed in the
Schedule hereto, have been deposited in trust under this Trust Agreement.
2. The fractional undivided interest in and ownership of each Trust
represented by each Unit is the amount set forth under "Summary of Essential
Financial Information - Fractional Undivided Interest in the Trust per Unit" in
the Prospectus. Such fractional undivided interest may be (a) increased by the
number of any additional Units issued pursuant to Section 2.03, (b) increased or
decreased in connection with an adjustment to the number of Units pursuant to
Section 2.03, or (c) decreased by the number of Units redeemed pursuant to
Section 5.02.
3. The terms "Capital Account Record Date" and "Income Account
Record Date" shall mean the "Record Dates" set forth under "Summary of Essential
Financial Information" in the Prospectus.
4. The terms "Capital Account Distribution Date" and "Income Account
Distribution Date" shall mean the "Distribution Dates" set forth under "Summary
of Essential Financial Information" in the Prospectus.
5. The term "Mandatory Termination Date" shall mean the "Mandatory
Termination Date" set forth under "Summary of Essential Financial Information"
in the Prospectus.
6. The term "Rollover Notification Date" shall mean each of the
"Rollover Notification Dates" set forth under "Summary of Essential Financial
Information" in the Prospectus.
7. The term "Special Redemption Date" shall mean each of the
"Special Redemption Dates" set forth under "Summary of Essential Financial
Information" in the Prospectus.
8. Section 5.02 of the Standard Terms and Conditions of Trust shall
be amended by adding the following to the end of such Section:
"Notwithstanding anything to the contrary herein, unless a
Unitholder properly makes an affirmative election to the contrary
as specified in the Prospectus, each Unitholder will be deemed to
have tendered all Units then owned for redemption to the Trustee
on the first Special Redemption Date and shall have such Units
redeemed on such date as provided herein."
9. Section 6.04(e) is hereby replaced with the following:
(e) (1) Subject to the provisions of subparagraph (2) of this
paragraph, the Trustee may employ agents, sub-custodians, attorneys,
accountants and auditors and shall not be answerable for the default or
misconduct of any such agents, sub-custodians, attorneys, accountants
or auditors if such agents, sub-custodians, attorneys, accountants or
auditors shall have been selected with reasonable care. The Trustee
shall be fully protected in respect of any action under this Indenture
taken or suffered in good faith by the Trustee in accordance with the
opinion of counsel, which may be counsel to the Depositor acceptable to
the Trustee, provided, however that this disclaimer of liability shall
not excuse the Trustee from the responsibilities specified in
subparagraph (2) below. The fees and expenses charged by such agents,
sub-custodians, attorneys, accountants or auditors shall constitute an
expense of the Trust reimbursable from the Income and Capital Accounts
of the affected Trust as set forth in section 6.04 hereof.
(2) The Trustee may place and maintain in the care of an
Eligible Foreign Custodian (which is employed by the Trustee as a
sub-custodian as contemplated by subparagraph (1) of this paragraph (e)
and which may be an affiliate or subsidiary of the Trustee or any other
entity in which the Trustee may have an ownership interest) any
investments (including foreign currencies) for which the primary market
is outside the United States, and such cash and cash equivalents in
amounts reasonably necessary to effect the Trust's transactions in such
investments, provided that:
(a) The Trustee shall perform all duties assigned to
the Foreign Custody Manager by Rule 17f-5 under the Investment
Company Act of 1940 (17 CFR ss. 270.17f-5) ("Rule 17f-5"), as
now in effect or as such rule may be amended in the future.
The Trustee shall not delegate such duties.
(b) The Trustee shall exercise reasonable care,
prudence and diligence such as a person having responsibility
for the safekeeping of Trust assets would exercise, and shall
be liable to the Trust for any loss occurring as a result of
its failure to do so.
(c) The Trustee shall indemnify the Trust and hold
the Trust harmless from and against any risk of loss of Trust
assets held in accordance with the foreign custody contract.
(d) The Trustee shall maintain and keep current
written records regarding the basis for the choice or
continued use of a particular Eligible Foreign Custodian
pursuant to this subparagraph for a period of not less than
six years from the end of the fiscal year in which the Trust
was terminated, the first two years in an easily accessible
place. Such records shall be available for inspection by
Unitholders and the Securities and Exchange Commission at the
Trustee's offices at all reasonable times during its usual
business hours.
(3) "Eligible Foreign Custodian" shall have the meaning
assigned to it in Rule 17f-5.
(4) "Foreign Custody Manager" shall have the meaning assigned
to it in Rule 17f-5.
IN WITNESS WHEREOF, Xxx Xxxxxx American Capital Distributors, Inc. has
caused this Trust Agreement to be executed by one of its Vice Presidents or
Assistant Vice Presidents and its corporate seal to be hereto affixed and
attested by its Secretary or one of its Vice Presidents or Assistant
Secretaries, American Portfolio Evaluation Services, a division of Xxx Xxxxxx
American Capital Investment Advisory Corp., and Xxx Xxxxxx American Capital
Investment Advisory Corp., have each caused this Trust Indenture and Agreement
to be executed by their respective President or one of their respective Vice
Presidents and the corporate seal of each to be hereto affixed and attested to
by the Secretary, Assistant Secretary or one of their respective Vice Presidents
or Assistant Vice Presidents and The Bank of New York, has caused this Trust
Agreement to be executed by one of its Vice Presidents and its corporate seal to
be hereto affixed and attested to by one of its Assistant Treasurers all as of
the day, month and year first above written.
Xxx Xxxxxx American Capital Distributors, Inc.
By XXXXX X. XXXXX
Vice President, Associate General Counsel
and Assistant Secretary
Attest:
By XXXXX XXXXXX
Assistant Secretary
American Portfolio Evaluation Services, a division of Xxx Xxxxxx
American Capital Investment Advisory Corp.
By XXXXXX X. XXXXXXXXX
President
Attest
By XXXXX X. XXXXX
Assistant Secretary
Xxx Xxxxxx American Capital Investment Advisory Corp.
By XXXXXX X. XXXXXXXXX
President
Attest
By XXXXX X. XXXXX
Assistant Secretary
The Bank of New York
By XXXXXXX XXXXXXXX
Vice President
Attest
By XXXXXXX XXXXX
Assistant Treasurer
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
XXX XXXXXX AMERICAN CAPITAL EQUITY OPPORTUNITY TRUST, SERIES 89
(Note: Incorporated herein and made a part hereof are the "Portfolios" as set
forth in the Prospectus.)
