Exhibit 1.1
Xxx Xxxxxx American Capital Equity Opportunity Trust
Series 78
Trust Agreement
Dated: November 10, 1997
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 "Van Xxxxxx Xxxxxxx Equity Opportunity Trust, Series 1
and Subsequent Series, Standard Terms and Conditions of Trust, Effective
November 21, 1991" (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(22), listed in the
Schedule hereto, have been deposited in trust under this Trust
Agreement.
2. The fractional undivided interest in and ownership of the
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. Section 1.01(1) shall be amended to read as follows:
"(1) "Depositor" shall mean Xxx Xxxxxx American Capital
Distributors, Inc. and its successors in interest, or any
successor depositor appointed as hereinafter provided."
4. Section 1.01(3) shall be amended to read as follows:
"(3) "Evaluator" shall mean American Portfolio
Evaluation Services, a division of Xxx Xxxxxx American
Capital Investment Advisory Corp. and its successors in
interest, or any successor evaluator appointed as
hereinafter provided."
5. Section 1.01(4) shall be amended to read as follows:
"(4) "Supervisory Servicer" shall mean Xxx Xxxxxx
American Capital Investment Advisory Corp. and its
successors in interest, or any successor portfolio
supervisor appointed as hereinafter provided."
6. Section 1.01(19) shall be amended to read as follows:
"(19) "Percentage Ratio" shall mean, for each Trust which
will issue additional Units pursuant to Section 2.03
hereof, (a) the percentage relationship among the Equity
Securities based on the number of shares of each Equity
Security per Unit existing immediately prior to such
additional deposit with respect to the Select Equity Trust
and (b) the percentage relationship existing on the
Initial Date of Deposit among the maturity value per Unit
of the Zero Coupon Obligations, each Equity Security per
Unit as a percent of all shares of Equity Securities and
the sum of the maturity value per Unit of the Zero Coupon
Obligations and all Equity Securities attributable to each
Unit with respect to the Select Equity and Treasury Trust.
The Percentage Ratio shall be adjusted to the extent
necessary, and may be rounded, to reflect the occurrence
of a stock dividend, a stock split or a similar event
which affects the capital structure of the issuer of an
Equity Security."
7. Section 1.01(34) shall be amended to read as follows:
"(34) The term "Rollover Unitholder" shall be defined as
set forth in Section 5.05, herein."
8. Section 1.01(35) shall be amended to read as follows:
"(35) The "Rollover Notification Date" shall be defined
as set forth in the Prospectus under "Summary of Essential
Information."
9. Section 1.01(36) shall be amended to read as follows:
"(36) The term "Rollover Distribution" shall be defined
as set forth in Section 5.05, herein."
10. Section 1.01(37) shall be amended to read as follows:
"(37) The term "Distribution Agent" shall refer to the
Trustee acting in its capacity as distribution agent
pursuant to Section 5.05 herein."
11. Section 1.01(38) shall be amended to read as follows:
"(38) The term "Special Redemption and Liquidation
Period" shall be redefined as "Special Redemption Date"
and shall be as set forth in the Prospectus under "Summary
of Essential Information - Special Redemption Date."
12. The Initial Date of Deposit for the Trust is the date
hereof.
13. Section 2.01(c) of the Standard Terms and Conditions of
Trust is hereby amended by adding the following at the conclusion
thereof:
"If any Contract Obligations requires settlement in a
foreign currency, in connection with the deposit of such
Contract Obligation the Depositor will deposit with the
Trustee either an amount of such currency sufficient to
settle the contract or a foreign exchange contract in such
amount which settles concurrently with the settlement of
the Contract Obligation and cash or a Letter of Credit in
U.S. dollars sufficient to perform such foreign exchange
contract."
14. Notwithstanding anything to the contrary appearing in the
Standard Terms and Conditions of Trust, "Xxx Xxxxxx American Capital
Equity Opportunity Trust" will replace "Select Equity Trust."
15. The second sentence in the second paragraph of Section
3.11 shall be revised as follows: "However, should any issuance,
exchange or substitution be effected notwithstanding such rejection
or without an initial offer, any securities, cash and/or property
received shall be deposited hereunder and shall be promptly sold, if
securities or property, by the Trustee unless the Depositor advises
the Trustee to keep such securities, cash or properties."
16. Article III of the Standard Terms and Conditions of Trust
is hereby amended by inserting the following paragraph which shall
be entitled Section 3.15.:
"Section 3.15. Foreign Exchange Transactions; Reclaiming
Foreign Taxes. The Trustee shall use reasonable efforts
to reclaim or recoup any amounts of non-U.S. tax paid by
the Trust or withheld from income received by the Trust to
which the Trust may be entitled as a refund."
17. Article III of the Standard Terms and Conditions of Trust
is hereby amended by inserting the following paragraph which shall
be entitled Section 3.17.:
"Section 3.17. Deferred Sales Charge. If the prospectus
related to the Trust specifies a deferred sale charge, the
Trustee shall, on the dates specified in and as permitted
by such Prospectus, withdraw from the Capital Account, an
amount per Unit specified in such Prospectus and credit
such amount to a special non-Trust account maintained at
the Trustee out of which the deferred sales charge will be
distributed to the Depositor. If the balance in the
Capital Account is insufficient to make any such
withdrawal, the Trustee shall, as directed by the
Depositor, either advance funds in an amount equal to the
proposed withdrawal and be entitled to reimbursement of
such advance upon the deposit of additional monies in the
Capital Account, sell Securities and credit the proceeds
thereof to such special Depositor's account or credit (if
permitted by law) Securities in kind to such special
Depositor's Account. If a Unitholder redeems Units prior
to full payment of the deferred sales charge, the Trustee
shall, if so provided in the related Prospectus, on the
Redemption Date, withhold from the Redemption Price
payable to such Unitholder an amount equal to the unpaid
portion of the deferred sales charge and distribute such
amount to such special Depositor's Account. The Depositor
may at any time instruct the Trustee in writing to
distribute to the Depositor cash or Securities previously
credited to the special Depositor's Account."
18. Article III of the Standard Terms and Conditions of Trust
is hereby amended by inserting the following paragraph which shall
be entitled Section 3.16.:
"Section 3.16. Foreign Exchange Transactions; Foreign
Currency Exchange. Unless the Depositor shall otherwise
direct, whenever funds are received by the Trustee in
foreign currency, upon the receipt thereof or, if such
funds are to be received in respect of a sale of
Securities, concurrently with the contract of the sale for
the Security (in the latter case the foreign exchange
contract to have a settlement date coincident with the
relevant contract of sale for the Security), the Depositor
shall enter into a foreign exchange contract for the
conversion of such funds to U.S. dollars. The Depositor
shall have no liability for any loss or depreciation
resulting from such action taken."
19. Article IV, Section 4.01(b) of the Standard Terms and
Conditions of Trust is hereby deleted and replaced in its entirety
with the following:
"(b) During the initial offering period such
Evaluation shall be made in the following manner: if the
Securities are listed on a national or foreign securities
exchange, such Evaluation shall generally be based on the
last available sale price on or immediately prior to the
Evaluation Time on the exchange which is the principal
market therefor, which shall be deemed to be the New York
Stock Exchange if the Securities are listed thereon
(unless the Evaluator deems such price inappropriate as a
basis for evaluation) or, if there is no such available
sale price on such exchange at the last available ask
price of the Equity Securities. If the Securities are not
so listed or, if so listed, the principal market therefor
is other than on such exchange or there is no such
available sale price on such exchange, such Evaluation
shall generally be based on the following methods or any
combination thereof whichever the Evaluator deems
appropriate: (i) in the case of Equity Securities, on the
basis of the current ask price on the over-the-counter
market (unless the Evaluator deems such price
inappropriate as a basis for evaluation), (ii) on the
basis of current offering prices for the Zero Coupon
Obligations as obtained from investment dealers or brokers
who customarily deal in securities comparable to those
held by the Fund, (iii) if offering prices are not
available for the Zero Coupon Obligations or the Equity
Securities, on the basis of offering or ask price for
comparable securities, (iv) by determining the valuation
of the Zero Coupon Obligations or the Equity Securities on
the offering or ask side of the market by appraisal or (v)
by any combination of the above. If the Trust holds
Securities denominated in a currency other than U.S.
dollars, the Evaluation of such Security shall be
converted to U.S. dollars based on current offering side
exchange rates (unless the Evaluator deems such prices
inappropriate as a basis for valuation). As used herein,
the closing sale price is deemed to mean the most recent
closing sale price on the relevant securities exchange
immediately prior to the Evaluation time. For each
Evaluation, the Evaluator shall also confirm and furnish
to the Trustee and the Depositor, on the basis of the
information furnished to the Evaluator by the Trustee as
to the value of all Trust assets other than Securities,
the calculation of the Trust Fund Evaluation to be
computed pursuant to Section 5.01."
20. Article IV, Section 4.01(c) of the Standard Terms and
Conditions of Trust is hereby deleted and replaced in its entirety
with the following:
(c) For purposes of the Trust Fund Evaluations
required by Section 5.01 in determining Redemption Value
and Unit Value, Evaluation of the Securities shall be made
in the manner described in Section 4.01(b), on the basis
of current bid prices for the Zero Coupon Obligations, the
bid side value of the relevant currency exchange rate
expressed in U.S. dollars and, except in those cases in
which the Equity Securities are listed on a national or
foreign securities exchange and the last available sale
prices are utilized, on the basis of the last available
bid price of the Equity Securities.
21. Article V, Section 5.01 of the Standard Terms and
Conditions of Trust is hereby amended to add the following at the
conclusion of the first paragraph thereof:
"Amounts receivable by the Trust in foreign currency shall
be converted by the Trustee to U.S. dollars based on
current exchange rates, in the same manner as provided in
Section 4.01(b) or 4.01(c), as applicable, for the
conversion of the valuation of foreign Equity Securities,
and the Evaluator shall report such conversion with each
Evaluation made pursuant to Section 4.01."
22. The following Section 5.05 shall be added:
"Section 5.05. Rollover of Units. (a) If the Depositor shall
offer a subsequent series of the Trusts (the "New Series"), the
Trustee shall, on each Rollover Notification Date and at the
Depositor's sole cost and expense, include a form of election (which
may be included in the notice sent to Unitholders specified in
Section 8.02) whereby Unitholders, whose redemption distribution
would be in an amount sufficient to purchase at least one Unit of
the New Series, may elect to have their Units(s) redeemed in kind in
the manner provided in Section 5.02, the Securities included in the
redemption distribution sold, and the cash proceeds applied by the
Distribution Agent to purchase Units of the New Series, all as
hereinafter provided. The Trustee shall honor properly completed
election forms returned to the Trustee, accompanied by any
Certificate evidencing Units tendered for redemption or a properly
completed redemption request with respect to uncertificated Units,
by its close of business five days prior to the Special Redemption
Date.
All Units so tendered by a Unitholder (a "Rollover Unitholder")
shall be redeemed and canceled on the Special Redemption Date.
Subject to payment by such Rollover Unitholder of any tax or other
governmental charges which may be imposed thereon, such redemption
is to be made in kind pursuant to Section 5.02 by distribution of
cash and/or Securities to the Distribution Agent on the Special
Redemption Date of the net asset value (determined on the basis of
the Trust Fund Evaluation as of the Special Redemption Date in
accordance with Section 4.01) multiplied by the number of Units
being redeemed (herein called the "Rollover Distribution"). Any
Securities that are made part of the Rollover Distribution shall be
valued for purposes of the redemption distribution as of the Special
Redemption Date.
All Securities included in a Unitholder's Rollover Distribution
shall be sold by the Distribution Agent on the Special Redemption
Date specified in the Prospectus pursuant to the Depositor's
direction, and the Distribution Agent shall employ the Depositor as
broker in connection with such sales. For such brokerage services,
the Depositor shall be entitled to compensation at its customary
rates, provided however, that its compensation shall not exceed the
amount authorized by applicable Securities laws and regulations.
The Depositor shall direct that sales be made in accordance with the
guidelines set forth in the Prospectus under the heading "Special
Redemption and Rollover in New Fund." Should the Depositor fail to
provide direction, the Distribution Agent shall sell the Securities
in the manner provided in the prospectus for "less liquid Equity
Securities." The Distribution Agent shall have no responsibility
for any loss or depreciation incurred by reason of any sale made
pursuant to this Section.
Upon each trade date for sales of Securities included in the
Rollover Unitholder's Rollover Distribution, the Distribution Agent
shall, as agent for such Rollover Unitholder, enter into a contract
with the Depositor to purchase from the Depositor Units of the New
Series (if any), at the Depositor's public offering price for such
Units on such day, and at such reduced sales charge as shall be
described in the prospectus for the Trusts. Such contract shall
provide for purchase of the maximum number of Units of the New
Series whose purchase price is equal to or less than the cash
proceeds held by the Distribution Agent for the Unitholder on such
day (including therein the proceeds anticipated to be received in
respect of Securities traded on such day net of all brokerage fees,
governmental charges and any other expenses incurred in connection
with such sale), to the extent Units are available for purchase from
the Depositor. In the event a sale of Securities included in the
Rollover Unitholder's redemption distribution shall not be
consummated in accordance with its terms, the Distribution Agent
shall apply the cash proceeds held for such Unitholder as of the
settlement date for the purchase of Units of the New Series to
purchase the maximum number of units which such cash balance will
permit, and the Depositor agrees that the settlement date for Units
whose purchase was not consummated as a result of insufficient funds
will be extended until cash proceeds from the Rollover Distribution
are available in a sufficient amount to settle such purchase. If
the Unitholder's Rollover Distribution will produce insufficient
cash proceeds to purchase all of the Units of the New Series
contracted for, the Depositor agrees that the contract shall be
rescinded with respect to the Units as to which there was a cash
shortfall without any liability to the Rollover Unitholder or the
Distribution Agent. Any cash balance remaining after such purchase
shall be distributed within a reasonable time to the Rollover
Unitholder by check mailed to the address of such Unitholder on the
registration books of the Trustee. Units of the New Series will be
uncertificated unless and until the Rollover Unitholder requests a
certificate. Any cash held by the Distribution Agent shall be held
in a non-interest bearing account which will be of benefit to the
Distribution Agent in accordance with normal banking procedures.
Neither the Trustee nor the Distribution Agent shall have any
responsibility or liability for loss or depreciation resulting from
any reinvestment made in accordance with this paragraph, or for any
failure to make such reinvestment in the event the Depositor does
not make Units available for purchase.
(b) Notwithstanding the foregoing, the Depositor may, in its
discretion at any time, decide not to offer a New Series in the
future, and if so, this Section 5.05 concerning the Rollover of
Units shall be inoperative.
(c) The Distribution Agent shall receive no fees for
performing its duties hereunder. The Distribution Agent shall,
however, be entitled to receive reimbursement from the Trust for any
and all expenses and disbursements to the same extent as the Trustee
is permitted reimbursement hereunder."
(d) Notwithstanding the foregoing, in lieu of selling
Securities through the Depositor on the open market the Distribution
Agent may sell Securities from a terminating Trust into the
corresponding New Series if those Securities continue to meet the
New Series' strategy. The price for those Securities will be the
closing sale price on the sale date on the exchange where the
Securities are principally traded, as certified by the Sponsor.
23. Article VI, Section 6.01(e) of the Standard Terms and
Conditions of Trust is hereby amended to read as follows:
"(e) (I) Subject to the provisions of subparagraphs (II)
and (III) 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 (i) excuse the
Trustee from the responsibilities specified in subparagraph II
below or (ii) limit the obligation of the Trustee to indemnify
the Trust under subparagraph III 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.
(II) 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 (I) 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) the Trust's foreign securities, cash and
cash equivalents in amounts reasonably necessary to effect the
Trust's foreign securities transactions, provided that:
(1) The Trustee shall have:
(i) determined that maintaining the Trust's assets
in a particular country or countries is consistent with
the best interests of the Trust and the Unitholders;
(ii) determined that maintaining the Trust's assets
with such eligible foreign custodian is consistent with
the best interests of the Trust and the Unitholders; and
(iii) entered into a written contract which is
consistent with the best interests of the Trust and the
Unitholders and which will govern the manner in which such
eligible foreign custodian will maintain the Trust's
assets and which provides that:
(A) The Trust will be adequately indemnified
and its assets adequately insured in the event of
loss (without regard to the indemnity provided by the
Trustee under Section III hereof);
(B) The Trust's assets will not be subject to
any right, charge, security interest, lien or claim
of any kind in favor of the eligible foreign
custodian or its creditors except a claim for payment
for their safe custody or administration;
(C) Beneficial ownership of the Trust's assets
will be freely transferable without the payment of
money or value other than for safe custody or
administration;
(D) Adequate records will be maintained
identifying the assets as belonging to the Trust;
(E) The Trust's independent public accountants
will be given access to records identifying assets of
the Trust or confirmation of the contents of those
records; and
(F) The Trustee will receive periodic reports
with respect to safekeeping of the Trust's assets,
including, but not necessarily limited to,
notification of any transfer to or from the Trustee's
account.
(2) The Trustee shall establish a system to monitor such
foreign custody arrangements to ensure compliance with the
conditions of this subparagraph.
(3) The Trustee, at least annually, shall review and
approve the continuing maintenance of Trust assets in a
particular country or countries with a particular eligible
foreign custodian or particular eligible foreign custodians as
consistent with the best interests of the Trust and the
Unitholders.
(4) 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, and 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.
(5) Where the Trustee has determined that a foreign
custodian may no longer be considered eligible under this
subparagraph or that, pursuant to clause (3) above, continuance
of the arrangement would not be consistent with the best
interests of the Trust and the Unitholders, the Trust must
withdraw its assets from the care of that custodian as soon as
reasonably practicable, and in any event within 180 days of the
date when the Trustee made the determination.
As used in this subparagraph (II),
(1) "foreign securities" include: securities issued
and sold primarily outside the United States by a foreign
government, a national of any foreign country or a corporation
or other organization incorporated or organized under the laws
of any foreign country and securities issued or guaranteed by
the government of the United States or by any state or any
political subdivision thereof or by any agency thereof or by
any entity organized under the laws of the United States or of
any state thereof which have been issued and sold primarily
outside the United States.
(2) "eligible foreign custodian" means:
(a) The following securities depositories and
clearing agencies which operate transnational systems for the
central handling of securities or equivalent book entries
which, by appropriate exemptive order issued by the Securities
and Exchange Commission, have been qualified as eligible
foreign custodians for the Trust but only for so long as such
exemptive order continues in effect: Xxxxxx Guaranty Trust
Company of New York, Brussels, Belgium, in its capacity as
operator of the Euroclear System ("Euroclear"), and Central de
Livraison de Valeurs Mobilires, S.A. ("CEDEL").
(b) Any other entity that shall have been qualified
as an eligible foreign custodian for the foreign securities of
the Trust by the Securities and Exchange Commission by
exemptive order, rule or other appropriate action, commencing
on such date as it shall have been so qualified but only for so
long as such exemptive order, rule or other appropriate action
continues in effect.
The determinations set forth above to be made by the
Trustee should be made only after consideration of all matters
which the Trustee, in carrying out its fiduciary duties, finds
relevant, including, but not necessarily limited to,
consideration of the following:
1. With respect to the selection of the country
where the Trust's assets will be maintained, the Trustee should
consider:
a. Whether applicable foreign law would restrict
the access afforded the Trust's independent public accountants
to books and records kept by an eligible foreign custodian
located in that country;
b. Whether applicable foreign law would restrict
the Trust's ability to recover its assets in the event of the
bankruptcy of an eligible foreign custodian located in that
country;
c. Whether applicable foreign law would restrict
the Trust's ability to recover assets that are lost while under
the control of an eligible foreign custodian located in that
country;
d. The likelihood of expropriation,
nationalization, freezes, or confiscation of the Trust's
assets; and
e. Whether difficulties in converting the Trust's
cash and cash equivalents to U.S. dollars are reasonably
foreseeable.
2. With respect to the selection of an eligible
foreign custodian, the Trustee should consider:
a. The financial strength of the eligible foreign
custodian, its general reputation and standing in the country
in which it is located, its ability to provide efficiently the
custodial services required and the relative cost for those
services;
b. Whether the eligible foreign custodian would
provide a level of safeguards for maintaining the Trust's
assets not materially different from that provided by the
Trustee in maintaining the Trust's securities in the United
States;
c. Whether the eligible foreign custodian has
branch offices in the United States in order to facilitate the
assertion of jurisdiction over and enforcement of judgments
against such custodian; and
d. In the case of an eligible foreign custodian
that is a foreign securities depository, the number of
participants in, and operating history of, the depository.
3. The Trustee should consider the extent of the
Trust's exposure to loss because of the use of an eligible
foreign custodian. The potential effect of such exposure upon
Unitholders shall be disclosed, if material, by the Depositor
in the Prospectus relating to the Trust.
(III) The Trustee will indemnify and hold the
Trust harmless from and against any loss that shall occur as
the result of the failure of an eligible foreign custodian
holding the foreign securities of the Trust to exercise
reasonable care with respect to the safekeeping of such foreign
securities to the same extent that the Trustee would be
required to indemnify and hold the Trust harmless if the
Trustee were holding such foreign securities in the
jurisdiction of the United States whose laws govern the
indenture, provided, however, that the Trustee will not be
liable for loss except by reason of the gross negligence, bad
faith or willful misconduct of the Trustee or the eligible
foreign custodian."
24. Notwithstanding anything to the contrary in the Standard
Terms and Conditions of Trust, the requisite number of Units needed
to be tendered to exercise an In Kind Distribution as set forth in
Sections 5.02 and 8.02 shall be that number set forth in the
Prospectus.
25. Section 8.02 is hereby revised to require an affirmative
vote of Unitholders representing 66 2/3% of the then outstanding
Units to terminate the Trust rather than the 51% indicated therein.
26. Section 3.01 of the Standard Terms and Conditions of Trust
shall be replaced in its entirety with the following:
"Section 3.01. Initial Costs. The following
organization and regular and recurring expenses of the
Trust shall be borne by the Trustee: (a) to the extent
not borne by the Depositor, expenses incurred in
establishing a Trust, including the cost of the initial
preparation and typesetting of the registration statement,
prospectuses (including preliminary prospectuses), the
indenture, and other documents relating to the Trust,
Securities and Exchange Commission and state blue sky
registration fees, the costs of the initial valuation of
the portfolio and audit of the Trust, the initial fees and
expenses of the Trustee, and legal and other out-of-pocket
expenses related thereto, but not including the expenses
incurred in the printing of preliminary prospectuses and
prospectuses, expenses incurred in the preparation and
printing of brochures and other advertising materials and
any other selling expenses, (b) the amount specified in
Section 3.05 and Article VIII, (c) to the extent permitted
by Section 6.02, auditing fees and, to the extent not
borne by the Depositor, expenses incurred in connection
with maintaining the Trust's registration statement
current with Federal and State authorities, (d) any
Certificates issued after the Initial Date of Deposit ;
and (e) expenses of any distribution agent. The Trustee
shall be reimbursed for those organizational expenses
referred to in clause (a) as provided in the Prospectus.
27. Section 6.01(i) of the Standard Terms and Conditions of
Trust shall be amended by adding the following to the beginning of
such Section:
"Except as provided in Sections 3.01 and 3.05,"
28. Section 8.04 is hereby amended by deleting the first word
of such Section and replacing it with the following:
"Except as provided in Sections 3.01 and 3.05, the"
29. Section 3.05(a) is hereby replaced with the following:
"(a) On or immediately after the tenth the day of each
month, the Trustee shall satisfy itself as to the adequacy of
the Reserve Account, making any further credits thereto as may
appear appropriate in accordance with Section 3.04 and shall
then with respect to each Trust:
(i) deduct from the Capital Account and pay to
itself individually the amounts that it is at the time
entitled to receive pursuant to Section 6.04;
(ii) deduct from the Capital Account and pay to, or
reserve for, the Evaluator the amount that it is at the
time entitled to receive pursuant to Section 4.03;
(iii) deduct from the Capital Account and pay to
counsel, as hereinafter provided for, an amount equal to
unpaid fees and expenses, if any, of such counsel pursuant
to Section 3.08, as certified to by the Depositor; and
(iv) deduct from the Capital Account and pay to, or
reserve for, the Supervisory Servicer the amount that it
is entitled to receive pursuant to Section 3.13."
30. Section 2.03(a) shall be replaced in its entirety by the
following:
"(a) The Trustee hereby acknowledges receipt of the deposit of
the Securities listed in the Schedules to the Trust Agreement
and referred to in Section 2.01 hereof and, simultaneously with
the receipt of said deposit, has recorded on its books the
ownership, by the Depositor or such other person or persons as
may be indicated by the Depositor, of the aggregate number of
Units specified in the Trust Agreement and has delivered, or on
the order of the Depositor will deliver, in exchange for such
Securities, documentation evidencing the ownership of the
number of Units specified and, if such Units are represented by
a Certificate, such Certificate substantially in the form above
recited, representing the ownership of those Units. The number
of Units may be increased through a split of the Units or
decreased through a reverse split thereof, as directed by the
Depositor, on any day on which the Depositor is the only
Unitholder, which revised number of Units shall be recorded by
the Trustee on its books. The Trustee hereby agrees that on
the date of any Supplemental Indenture it shall acknowledge
that the additional Securities identified therein have been
deposited with it by recording on its books the ownership, by
the Depositor or such other person or persons as may be
indicated by the Depositor, of the aggregate number of Units to
be issued in respect of such additional Securities so
deposited, and shall, if so requested, execute a Certificate or
Certificates substantially in the form above recited
representing the ownership of an aggregate number of those
Units."
31. Section 2.01(b) is hereby replaced with the following:
(b) From time to time following the Initial Date of
Deposit, the Depositor is hereby authorized, in its discretion,
to assign, convey to and deposit with the Trustee (i)
additional Securities, duly endorsed in blank or accompanied by
all necessary instruments of assignment and transfer in proper
form (or Contract Obligations relating to such Securities),
and/or (ii) cash (or a Letter of Credit in lieu of cash) with
instructions to purchase additional Securities, in an amount
equal to the portion of the Unit Value of the Units created by
such deposit attributable to the Securities to be purchased
pursuant to such instructions. Such deposit of additional
Securities or cash with instructions to purchase additional
Securities shall be made, in each case, pursuant to a
Supplemental Indenture accompanied by a legal opinion issued by
legal counsel satisfactory to the Depositor. Instructions to
purchase additional Securities shall be in writing, and shall
specify the name of the Security, CUSIP number, if any,
aggregate amount, price or price range and date to be
purchased. When requested by the Trustee, the Depositor shall
act as broker to execute purchases in accordance with such
instructions; the Depositor shall be entitled to compensation
therefor in accordance with applicable law and regulations.
The Trustee shall have no liability for any loss or
depreciation resulting from any purchase made pursuant to the
Depositor's instructions or made by the Depositor as broker,
except by reason of its own negligence, lack of good faith or
willful misconduct.
In connection with any deposit pursuant to this Section 2.01(b)
in the Select Equity and Treasury Trust, the Depositor shall be
obligated to determine that the maturity value of the Zero
Coupon Obligations included in the deposit, divided by the
number of Units created by reason of the deposit, shall equal
at least $10.00.
The Depositor, in each case, shall ensure that each deposit of
additional Securities pursuant to this Section shall be, as
nearly as is practicable, in the identical ratio as the
Percentage Ratio for such Securities as is specified in the
Trust Agreement for each Trust. The Depositor shall deliver
the additional Securities which were not delivered concurrently
with the deposit of additional Securities and which were
represented by Contract Obligations within 10 calendar days
after such deposit of additional Securities (the "Additional
Securities Delivery Period"). If a contract to buy such
Securities between the Depositor and seller is terminated by
the seller thereof for any reason beyond the control of the
Depositor or if for any other reason the Securities are not
delivered to the Trust by the end of the Additional Securities
Delivery Period for such deposit, the Trustee shall immediately
draw on the Letter of Credit, if any, in its entirety, apply
the moneys in accordance with Section 2.01(d), and the
Depositor shall forthwith take the remedial action specified in
Section 3.12. If the Depositor does not take the action
specified in Section 3.12 within 10 calendar days of the end of
the Additional Securities Delivery Period, the Trustee shall
forthwith take the action specified in Section 3.12.
32. 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."
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 Xxx Xxxxxx
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 78
(Note: Incorporated herein and made a part hereof are the "Portfolios"
as set forth in the Prospectus.)
