Exhibit 1.1
HBI Equity Trust, Series 5
Trust Agreement
This Trust Agreement dated as of May 19, 1998 between Xxxx Xxxxxx
Investments, Inc., as Depositor, and The Bank of New York, as Trustee, sets
forth certain provisions in full and incorporates other provisions by reference
to the document entitled "HBI Equity Trust, Series 1 and Subsequent Series,
Standard Terms and Conditions of Trust, Effective March 16, 1994" (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.
Witnesseth That:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor and the 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
and to the same extent as though said provisions had been set forth in this
instrument.
Part II
Special Terms and Conditions of Trust
The following special terms and conditions are hereby agreed to:
(a) The equity securities listed in the Schedule hereto have been
deposited in trust under this Trust Agreement.
(b) For the purposes of the definition of the term "Unit" in Article
I, it is hereby specified that the fractional undivided interest in and
ownership of the Trust is the amount set forth in the section captioned
"Essential Information Regarding the Trust" in the final Prospectus of the
Trust (the "Prospectus") contained in Amendment No. 1 to the Trust's
Registration Statement (Registration No. 333-51391) as filed with the
Securities and Exchange Commission on May 19, 1998. The fractional
undivided interest may decrease by the number of Units redeemed pursuant to
Section 5.02.
(c) For purposes of the definition of the terms "Trust" or "Trust
Fund" in Article I, it is hereby specified that such terms shall include
the HBI Equity Trust, Series 5.
(d) The term "Trustee" shall mean The Bank of New York or its
successors or any successor Trustee appointed as provided in the Standard
Terms and Conditions of Trust. Notwithstanding anything to the contrary in
the Standard Terms and Conditions of Trust, any notice, demand, direction
or instruction to be given to the Trustee shall be in writing and shall be
duly given if mailed, first class with the proper postage prepaid, or
delivered to the Trustee at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or such other address as shall be specified to the other parties hereto by
the Trustee in writing.
(e) The term "Record Date" shall mean the "Record Dates" set forth
under "Essential Information Regarding the Trust" in the Prospectus.
(f) The terms "Income Distribution Date" and "Capital Distribution
Date" shall mean the "Income Account Distribution Dates" and "Capital
Account Distribution Dates" set forth under "Essential Information
Regarding the Trust" in the Prospectus.
(g) The term "Date of Deposit" shall be replaced with the term
"Initial Date of Deposit". The term "Initial Date of Deposit" shall mean
May 19, 1998.
(h) The number of Units of the Trust referred to in Section 2.03 is
set forth under "Essential Information Regarding the Trust" in the
Prospectus.
(i) For the purposes of Section 3.11, the Depositor shall receive for
portfolio surveillance services that annual fee described under "Essential
Information Regarding the Trust" in the Prospectus.
(j) For the purposes of Section 8.05, the Trustee shall receive for
services as trustee that annual fee described under "Essential Information
Regarding the Trust" in the Prospectus.
(k) For the purposes of Section 4.03, the Trustee will act as the
Evaluator and will not receive a separate fee for providing services as
evaluator.
(l) For the purposes of Section 8.01(g), the liquidation amount is
hereby specified as the amount set forth under "Essential Information
Regarding the Trust - Discretionary Liquidation Amount" in the Prospectus.
(m) For the purposes of Section 3.10, the identity of the Substitute
Securities for each Contract Security held in the Trust is as follows: None
-2-
(n) The Mandatory Termination Date shall be that date set forth in
the section captioned "Essential Information Regarding the Trust" in the
Prospectus.
(o) Section 2.01 is hereby amended by adding the following subsection
(e) immediately after Section 2.01(d):
(e) 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 additional Securities, duly endorsed
in blank or accompanied by all necessary instruments of assignment and
transfer in proper form (or Contract Securities relating to such
Securities), to be held, managed and applied by the Trustee as herein
provided. Such deposit of 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. The
Depositor, in each case, shall ensure that each deposit of additional
Securities pursuant to this Section (i) shall be equal to the original
percentage relationship among the number of shares of each Security as
is specified in the Trust Agreement for such Trust and (ii) shall not
violate any applicable laws, rules or regulations, including, but not
limited to, the Investment Company Act of 1940. The Depositor shall
deliver the additional Securities which were not delivered
concurrently with the deposit of additional Securities and which were
represented by Contract Securities 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(b), and the Depositor shall forthwith
take the remedial action specified in Section 3.10. If the Depositor
does not take the action specified in Section 3.10 within 10 calendar
days of the end of the Additional Securities Delivery Period, the
Trustee shall forthwith take the action specified in Section 3.10.
(p) Section 2.03(a) is hereby amended by adding the following at the
end of such section:
The Trustee hereby agrees that on the date of any Supplemental Trust
Agreement, 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 documentation substantially in the
form above recited representing the ownership of an aggregate number
of those Units.
-3-
(q) Section 10.05 is hereby replaced in its entirety by the
following:
Section 10.05. New York Law to Govern. This Agreement is executed and
delivered in the State of New York, and all laws or rules of
construction of such state, except for provisions with respect to
choice of law, shall govern the rights of the parties hereto and the
Unitholders and the interpretation of the provisions hereof.
(r) Notwithstanding anything to the contrary in the Standard Terms
and Conditions of Trust, for purposes of the evaluation procedure described
in Section 4.01, during the initial offering period of the Trust the
evaluation of the Securities shall be made in the manner described in such
Section on the basis of the last available ask or offer side prices of the
Securities, except in those cases in which the Securities are listed on a
national securities exchange and the closing sale prices are utilized.
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed.
Xxxx Xxxxxx Investments, Inc.,
Depositor
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Senior Vice President
The Bank of New York
By /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Vice President
-5-
