Exhibit 0
XXXXX XXXXXX TRUST
AND SUBSEQUENT SERIES OF XXXXX STREET TRUST
TRUST AGREEMENT
for all series formed on or subsequent to the effective date specified below
Effective: August 5, 0000
Xxxxx
XXXXX XXXXXX PARTNERS, LLC
As Administrative Agent
and
XX XXXXXX CHASE BANK
As Trustee
XXXXX STREET TRUST
TRUST AGREEMENT
Dated: August 2, 2002
This Trust Agreement, effective as of August 2, 2002, between Xxxxx Street
Partners, LLC, a Delaware limited liability company ("Xxxxx Street"), as
Depositor, Sponsor, Evaluator and Administrative Agent, and JPMorgan Chase Bank,
a corporation organized under the laws of the State of New York, as Trustee,
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor, Sponsor, Evaluator and Administrative Agent and the
Trustee agree as follows:
INTRODUCTION
This Trust Agreement effective as of the day and year first above written
shall be applicable to Series of the Xxxxx Street Trust as provided in this
paragraph. For each Series of the Xxxxx Street Trust to which this Trust
Agreement is to be applicable, the Depositor, Sponsor, Evaluator, Administrative
Agent and the Trustee shall execute a Reference Trust Agreement, substantially
in form attached as Exhibit 1, and incorporating by reference this Trust
Agreement and designating any exclusion from or exception to such incorporation
by reference for the purposes of that Series or variation of the terms hereof
for the purposes of that Series and specifying for that Series: (i) the PE
Interest subscribed for the Series to be held in trust, (ii) the initial
undivided interest represented by each Unit, (iii) the Mandatory Termination
Date, and (iv) the date on which the Unitholders shall begin to subscribe for
Units pursuant to Section 1.05.
ARTICLE I
DEFINITIONS, PURPOSE, SEPARATE SERIES AND PARTICIPATION
SECTION 1.01. Whenever used in Trust Agreement and Reference Trust
Agreement the following words and phrases, unless the context clearly indicates
otherwise, shall have the following meanings:
1. "Administrative Agent" shall mean Xxxxx Street Partners, LLC or its
successors, or any successor administrative agent appointed as hereinafter
provided.
2. "Approved Valuation Methodology" shall mean the valuation method set forth
in Section 3.03.
3. "Business Day" shall mean any day other than a Saturday, Sunday or a day
which in the State of New York or the states where the unit investment
trust office of the Trustee or the Administrative Agent are located is a
legal holiday or a day on which banking institutions are authorized by law
to close.
4. "Capital Call" means the Administrative Agent's written notice to a
Unitholder to pay all or any portion of its Subscription Amount to a
Series.
5. "Capital Contribution" means each Unitholder's contribution of cash made to
a Series in satisfaction of its capital commitment to the Series with
respect to its Subscription Amount.
6. "Cash Account" shall have the meaning assigned thereto in Section 3.02.
7. "Date of Subscription" shall mean the effective date of the subscription on
behalf of the Series by the Trustee specified in the Reference Trust for
the underlying PE Interest.
8. "Depositor" shall mean Xxxxx Street Partners, LLC, or any other entity
(other than the Trustee) which shall be acting as the Administrative Agent,
that has continuing functions or responsibilities with respect to the
administration of the affairs of the Trust or any Series, including
subscribing for the PE interest specified in the Reference Trust Agreement.
9. "Distribution Date" shall mean such days which the Administrative Agent
shall specify to the Trustee pursuant to Section 3.05.
10. "Evaluator" shall mean Xxxxx Street Partners, LLC or its successors, or any
successor evaluator appointed as hereafter provided.
11. Evaluation Time" shall mean the close of regular trading on the New York
Stock Exchange.
12. "Event of Default" shall mean: default in the payment by any Unitholder of
any capital contribution for any PE Interest when the same becomes due and
payable, and such default shall continue for a period of five (5) days or
more.
13. "Dollar(s)" means the currency of the United States of America.
14. Investment Company Act shall mean the Investment Company Act of 1940, as
amended.
15. "Mandatory Termination Date" shall mean the date specified in the Reference
Trust Agreement on which the Series will terminate.
16. "Participation" means the interest of any Unitholder in the Trust.
17. "PE Interest" shall have the meaning assigned thereto in Section 1.02.
18. "Portfolio Securities" shall mean the PE Interest, and any other instrument
constituting a security within the meaning of Section 2(a)(36) of the
Investment Company Act and held as an asset of a Series.
19. "Qualified Purchaser" means a "qualified purchaser" as defined in the
Investment Company Act.
20. "Record Date" shall mean such days which the Administrative Agent shall
specify to the Trustee pursuant to Section 3.05.
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21. "Redemption Date" shall have the meaning assigned to it in Section 5.01.
22. "Redemption Price" have the meaning assigned to it in Section 5.01.
23. "Reference Trust Agreement" shall mean the Reference Trust Agreement for a
particular Series of the Xxxxx Street Trust into which this Trust Agreement
is incorporated and all amendments and supplements thereto.
24. "Representative" means each person, natural or legal, including a committee
and a fiduciary, acting on behalf of a Unitholder, to whom the
Administrative Agent renders an account of the transactions of a Series
with respect to each Unitholder.
25. "Securities Act" shall mean the Securities Act of 1933, as amended.
26. "Series" means each of the separate trusts created under and administered
pursuant to the terms of this Trust Agreement.
27. "Sponsor" shall mean Xxxxx Street Partners, LLC, or its successors or any
successor Sponsor appointed as herein provided.
28. "Subscription Agreement" means the agreement under which a Unitholder
commits to contribute to a Series in exchange for Units thereof pursuant to
Section 1.05.
29. "Trust Agreement" shall mean this Trust Agreement and all amendments and
supplements thereto.
30. "Trust" shall mean the registered investment company of which each Series
is a part, which shall be known as "Xxxxx Street Trust."
31. "Trustee" shall mean JPMorgan Chase Bank or its successors or any successor
Trustee appointed as hereafter provided.
32. "Trustee's Office" shall mean the unit investment trust office of the
Trustee located at 7th Floor - 7E4 Location, 0 Xxxxx XxxxxXxxx Xxxxxx,
Xxxxxxxx XX 00000 or any other office that the Trustee may from time to
time designate as the principal office where its unit trust business shall
be conducted.
33. "Unit" in respect of any Series shall mean the fractional undivided
interest in and ownership of the Series which shall be equal to a fraction,
the numerator of which is one and the denominator of which is, initially,
the aggregate number of Units specified by the Administrative Agent
pursuant to Section 2.01, and which shall be (i) increased by the number of
any additional Units issued pursuant to Section 2.01(a) hereof, (ii)
increased or decreased pursuant to Section 2.01(b) hereof, and (iii)
decreased by the number of any Units redeemed as provided in Section 5.02
hereof. Whenever reference is made herein to the "Participation" or
"interest" of a Unitholder in a Series, it shall mean such fractional
undivided interest represented by the number of Units held of record by
such Unitholder.
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34. "Unit Value" shall mean the current net asset value of a Series divided by
the number of outstanding Units of the Series.
35. "Unitholder" means the registered holder of any Unit recorded on the books
of the Series of the Trust by the Administrative Agent, who as such shall
be deemed a beneficiary of the Trust to the extent of his pro rata share
thereof.
36. "U.S." means the United States of America.
Words importing a singular number shall include the plural number in each case
and vice versa, and words importing a person shall include corporations and
associations, as well as natural persons.
The words "HEREIN," "HEREBY," "HEREWITH," "HEREOF," "HEREINAFTER," "HEREUNDER,"
"HEREINABOVE," "HEREAFTER," "HERETOFORE" and similar words or phrases of
reference and association shall refer to the Standard Terms Agreement and
Reference Trust in its entirety.
SECTION 1.02. Purpose. Each Series of the Trust shall be operated for the
collective investment in PE Interests by clients or funds managed by Xxxxx
Street that are Qualified Purchasers. The primary investment objective of a
Series shall be to make investments into private equity limited partnerships and
similar entities, including investments in interests in entities in the areas of
venture capital, buy-outs, mezzanine and subordinated debt, restructuring and
distressed debt and securities, special situations, and other similar areas of
alternative asset class investing (the "PE Interests"). In addition to a Series,
other owners of PE Interests may include such investors as may be specifically
designated and accepted as such by Xxxxx Street, in its sole discretion, from
time to time. Any other such investors in the PE Investments generally will
co-invest, on the same relative basis as if each were a Unitholder of the Trust.
The actual respective co-investment amounts of a Series and such other investors
in the PE Investments is subject to adjustment arising from legal, tax,
investment guideline, monetary or regulatory restrictions affecting the Trust or
such other investors (as the case may be) applicable to a particular investment
opportunity, and is further subject to other relative adjustments made in the
equitable discretion of the Administrative Agent.
SECTION 1.03. Separate Series. The Series created under and administered
pursuant to this Trust Agreement are separate and distinct trusts for all
purposes and the assets of one Series may not be commingled with the assets of
any other nor shall the expenses of any Series by charged against the other.
SECTION 1.04. Who May be a Unitholder. An investment in any Series may be
made only by a person who is a client or fund managed by Xxxxx Street and a
Qualified Purchaser.
SECTION 1.05. Subscription for Units. A person may purchase Units of any
Series only as provided in this Section and upon satisfaction of the other
conditions and terms of this Trust Agreement.
a. Approval Necessary. No assets of any person may be invested in a Series
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without the prior approval of the Administrative Agent, in its sole
discretion, and the acceptance by the Administrative Agent of the
Subscription Agreement of such person.
b. Subscription Agreement. A prospective investor shall provide the
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Administrative Agent a written Subscription Agreement in such form as the
Administrative Agent shall deem appropriate, setting forth its commitment
to contribute capital to the Series specified therein (the "Subscription
Amount"), and
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representing that it is fully aware of the nature and purpose of the Trust
and such Series, and that it is financially able to invest in such Series.
The Subscription Agreements of Unitholders may differ as to their terms
from the Subscription Agreements of other Unitholders, including but not
limited to such terms as investment guidelines, restrictions and commitment
period.
c. Formal Notice. No person shall be permitted to acquire Units of any Series
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unless a written notice of approval of such person's subscription shall
have been entered on the books of the Trust by the Administrative Agent.
SECTION 1.06. Acceptance/Rejection of Subscription for Units. Each
prospective investor's subscription for Units of a Series will be accepted (or
rejected) by the Administrative Agent on or before the date of the Reference
Trust Agreement applicable to such Series (the "Series Commencement Date"), and
each Unitholder's obligations under its Subscription Agreement will commence as
of the Series Commencement Date.
ARTICLE II
UNITS OF PARTICIPATION
SECTION 2.01. Creation of Units. The Participation of each Unitholder in a
Series shall be expressed and represented by the number of Units (and fractions
of a Unit, if any) of such Series allocated to such Unitholder hereunder. Each
Unit of a Series shall have a proportionate interest in the assets of such
Series and no Unit shall have priority or preference over any other, and no
Unitholder shall own any particular asset of any Series.
a. Issuance Price and Number of Units. Units of a Series shall be issued to
Unitholders in such Series in accordance with and against receipt of the
pro rata Capital Contributions made by the Unitholders to such Series, and
when issued, shall be issued at the original issue price. The Evaluator
shall establish the opening Unit value at the initial capitalization of
each Series, which value shall be the original issue price per Unit. Each
Unitholder shall receive a number of full Units (which may be augmented, in
the discretion of the Administrative Agent, by a fractional Unit) of each
Series representing such Unitholder's total Capital Contributions in each
Series. When additional capital is paid into a Series, the Unitholder shall
receive a number of full Units (which may be augmented, in the discretion
of the Administrative Agent, by a fractional Unit) of such Series
representing such additional Capital Contributions, and the number of Units
of such Series outstanding shall be increased accordingly based upon the
original issue price per Unit of the Series.
b. Subdivision and Combination. The Administrative Agent, at any time and from
time to time, may subdivide or combine all, but not less than all, of the
Units of any Series then outstanding. Both the number of Units held by each
Unitholder immediately before any such subdivision or combination and the
total number of Units of such Series then outstanding shall be adjusted
accordingly. In the event of any subdivision or combination, the value of a
Unit immediately after such subdivision or combination shall equal the
product of: (i) the value of a Unit immediately prior to such subdivision
or combination, (ii) multiplied by a fraction, the numerator of which shall
equal the number of Units outstanding immediately prior to such subdivision
or combination, and the denominator of which shall equal the number of
Units outstanding immediately after such subdivision or combination.
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SECTION 2.02. Evidence of Ownership of Units. No form of documentation
will be issued to represent or serve as evidence of ownership of Units of any
Series. The Administrative Agent and the Trustee may deem and treat the person
in whose name any Unit shall be registered upon the books of the Administrative
Agent as the owner of such Unit for all purposes hereunder and the
Administrative Agent and the Trustee shall not be affected by any notice to the
contrary.
ARTICLE III
ADMINISTRATION OF THE TRUST
SECTION 3.01. Subscription for PE Interest. On or shortly after the
execution and delivery of the Reference Trust Agreement for a Series, the
Administrative Agent shall subscribe for the PE Interest specified in such
Reference Trust Agreement. Such PE Interest will be deposited in and owned by
the applicable Series upon the acceptance of the subscription by the general
partner or managing entity of such PE Interest. Any such subscription agreement
shall provide that the Trustee shall not be personally liable for any of the
obligations created by the subscription agreement.
SECTION 3.02. Custody Account; Cash Account. The Trustee shall allocate the
assets of each Series to a separate custody account for such Series by
recordation thereof on the Trustee's custody records. Cash held for each Series
shall be credited to a deposit or other account maintained by the Trustee
approved by the Administrative Agent (the "Cash Account").
SECTION 3.03. Income Accounting. For purposes of accounting, there shall be
allocated to the income of each Series all interest, dividends and other
receipts and accruals which the Administrative Agent shall determine to
constitute income of such Series. Dividends declared but not collected upon a
stock which, if sold, would be sold ex-dividend shall be accrued. There shall be
allocated to income of each Series such portion of stock dividends, rights and
extraordinary or liquidating dividends received or accrued, whether payable in
cash or securities, as the Administrative Agent shall determine to be properly
allocable to the income of such Series. There shall be charged against the
income of each Series all income distributions, all accrued items and all
expenses, taxes and assessments paid or accrued which the Administrative Agent
shall determine to be chargeable to the income of such Series.
SECTION 3.04. Principal Accounting. For purposes of accounting, all other
assets of each Series shall be allocated to principal of such Series. There
shall be charged against principal of each Series all losses on the sale or
exchange of investments and all other proper principal charges, including taxes
and assessments chargeable to principal, as determined by the Administrative
Agent with respect to such Series. Premiums paid on the purchase of investments
for each such Series shall be charged to principal of such Series and not
amortized, and in the case of Portfolio Securities purchased at a discount, the
subsequent sales price shall be credited to principal.
SECTION 3.05. Reserve Account. There is hereby created and established
for each Series a trust account to be designated the "Reserve Account." From
time to time, the Trustee shall credit to the Reserve Account amounts withdrawn
from the Cash Account that, in its discretion or as directed by the
Administrative Agent, shall be deemed necessary to establish a reserve for (a)
applicable taxes, governmental charges or other similar expenses payable from
the Series or (b) the distribution to a specific class or classes of former or
current Unitholders of material amounts received by the Series in connection
with the resolution of an extraordinary event affecting a security held
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by the Series. The Trustee shall not be required to distribute to the
Unitholders any of the amounts in the Reserve Account; provided that any amounts
which the Trustee and the Administrative Agent determine are no longer necessary
to be reserved shall be redeposited into the accounts from which those amounts
were withdrawn.
SECTION 3.06. Investment of Income; Distributions to Unitholders. The
income of each Series shall be added to the principal of such Series and, when
and as directed by the Administrative Agent, may be invested and reinvested as a
part thereof prior to distribution.
As directed by the Administrative Agent, the Trustee shall make
distributions of funds held in the Cash Account. For each distribution, the
Administrative Agent shall specify to the Trustee (i) the amount to be
distributed to each Unitholder and (ii) the Distribution and Record Dates. The
Trustee shall rely conclusively on the information provided by the
Administrative Agent and shall have no liability for any error therein.
Notwithstanding the foregoing, the Trustee shall have no obligation to
distribute amounts in excess of the cash balance on hand in the Cash Account on
the Distribution Date. The Administrative Agent shall direct distributions only
in compliance with Section 19 of the Investment Company Act.
Unless otherwise specified by the Administrative Agent and consented to by
the Trustee all distributions shall be made by check directed to the post office
address of the Unitholder appearing on the books of the Administrative Agent and
specified to the Trustee.
Unitholders of record on the books of the Administrative Agent at the close
of business on the Record Day specified by the Administrative Agent shall be
entitled to the distribution made on the related Distribution Day, and no
liability shall attach to the Administrative Agent or Trustee by reason of
payment to or on the order of any such Unitholder.
Together with any distribution to Unitholders, the Trustee shall provide a
statement of the amount being distributed which shall disclose the source of
such distribution, as specified to the Trustee by the Administrative Agent,
satisfying the requirements of Section 19 of the Investment Company Act. The
Trustee shall have no liability for any inaccuracy in the information provided
by the Administrative Agent.
3.07. Sale of Portfolio Securities. The Administrative Agent may direct
the Trustee to sell any Portfolio Securities at a price and time and in such
manner as deemed appropriate in the sole discretion of the Administrative Agent,
if the Administrative Agent shall have determined with respect to such Portfolio
Securities that any one or more of the following conditions exist:
(i) that there has been a default on such Portfolio Securities in
the payment of principal or interest, or both, when due and payable;
(ii) that any materially adverse action or proceeding has been
instituted at law or in equity seeking to restrain or enjoin the
declaration or payment of anticipated dividends on any such Portfolio
Securities or that there exists any other materially adverse legal question
or impediment affecting such Portfolio Securities or the declaration or
payment of dividends on the same;
(ii) that there has occurred any breach of covenants or warranty in
any trust indenture or other document relating to the issuer which might
materially and adversely affect either immediately or
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contingently the declaration or payment of dividends or the payment of debt
service on such Portfolio Securities;
(iv) that there has been a default in the payment of principal of or
interest on any other outstanding securities of an issuer or guarantor of
such Portfolio Securities;
(v) that the price of any such Securities had declined to such an
extent, or such other materially adverse credit or performance factor
exists, so that in the opinion of the Depositor the retention of such
Securities would be detrimental to such Trust and to the interest of the
Unitholders;
The Trustee shall not be liable or responsible in any way for depreciation
or loss incurred by reason of any sale made pursuant to such direction or by
reason of the failure of the Administrative Agent to give any such direction,
and in the absence of such direction the Trustee shall have no duty to sell or
liquidate any Portfolio Securities.
3.08. Notice to Administrative Agent. In the event that the Trustee shall
have been notified at any time of any action to be taken or proposed to be taken
by holders of Portfolio Securities (including but not limited to the making of
any demand, direction, request, giving of any notice, consent or waiver or the
voting with respect to any amendment or supplement to any indenture, resolution,
agreement or other instrument under or pursuant to which the Portfolio
Securities have been issued), the Trustee shall promptly notify the
Administrative Agent and shall thereupon take such action or refrain from taking
any action as the Administrative Agent shall direct; provided, however, that if
the Administrative Agent shall not, within five Business Days of the giving of
such notice to the Administrative Agent direct the Trustee to take or refrain
from taking any action, the Trustee shall take such action as it, in its sole
discretion, shall deem advisable and shall have no liability for any loss or
depreciation resulting therefrom.
In the event that an offer by the issuer of any of the Portfolio Securities
shall be made to issue new securities, or to exchange securities, for Portfolio
Securities, the Administrative Agent shall direct the Trustee to accept or
reject such offer. However, should any issuance, exchange or substitution be
effected notwithstanding any rejection or without an initial offer, any
securities, cash and/or property received shall be deposited hereunder and shall
be retained or sold, if securities or property, by the Trustee in the manner
directed by the Administrative Agent, provided that no securities or property
shall be retained if the Trustee shall determine that such retention shall be
unduly burdensome or adversely affect its duties and responsibilities as
custodian hereunder. The cash received in any such exchange and cash proceeds of
any such sales shall be credited to principal.
Neither the Administrative Agent nor the Trustee shall be liable to any
person for any action or failure to take action pursuant to this Section.
SECTION 3.09. Custody Statements Provided by the Trustee. The Trustee shall
provide to the Administrative Agent quarterly statements of the transactions of
the Series and the assets on hand as of the date of the statement.
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ARTICLE IV
EVALUATION OF PORTFOLIO SECURITIES; VALUATION OF SERIES AND UNITS; EVALUATOR
SECTION 4.01. Evaluation of Portfolio Securities.
a. The Evaluator shall determine separately and promptly furnish to the
Administrative Agent and, if requested by it, the Trustee, on any Business
Day as of the Evaluation Time next following the tender of a Unit for
redemption, on such quarterly dates specified by the Administrative Agent,
and on any other Business Day which is requested by the Administrative
Agent or the Trustee (each such day being referred to as a "Valuation
Date"), the value of each issue of Portfolio Securities in U.S. dollars.
b. Approved Valuation Methodology. The Evaluator shall determine the net asset
value of the Portfolio Securities as of the Evaluation Time on the basis of
the following Approved Valuation Methodology set forth in this paragraph
(b):
(i) The value of any Portfolio Security shall be the market value thereof,
as determined by the Evaluator. In the case of Portfolio Securities (other
than government obligations of the U.S. and foreign (non-U.S.) Securities)
listed on any generally recognized stock exchange, the value shall be
determined by taking the last sale price of each Portfolio Security
reported by any such exchange for the Valuation Date. If no sale has been
reported on an exchange for that day, and for the purpose of determining
the value of an unlisted Portfolio Security, the closing bid price on such
day shall be used; but if the closing bid price does not, in the opinion of
the Evaluator, fairly indicate the true value of a Portfolio Security, if
there is no bid price or if no exchange quotation is available, then the
Evaluator may use a quotation from a reputable broker or investment banker
or such other information as in its judgment may be useful or necessary in
determining the value, including without limitation, a formula computation.
The Evaluator may rely on sales and bid prices reported in newspapers of
general circulation published in Chicago or New York, in standard financial
periodicals, in the records of any recognized exchange, or as provided by a
pricing service.
(ii) The fair market value of any Portfolio Security, whether listed or
unlisted, for which a market quotation is available, but which has any
restrictions on its sale or transfer free of all restrictions to any
purchaser, shall be determined in accordance with the foregoing paragraph,
less an appropriate discount. Such discount shall be determined in good
faith by the Evaluator, giving due consideration to the nature and length
of time of such restriction and the relative volatility of the market price
of such Portfolio Security.
(iii) The value of any Portfolio Security for which a market quotation is
not readily available, excluding PE Interests, shall be its cost; provided
however, that the Evaluator shall adjust such cost value to reflect any
bona fide third party transactions in such Portfolio Security, between
knowledgeable investors, of which the Evaluator has knowledge. In the
absence of any such third party transactions, if in the opinion of the
Evaluator, such cost value does not fairly indicate the true value of such
Portfolio Security, then the Evaluator may use such other information as in
its judgment may be useful or necessary in its good faith determination of
value.
(iv) In determining the fair market value of PE Interests or interests in
similar entities, including non-U.S. limited partnerships or entities which
are held as a Portfolio Security in a Series, the Evaluator may
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consider and rely upon the financial statements of the limited partnership
or entity provided to it and accept such valuations as are placed on the
interests by the general partner or manager of such entity and reflected in
the financial statements of such limited partnership or other entity, or,
if in the opinion of the Evaluator, such valuation does not fairly indicate
the true value of the interest, then the Evaluator may use such other
information as in its judgment may be useful or necessary in its good faith
determination of value, including the estimated period of time during which
such PE Interests will not be freely marketable, the estimated expenses, if
any, to the Series of registering or otherwise qualifying such PE Interests
for public sale, and any other factors affecting the issuer of the PE
Interests.
(v) The value of negotiable obligations of the U.S. shall be the bid price
on the Valuation Date.
(vi) A Portfolio Security purchased, the purchase price of which shall not
have been paid, shall be included for valuation purposes as a Portfolio
Security held, and the purchase price, including broker's commissions and
other expenses, shall be treated as a liability of the Series.
(vii) A Portfolio Security sold but not delivered pending receipt of the
proceeds shall be valued at the net sales price.
(viii) In determining the market value of any foreign (non-U.S.) Portfolio
Security in any Series, the Evaluator may, in its discretion, rely upon the
price quote of a Portfolio Security maintained or reported by any foreign
stock exchange. If such price quote does not, in the opinion of the
Evaluator, fairly indicate the true value of a Portfolio Security, or if
there is no price quote available, then the Evaluator may use a quotation
from a reputable broker or investment banker, either foreign or domestic,
or such other information as in its judgment may be useful or necessary in
determining value. Since all values of Securities are to be expressed in
terms of currency of the U.S., the Evaluator may, in its discretion, rely
upon any currency exchange rates maintained or reported by any one or more
of the following: a reputable domestic or foreign bank, broker or
investment banker; the mean of the marking rate as quoted by a foreign
stock exchange; or any other competent currency exchange rate source deemed
to be such by the Evaluator.
SECTION 4.02. Valuation of Series and Units. On each day on which the
Evaluator makes an evaluation of Portfolio Securities pursuant to Section 4.01,
it shall also determine the value of the Series and of its Units. The value of
the Series shall be the aggregate of (i) the cash on hand in such Series, (ii)
the value of the Portfolio Securities in such Series, and (iii) the net value of
all accrued credits to, charges against and liabilities of such Series. The net
asset value of each issued and outstanding Unit of any Series as of a Valuation
Date shall be determined by dividing the value of the net assets of the Series
by the total number of Units of such Series outstanding as of the Valuation
Date; provided, however, that fractions of a cent per Unit may be omitted.
SECTION 4.03. Information for Unitholders. For the purpose of permitting
Unitholders to satisfy any reporting requirements of applicable federal or state
tax law, the Evaluator shall make available to the Administrative Agent, and the
Administrative Agent shall transmit to any Unitholder, upon request, any
evaluation of Portfolio Securities or Valuation of a Series and its Units made
pursuant to sections 4.01 and 4.02.
SECTION 4.04. Liability of Evaluator. The Administrative Agent, the Trust
and the Unitholders may rely on any evaluation of Portfolio Securities or
valuation of a Series and its Units furnished by the Evaluator and shall have no
responsibility for the accuracy thereof. The determinations made by the
Evaluator hereunder shall be made in good faith upon the basis of the Approved
Valuation Methodology. The Evaluator shall be under no liability to the
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Trustee, the Administrative Agent or the Unitholders for errors in
judgment, provided, however, that this provision shall not protect the
Evaluator against any liability to which it would otherwise be subject b
reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties hereunder.
SECTION 4.05. Resignation and Removal of Evaluator; Successor.
a. The Evaluator may resign and be discharged hereunder, by executing an
instrument in writing resigning as Evaluator and filing the same the
Administrative Agent not less than 60 days before the date specified in
such instrument when, subject to Section 4.05(e), such resignation is to
take effect. Upon receiving such notice of resignation, the Administrative
Agent or, if no Administrative Agent is acting, the Trustee, shall use its
best efforts to appoint a successor Evaluator having qualifications and at
a rate of compensation satisfactory to the Administrative Agent or, if the
appointment is made by the Trustee, the Trustee. Such appointment shall be
made by written instrument executed by the Administrative Agent or the
Trustee, as applicable, one copy of which shall be delivered to the
resigning Evaluator and one copy to the successor Evaluator. The
Administrative Agent may remove the Evaluator at any time upon 30 days'
written notice and appoint a successor evaluator having qualifications and
at a rate of compensation satisfactory to the Administrative Agent. Such
appointment shall be made by written instrument executed by the
Administrative Agent, in duplicate, one copy of which shall be delivered to
the Evaluator so removed and one copy to the successor evaluator. Notice of
such resignation or removal and appointment shall be mailed by the
Administrative Agent to each Unitholder then of record.
b. Any successor Evaluator appointed hereunder shall execute, acknowledge and
deliver to the Administrative Agent an instrument accepting such
appointment hereunder, and such successor evaluator shall thereupon become
vested with all the rights, powers, duties and obligations of its
predecessor hereunder with like effect as if originally named Evaluator
herein and shall be bound by all the terms and conditions of this Trust
Agreement.
c. In case at any time the Evaluator shall resign and no successor evaluator
shall have been appointed and have accepted appointment within 30 days
after notice of resignation has been received by the Administrative Agent,
the Evaluator may forthwith apply to a court of competent jurisdiction for
the appointment of a successor evaluator. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, appoint a
successor evaluator.
d. Any corporation into which the Evaluator hereunder may be merged or with
which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Evaluator hereunder shall be a party, shall
be the successor evaluator under this Trust Agreement without the execution
or filing of any paper, instrument or further act to be done on the part of
the parties hereto, anything herein, or in any agreement relating to such
merger or consolidation, by which the Evaluator may seek to retain certain
powers, rights and privileges theretofore obtaining for any period of time
following such merger or consolidation, to the contrary notwithstanding.
e. Any resignation or removal of the Evaluator and appointment of a successor
evaluator pursuant to this Section shall become effective upon acceptance
of appointment by the successor evaluator as provided in subsection (b)
hereof.
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ARTICLE V
REDEMPTION OF UNITS; TRANSFER
SECTION 5.01. Redemption. Redemption of Units of any Series shall be
permitted solely as provided in this Section 5.01.
a. Mandatory Redemptions. Notwithstanding any provision of this Agreement,
when the Administrative Agent receives written notice that a Unitholder for
any reason was not a Qualified Purchaser at the time of execution of the
Subscription Agreement, or if the Administrative Agent determines that, in
accordance with applicable law or regulation, a Unitholder must be
withdrawn from the Trust or any Series, then the Participation of such
Unitholder shall be withdrawn from the Trust or such Series(s) as soon as
it is administratively possible, in the discretion of the Administrative
Agent, after the date the Administrative Agent makes such determination,
and the Units of such Unitholder shall be redeemed in full on the basis of
the current Unit value of such Series.
b. Redemption at Unitholder's Request. A Unitholder may tender all or any part
of its Units for redemption by delivery to the Administrative Agent of a
written instrument requesting redemption, substantially in form attached as
Appendix A, duly executed with signature guarantee satisfactory to the
Administrative Agent. The Units shall be redeemed by the Trustee no later
than the seventh calendar day following the day on which tender for
redemption is made, provided that if such day of redemption is not a
Business Day, then such Unit shall be redeemed on the first Business Day
prior thereto (being herein called the "Redemption Date"). Subject to
payment by such Unitholder of any tax or other governmental charges which
may be imposed thereon, such redemption is to be made by payment of the
value of the redeemed Units calculated pursuant to Section 4.02 for the
date of tender (the "Redemption Price") in the manner specified in Section
5.02. A redemption request received by the Administrative Agent on any day
after the Evaluation Time will be held by the Administrative Agent until
the next Business Day and the Units to which such request applies will be
deemed to have been tendered on such day for redemption at the Redemption
Price computed on that day.
The Administrative Agent may in its discretion suspend the right of
redemption for Units of a Series or postpone the date of payment of the
Redemption Price therefor for more than seven calendar days following the
day on which tender for redemption is made (1) for any period during which
the New York Stock Exchange is closed other than customary weekend and
holiday closings or during which trading on the New York Stock Exchange is
restricted; (2) for any period during which an emergency exists as a result
of which disposal by such Trust of the Securities is not reasonably
practicable or it is not reasonably practicable fairly to determine in
accordance herewith the value of the Securities; or (3) for such other
period as the Securities and Exchange Commission may by order permit, and
shall not be liable to any person or in any way for any loss or damage
which may result from any such suspension or postponement.
c. Units redeemed shall be terminated by such redemption.
SECTION 5.02. Distribution Upon Redemption. Upon receipt of a redemption
request in proper form, the Administrative Agent shall direct the Trustee to
make a pro rata distribution of the assets attributable to the tendered Units,
subject to the Administrative Agent's obligation to avoid adversely affecting
the interests of the other
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Unitholders of the Series, and subject to any transfer or other restrictions on
such assets, as determined in the sole discretion of the Administrative Agent,
such distribution to be made on the Redemption Date.
a. Form. Such distribution to the redeeming Unitholder shall be payable in
cash, cash equivalents, securities and/or other assets, with each such
separate group of cash, cash equivalents, securities and/or other assets
and any combination of the foregoing to be as determined in the discretion
of the Administrative Agent, and with such distribution to be made on a
basis that is pro rata to the interest in the assets of such Series
represented by the tendered Units, to the extent practicable, unless
otherwise required by law or contract. In the event the Administrative
Agent determines that the registration of transfer any asset included in
the redemption distribution may not be effected by the Redemption Date, the
Administrative Agent shall direct Trustee to provide evidence of beneficial
ownership of such asset in such form as shall be specified to Trustee by
the Administrative Agent. No approval of the Unitholders (including the
Unitholder whose Units are the subject of the redemption) shall be required
prior to the making of such redemption distribution.
In the event the Administrative Agent determines that any asset
includible in the redeeming Unitholder's pro rata share of the Series
assets represented by the tendered Units cannot be transferred to such
Unitholder, the asset shall be sold by the Trustee at such time and in such
manner as the Administrative Agent shall direct, and the proceeds of such
sale shall be paid to the redeeming Unitholder.
The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any sale or distribution of
Portfolio Securities or other assets made pursuant to this Section 5.02.
SECTION 5.03. Prohibition on Transfer. A Unitholder may not sell, exchange,
assign, transfer, give, pledge, encumber, or hypothecate its Units except in
accordance with this Section.
a. Substitution. A Unitholder may transfer all, but not less than all, of its
Units to a Qualified Purchaser acceptable to the Administrative Agent, in
its sole discretion. Upon presentation of a written instrument or
instruments of transfer in form satisfactory to the Administrative Agent
and executed by the Unitholder or his authorized attorney, the
Administrative Agent shall record the ownership of the transferred Units by
such approved transferee.
ARTICLE VI
CAPITAL CONTRIBUTIONS; REMEDIES IN THE EVENT OF UNITHOLDER'S DEFAULT IN
MAKING ITS CAPITAL CONTRIBUTION
SECTION 6.01. Capital Contributions; Drawdowns. Each Unitholder agrees to
make Capital Contributions to the Series to which its Subscription applies, in
an aggregate amount up to its Subscription Amount. All payments of Capital
Contributions shall be made at such times and in such amounts as are specified
by the Administrative Agent in Capital Calls issued from time to time, as
provided in such Unitholder's Subscription Agreement(s). The Administrative
Agent will provide prior written notice to the Trustee of the amount of each
Unitholder's Capital Call and the date
SECTION 6.02. Default. A Unitholder may not make less than the full amount
of its Capital Contributions. In the event any Unitholder fails to pay in full
any Capital Contributions or any other amount which it is required to pay
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to the Trust, on or before the date when any such amounts are due and payable,
then the Administrative Agent shall issue a written notice of such failure to
the Unitholder by certified or registered mail. If the full amount of such
overdue sum is not paid in full and received by the Trust (or the Administrative
Agent, as the case may be) within five (5) days from the mailing of such notice,
then the Unitholder shall be deemed to be in default hereunder (a "Defaulting
Unitholder").
a. Default Charge. The Administrative Agent, on behalf of the Series and its
non-defaulting Unitholders, shall have the option, exercisable in the sole
discretion of the Administrative Agent by written notice to the Defaulting
Unitholder after the occurrence of such default, to charge to the
Participation balance of such Defaulting Unitholder in all Series of the
Trust (allocated among Series to which the Defaulting Unitholder's
Subscription Amounts are allocated as determined by the Administrative
Agent) an amount equal to the greater of: (1) 50% of all of such
Unitholder's Capital Contributions made to date; or (ii) 50% of the net
asset value of all Units of each Series allocated to the Defaulting
Unitholder, determined as of the date such notice is given (the "Default
Charge"). Thereafter, for all purposes the Participation of such Defaulting
Unitholder shall be reduced by an amount equal to the Default Charge, and
the Participation of each Unitholder not in default hereunder at such time
shall be increased by that portion of the Default Charge which such
non-defaulting Unitholder's interest in each Series bears to the total
interest of all other Unitholders in such Series not in default at such
time and the Administrative Agent shall reflect such reduction and increase
by appropriate reduction and increase in ownership of Units of the affected
Series by the Defaulting Unitholder and other Unitholders on the
registration books of the Series. Notwithstanding the foregoing: (i) the
amount by which a Defaulting Unitholder's Participation is reduced as the
result of the imposition of a Default Charge shall in no case exceed the
positive balance of such Defaulting Unitholder's Participation immediately
before the reduction; and (ii) in the event that the balance of the
Defaulting Unitholder's Participation cannot be reduced by the full amount
of the applicable Default Charge because of the limitation imposed by the
preceding clause (i), the excess Default Charge shall be carried over to
reduce the Defaulting Unitholder's Participation (and correspondingly
increase the Participations of the Unitholders not in default) as soon as
such reduction would be permitted under clause (i).
b. Transfer of Units of Defaulting Unitholder. In addition to the Default
Charge and other provisions described above, the Administrative Agent, in
its discretion and without the consent of the Defaulting Unitholder, has
the right to transfer the Units of the Defaulting Unitholder (either
without, or after giving effect to, the application of the Default Charge)
to a Qualified Purchaser approved by the Administrative Agent upon payment
by such Qualified Purchaser to the Defaulting Unitholder of an amount equal
to the Unit value of the Units to be transferred, as of the transfer date,
as determined by the Evaluator. Such transfer shall vest in the transferee
all of the right, title, and interest of the Defaulting Unitholder in the
transferred Units.
ARTICLE VII
TRUSTEE
SECTION 7.01. General Definition of Trustee's Liabilities, Rights and
Duties. The Trustee, as and solely to the extent directed by the Administrative
Agent, shall undertake such actions as the Administrative Agent may deem
necessary at any and all times to protect each Series and the rights and
interests of the Unitholders thereof pursuant to the terms of this Trust
Agreement, provided, however, that the expenses and costs of such actions,
undertakings
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or proceedings shall be reimbursable to the Trustee from assets of the affected
Series and the payment of such costs and expenses shall be secured by a prior
lien on the assets of such Series.
In addition to and notwithstanding the other duties, rights, privileges and
liabilities of the Trustee as otherwise set forth the liabilities of the Trustee
are further defined as follows:
a. The assets of each Series shall be kept separate and apart from
the assets of each other Series of the Trust and from all other property
belonging to or in the custody of the Trustee, by separate recordation on
the custody records of the Trustee so long as such practice preserves a
valid preference under applicable law, or if such preference is not so
preserved, the Trustee shall handle such assets in such other manner as
shall constitute the segregation and holding thereof in trust within the
meaning of the Investment Company Act, except that cash pending investment
or distribution may, when consistent with the reasonable and proper
administration of a Series, be held temporarily by or on deposit with any
bank without liability for interest. The Trustee shall hold, administer,
distribute, account for and otherwise deal with each Series separately.
b. The Trustee shall, at the direction of the Administrative Agent,
have the right at all times to retain, sell, exchange, convert, transfer,
acquire, change and dispose of, and consent to and participate in
reorganizations with respect to, the assets of the Trust and each Series,
and shall have and may exercise any and all rights and privileges in
respect to all assets therein as though the absolute owner thereof.
c. The Trustee, at the direction of the Administrative Agent, shall
have the power to
(i) settle, compromise or abandon any or all claims and demands in favor of
or against the Trust or any Series thereof;
(ii) begin, maintain or defend any litigation necessary in connection with
the investment, reinvestment and administration of the Trust or any Series
thereof;
(iii) vote any corporate stock or other security having voting rights
either in person or by proxy for any purposes; exercise any conversion
privilege, subscription right or any other right or option given to the
Trustee as the owner of record of any Portfolio Security owned by any
Series and to make any payments incidental thereto; consent to, take any
action in connection with, and receive and retain any securities resulting
from any reorganization, consolidation, merger, readjustment of the
financial structure, sale, lease or other disposition of the assets of any
corporation or other organization, the Portfolio Securities of which may be
an asset of any Series;
(iv) organize and incorporate (or participate in the organization or
incorporation of) under the laws of any state, a corporation or
corporations or other legal entity for the purpose of acquiring and holding
title to any property which the Trustee is authorized to acquire for any
Series and to exercise with respect thereto any of the powers, rights and
duties it has with respect to other assets of that Series;
(v) cause any asset of any Series to be issued, held or registered in its
name or in the name of its nominee, or in such form that title will pass by
delivery, or to place any such asset in the
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custody of a depository or clearing corporation, provided that the records
of the Trustee shall indicate the true ownership of such asset; and
(vi) exercise any of the powers and rights of individual owners with
respect to any property of the Trust or any Series thereof and to do all
other acts which are necessary or desirable for the proper administration
of the Trust or any Series thereof, although such powers, rights and acts
are not specifically enumerated in this Trust Agreement.
d. The Trustee shall be under no liability for any action taken in
good faith on any appraisal, paper, order, list, demand, request, consent,
affidavit, notice, opinion, direction, evaluation, endorsement, assignment,
resolution, draft or other document, whether or not of the same kind, prima
facie properly executed, or for the disposition of moneys or other assets
of any Series pursuant to this Trust Agreement, or otherwise, except by
reason of its own gross negligence, lack of good faith or willful
misconduct, provided, that in no event shall the Trustee be responsible for
consequential damages of any persons regardless of whether such damages may
be foreseeable, and provided further, that the Trustee shall not in any
event be liable or responsible for any evaluation made by the Evaluator.
The Trustee may construe any of the provisions of this Trust Agreement,
insofar as the same may appear to be ambiguous or inconsistent with any
other provisions hereof, and any construction of any such provisions hereof
by the Trustee in good faith shall be binding upon the parties hereto;
e. The Trustee shall not be responsible for or in respect of the
recitals herein, the validity or sufficiency of this Trust Agreement or for
the due execution hereof by the Administrative Agent or the Evaluator, or
for the form, character, genuineness, sufficiency, value or validity of any
Portfolio Securities, and the Trustee shall in no event assume or incur any
liability, duty, or obligation to any Unitholder, the Administrative Agent
or the Evaluator, other than as expressly provided for herein. The Trustee
shall not be responsible for or in respect of the validity of any signature
by or on behalf of the Administrative Agent or the Evaluator;
f. The Trustee shall not be under any obligation to appear in,
prosecute or defend any action, which in its opinion may involve it in
expense or liability, unless as often as required by the Trustee, it shall
be furnished with reasonable security and indemnity against such expense or
liability, and any pecuniary cost of the Trustee from such actions shall be
deductible from and a charge against the Interest and Principal Accounts of
the affected Series;
g. The Trustee may employ agents, attorneys, accountants and auditors
and shall not be answerable for the default or misconduct of any such
agents, attorneys, accountants or auditors if such agents, attorneys,
accountants or auditors shall have been selected with reasonable care. The
Trustee shall be fully protected in respect of any action under this Trust
Agreement taken, or suffered, in good faith by the Trustee, in accordance
with the opinion of its counsel. The fees and expenses charged by such
agents, attorneys, accountants or auditors shall constitute an expense of
the Trustee reimbursable from the Interest and Principal Accounts of the
affected Series as set forth in Section 9.02 hereof;
h. If at any time the Administrative Agent shall fail to undertake or
perform any of the duties which by the terms of this Trust Agreement are
required by it to be undertaken or performed, or such Administrative Agent
shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or a receiver of such Administrative Agent or of its property
shall be appointed, or any public officer shall take
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charge or control of such Administrative Agent or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then in any such case, the Trustee may: (1) appoint a successor
Administrative Agent who shall act hereunder in all respects in place of
such Administrative Agent which successor shall be satisfactory to the
Trustee, and which may be compensated at rates deemed by the Trustee to be
reasonable under the circumstances, by deduction ratably from the assets of
the affected Series, but no such deduction shall be made exceeding such
reasonable amount as the Securities and Exchange Commission may prescribe
in accordance with Section 26(a)(2)(C) of the Investment Company Act of
1940, or (2) terminate and liquidate the affected Series in the manner
provided in Section 9.02;
i. In no event shall the Trustee be liable for any taxes or other
governmental charges imposed upon or in respect of the Portfolio Securities
or upon the income thereon or upon it as Trustee hereunder or upon or in
respect of any Trust which it may be required to pay under any present or
future law of the United States of America or of any other taxing authority
having jurisdiction in the premises. For all such taxes and charges and for
any expenses, including counsel fees, which the Trustee may sustain or
incur with respect to such taxes or charges, the Trustee shall be
reimbursed and indemnified out of the assets of the affected Series, and
the payment of such amounts so paid by the Trustee shall be secured by a
prior lien on such Trust;
j. No payment to a depositor or to any principal underwriter (as
defined in the Investment Company Act of 1940) for any Trust or to any
affiliated person (as so defined) or agent of a depositor or such
underwriter shall be allowed as an expense except for payment of such
reasonable amounts as the Securities and Exchange Commission may prescribe
as compensation for performing bookkeeping and other administrative
services of a character normally performed by the Trustee; and
k. The Trustee except by reason of its own negligence or willful
misconduct shall not be liable for any action taken or suffered to be taken
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Trust Agreement.
SECTION 7.02. Ancillary Trustees. Whenever directed by the Administrative
Agent, the Trustee may by written instrument create an ancillary trust with
respect to any portion of the assets then held in, or about to be acquired by,
any Series, and the Administrative Agent may appoint any person, banking
association or corporation as "Ancillary Trustee" thereof. Each such Ancillary
Trustee shall have such rights, powers, duties and discretion as are necessary
for it to execute the trusts vested in it, but shall, to the extent it may
lawfully do so, exercise the same subject to such limitations or further
directions of the Trustee as are specified in the instrument evidencing its
appointment. Such Ancillary Trustee at any time and from time to time may
resign, or be removed by the Administrative Agent, as to all or any portion of
the assets comprising the ancillary trust, by written notice from the Trustee
appointing a qualified successor, which successor shall have all powers, rights,
duties and obligations as its predecessor, or the Trustee may itself receive any
part or all of the assets of the ancillary trust in termination thereof to the
extent of the assets so received. The Trustee shall have no liability for the
acts or omissions of any Ancillary Trustee.
SECTION 7.03. Removal and Resignation of Trustee; Successor. The following
provisions shall provide for the removal and resignation of the Trustee and the
appointment of any successor trustee:
a. The Trustee or any trustee or trustees hereafter appointed may resign and
be discharged of a Trust created by this Trust Agreement, by executing an
instrument in writing resigning as Trustee of such Trust and filing
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same with the Administrative Agent and mailing a copy of a notice of
resignation to all Unitholders then of record, not less than sixty days
before the date specified in such instrument when, subject to Section
7.03(e), such resignation is to take effect. Upon receiving such notice of
resignation, the Administrative Agent shall promptly appoint a successor
trustee as hereinafter provided, by written instrument, in duplicate, one
copy of which shall be delivered to the resigning Trustee and one copy to
the successor trustee. The Administrative Agent may at any time remove the
Trustee, with or without cause, and appoint a successor trustee by written
instrument, in duplicate, one copy of which shall be delivered to the
Trustee so removed and one copy to the successor trustee. Notice of such
resignation or removal of a trustee and appointment of a successor trustee
shall be mailed by the successor trustee, promptly after its acceptance of
such appointment, to each Unitholder then of record.
b. Any successor trustee appointed hereunder shall execute, acknowledge and
deliver to the Administrative Agent and to the retiring Trustee an
instrument accepting such appointment hereunder, and such successor trustee
without any further act, deed or conveyance shall become vested with all
the rights, powers, duties and obligations of its predecessor hereunder
with like effect as if originally named Trustee herein and shall be bound
by all the terms and conditions of this Trust Agreement. No successor
trustee shall be liable for the acts or omissions of its predecessor. Upon
the request of such successor trustee, the Administrative Agent and the
retiring Trustee shall, upon payment of any amounts due the retiring
Trustee, or provision therefor to the satisfaction of such retiring
Trustee, execute and deliver an instrument acknowledged by it transferring
to such successor trustee all the rights and powers of the retiring
Trustee; and the retiring Trustee shall transfer, deliver and pay over to
the successor trustee all Securities and moneys at the time held by it
hereunder, together with all necessary instruments of transfer and
assignment or other documents properly executed necessary to effect such
transfer and such of the records or copies thereof maintained by the
retiring Trustee in the administration hereof as may be requested by the
successor trustee, and shall thereupon be discharged from all duties and
responsibilities under this Trust Agreement.
c. In case at any time the Trustee shall resign and no successor trustee shall
have been appointed and have accepted appointment within thirty days after
notice of resignation has been received by the Administrative Agent, the
retiring Trustee may forthwith apply to a court of competent jurisdiction
for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
d. Any entity into which any trustee hereunder may be merged or with which it
may be consolidated, or any entity resulting from any merger or
consolidation to which any trustee hereunder shall be a party, shall be the
successor trustee under this Trust Agreement without the execution or
filing of any paper, instrument or further act to be done on the part of
the parties hereto, anything herein, or in any agreement relating to such
merger or consolidation, by which any such trustee may seek to retain
certain powers, rights and privileges theretofore obtaining for any period
of time following such merger or consolidation to the contrary
notwithstanding.
e. Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in subsection (b) hereof.
The Trustee's and each successor trustee's right to indemnification shall
survive its resignation or removal.
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SECTION 7.04. Qualifications of Trustee. The Trustee shall be a corporation
organized and doing business under the laws of the United States or any state
thereof, which is authorized under such laws to exercise corporate trust powers
and having at all times an aggregate capital, surplus, and undivided profits of
not less than $5,000,000.
ARTICLE VIII
BOOKS, RECORDS AND REPORTS
SECTION 8.01. In General. The Administrative Agent and the Trustee (but the
Trustee's responsibility shall extend solely to the records of its custody
accounts) shall maintain such books and records as are required under the
Investment Company Act and other applicable law and regulations. The
Administrative Agent shall keep a certified copy or duplicate original of this
Trust Agreement on file at its office which, together with a current list of the
assets of each Series shall be open to inspection by any Unitholder of the
relevant Series at all reasonable times during the Administrative Agent's usual
business hours.
SECTION 8.02 Record of Participants. The Administrative Agent shall
maintain a record of the Units of each Series allocated to each Unitholder which
shall include the name and address of the record owner of the Units. The
Administrative Agent shall also maintain records showing the aggregate
Subscription Amounts of Unitholders of each Series and the actual amounts
contributed to each Series by each Unitholder.
SECTION 8.03 Accounting. The Administrative Agent shall keep books
recording all transactions of each Series. As of the close of each year ending
on December 31, or as of the close of such other fiscal year which the
Administrative Agent may from time to time designate, and as of the date of the
termination of each Series, the Administrative Agent shall file a written
account with each Representative of a Qualified Purchaser which was a
Participant in a Series during the period addressed by the account, in such form
as the Administrative Agent may determine, setting forth all investments,
receipts, disbursements, distributions and other transactions of such Series as
of the close of such period. The Administrative Agent shall have the right to
have its accounts judicially settled by a court of competent jurisdiction.
SECTION 8.04. Audit of Series. At least once each year, the Administrative
Agent shall cause an audit to be made of each Series by a certified public
accountant selected by the Administrative Agent. A copy of such report of audit
shall be available at the office of the Administrative Agent for inspection by
any Representative and shall be furnished to any Representative on request.
SECTION 8.05. Regulatory Filings. The Administrative Agent shall make such
annual or other reports as may from time to time be required under the
Investment Company Act or other applicable State or federal statute or
regulation.
SECTION 8.06. Tax Returns and Tax Reports. The Administrative Agent shall
prepare and file applicable tax returns for each Series and shall prepare,
distribute and file required tax reports to the Unitholders. The Administrative
Agent shall notify the Trustee of any taxes or other amounts required to be
withheld from distributions made Unitholders and shall remit, or direct the
Trustee to remit, the same to the taxing authorities.
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ARTICLE IX
EXPENSES, COMPENSATION AND INDEMNITY
SECTION 9.01. Compensation. For its ordinary custody services provided to
each Series under this Trust Agreement, the Trustee shall be paid by Xxxxx
Street the custody fees the Trustee is entitled to receive with respect to the
Trust or any Series in accordance with a fee schedule set forth in a global
custody agreement between the parties. Neither the Evaluator nor the
Administrative Agent shall charge a fee to the Trust or any Series for services
provided under this Trust Agreement.
SECTION 9.02. Expenses of Trustee; Indemnity. The Trustee shall charge each
Series all reasonable expenses and disbursements incurred hereunder in
connection with such Series (other than expenses borne by the Administrative
Agent identified in Section 8,03), including without limitation, the cost,
expenses and fees of litigation, attorneys, agents and custodians incurred by it
in the administration of such Series, and shall be entitled to such reasonable
compensation as it shall determine for extraordinary services, and may allocate
such expenses, disbursements and compensation among the Series of the Trust in
such manner as the Trustee, in its sole discretion, shall determine. Any and all
taxes levied or assessed upon or in respect of any Series, or on the income
thereof, shall be charged to such Series.
To the extent the assets of the Series are inadequate to reimburse the
expenses of the Trustee, the Participants will make Capital Contributions at
such times and in such amounts as are specified by the Administrative Agent in
Capital Calls issued from time to time, as provided in such Participant's
Subscription Agreement. To the extent the Participants' Capital Contributions
are inadequate to reimburse the expenses of the Trustee, the Administrative
Agent will pay the remainder of such Trustee expenses.
The Trustee shall be indemnified ratably by the affected Series and held
harmless against any loss or liability accruing to it without gross negligence,
bad faith or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of the Trust and each Series thereof,
including the costs and expenses (including counsel fees and disbursements) of
defending itself against any claim of liability in the premises. If the cash
balance of the Income and Principal Accounts of the affected Series shall be
insufficient to provide for amounts payable to the Trustee pursuant to this
Section or otherwise hereunder, the Trustee shall have the power to sell
Portfolio Securities and to apply the proceeds of any such sale in payment of
amounts due it. The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any such sale. Any moneys payable to
the Trustee under this Trust Agreement shall be secured by a lien on the
affected Series prior to the interest of the Unitholders.
SECTION 9.03. Expenses borne by the Administrative Agent. The expenses of
audits, tax returns and organization of the Trust and each Series shall be
charged to Administrative Agent.
ARTICLE X
ADMNISTRATIVE AGENT, DEPOSITOR AND SPONSOR
SECTION 10.01. Liability of the Administrative Agent, Depositor and
Sponsor: The Administrative Agent shall be a fiduciary with respect to the
Unitholders, including but not limited to, in all its directions with the sale
and purchase of Portfolio Securities. Provided that the Administrative Agent has
fulfilled its fiduciary duties, and the
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Depositor or Sponsor has fulfilled its fiduciary duty, if any, neither the
Administrative Agent, Depositor or Sponsor shall have any liability to the
Unitholders for any action taken or for refraining from the taking of any action
in good faith pursuant to the Trust Agreement and Reference Trust Agreements or
for errors in judgment, but shall be liable only for its own negligence, lack of
good faith or willful misconduct. The Administrative Agent, Depositor and
Sponsor may rely in good faith on any paper, order, notice, list, affidavit,
receipt, opinion, endorsement, assignment, draft or any other document of any
kind prima facie properly executed and submitted to it by the Trustee, counsel,
or any other persons pursuant to the Trust Agreement and Reference Trust
Agreements and in furtherance of its duties.
SECTION 10.02. Resignation of Administrative Agent, Sponsor and Depositor;
Successor.
a. The Administrative Agent, Depositor or Sponsor may resign and be discharged
hereunder, by executing an instrument in writing resigning as
Administrative Agent, Depositor or Sponsor, respectively, and filing the
same with the Trustee not less than 60 days before the date specified in
such instrument when such resignation is to take effect. Upon receiving
such notice of resignation, the Trustee shall proceed as provided in
Section 7.01(h). Notice of such resignation and appointment of a successor
administrative agent shall be mailed by the Administrative Agent to each
Unitholder then of record.
b. Any successor Administrative Agent, Depositor or Sponsor appointed
hereunder shall execute, acknowledge and deliver to the Trustee an
instrument accepting such appointment hereunder, and such successor
Administrative Agent, Depositor or Sponsor shall thereupon become vested
with all the rights, powers, duties and obligations of its predecessor
hereunder with like effect as if originally named Administrative Agent,
Depositor or Sponsor herein and shall be bound by all the terms and
conditions of this Trust Agreement.
c. Any corporation into which the Administrative Agent, Depositor or Sponsor
hereunder may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the
Administrative Agent Depositor or Sponsor hereunder shall be a party, shall
be the successor Administrative Agent, Depositor or Sponsor under this
Trust Agreement without the execution or filing of any paper, instrument or
further act to be done on the part of the parties hereto, anything herein,
or in any agreement relating to such merger or consolidation, by which the
Administrative Agent, Depositor or Sponsor may seek to retain certain
powers, rights and privileges theretofore obtaining for any period of time
following such merger or consolidation, to the contrary notwithstanding.
ARTICLE XI
AMENDMENTS
SECTION 11.01. This Agreement may be amended at any time, and from time to
time, by agreement of the Trustee and the Administrative Agent. Any amendments
shall be binding upon all persons, including, but not limited to, all
Unitholders and their Representatives and beneficiaries thereof. Written notice
of each amendment shall be mailed by the Administrative Agent to each
Representative. Each amendment shall not in any manner operate to deprive any
Unitholder of its then beneficial interest in any Series. Any amendment to this
Agreement which would materially affect the interest of all Unitholders, or all
Unitholders in particular Series, shall require the approval of at least
two-thirds in interest (determined by Subscription Amounts) of the Unitholders,
or the Unitholders in a particular Series, adversely affected thereby.
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ARTICLE XII
TERMINATION
SECTION 12.01. The Administrative Agent, in its discretion and without
advance notice to anyone, may direct the Trustee to terminate any Series of the
Trust at any time. Notice of such termination shall be mailed to all
Representatives. Each Series shall terminate upon the liquidation of the last
investment held by it and the making of its final liquidating distribution.
A Series shall terminate upon the Mandatory Termination Date of that
Series, or upon the maturity, sale or other disposition as the case may be of
the last Portfolio Security held by the Series, unless sooner terminated as
specified herein.
The Trust and Trust Agreement shall terminate upon the Mandatory
Termination Date of the last existing Series, or upon the maturity, sale or
other disposition as the case may be of the last Portfolio Security held by that
Series, unless sooner terminated as specified herein.
Upon termination of a Series, the Trustee shall distribute the assets of
the Series to the Unitholders in accordance with their Participation therein at
such time and in such manner as directed by the Administrative Agent.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Regulations. This Agreement, the Trust and each Series shall
be administered in conformity with rules, regulations and rulings, if any,
issued by any duly authorized governmental agencies, and statutes, if any, from
time to time in force and applicable hereto, and the Trustee shall not incur any
liability for following any such rule, regulation, ruling or statute contrary to
or inconsistent with the provisions of this Agreement.
SECTION 13.02. Ownership of Assets. Except to the extent required by law,
no Unitholder shall have or be deemed to have any ownership interest in any
particular asset or investment of the Trust or of any Series thereof, and the
ownership of such assets and investments shall at all times be in the Trustee.
SECTION 13.03. No Attachment or Assignment. Units shall not be subject
to garnishment, attachment, levy or execution of any kind for the debts or
defaults of any Unitholder or of any person having or claiming to have any
interest in any Unitholder. No Unit shall be assignable in whole or in part by
any Unitholder or by any Person having or claiming to have any interest in
Unitholder, except that Units may be transferred to a successor of a Unitholder.
SECTION 13.04. Evidence. Evidence required of anyone under this Agreement
may be by certificate, affidavit, endorsement or any other written instrument
which the person acting in reliance thereon believes to be pertinent, reliable
and genuine, and to have been signed, made or presented by the proper and duly
authorized party or parties.
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SECTION 13.05. Discretion of the Administrative Agent to be Absolute; How
Exercised. Whenever in this Agreement it is provided that any power may be
exercised by the Trustee at the direction of the Administrative Agent or any act
or thing done by the Trustee involving the exercise of discretion, the actions
of the Trustee when executed in good faith and with reasonable care, shall be
absolute and uncontrolled, and its determination, when so made, to act or
refrain from acting, or to exercise such power or refrain from so doing, and as
to the time or times and the manner in which action is to be taken, or such
power exercised, shall be binding upon all persons, including, but not limited
to, all Unitholders, Representatives and beneficiaries thereof.
SECTION 13.06. Representation by the Trustee in Judicial Proceedings. In
any judicial proceeding affecting the Trust, any Series or any asset of any of
them, each Unitholder and each and every person having or claiming to have any
interest in any Unitholder of any Series shall be deemed to be fully represented
by the Trustee for all purposes if the Trustee shall be a party to such
proceeding and as such duly before the tribunal in which such proceeding shall
be pending.
SECTION 13.07. Effect of Mistakes. No mistakes made, or acts done or
omitted to be done, in good faith and in the exercise of due care in connection
with the administration of the Trust or any Series shall be deemed to be a
violation of this Trust Agreement if, promptly after the discovery of the
mistake, the Administrative Agent, Trustee or Evaluator shall take whatever
action may be practicable under the circumstances to remedy the mistake.
SECTION 13.08. New York Law to Control. The terms, provisions and effect of
this Agreement shall be construed and determined as if this Agreement were a
contract made within the State of New York.
SECTION 13.09. Written Notice. Any notice, demand, direction or instruction
to be given to the Administrative Agent, Sponsor, Depositor or Evaluator shall
be in writing and shall be duly given if mailed or delivered to the
Administrative Agent, Sponsor, Depositor or Evaluator at UBS Tower, Xxx Xxxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, or at such other address as
shall be specified by the Administrative Agent, Depositor, Sponsor or Evaluator
to the other parties hereto in writing.
Any notice, demand, direction or instruction to be given to the Trustee
hereunder shall be in writing and shall be duly given if mailed or delivered to
the Trustee's Office (defined herein), or at such other address as shall be
specified by the Trustee to the other parties hereto in writing.
Any notice to be given to the Unitholders shall be duly given if mailed or
delivered to each Unitholder at the address of such holder appearing on the
registration books of the Administrative Agent.
SECTION 13.10. Titles and Sub-titles. Titles and sub-titles of the Sections
are placed herein for convenient reference only, and in the case of any
conflict, the text of this Agreement, other than the titles or sub-titles, shall
control.
SECTION 13.11. Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the Trustee
and its successors, the Representatives of each Unitholder and their successors,
each person having an interest in any Unitholder, the Trust or any Series, and
the executors, administrators, distributees, successors and assigns of each such
person.
-23-
SECTION 13.12. Number and Gender. Unless the context otherwise requires,
words denoting the singular number shall where necessary be construed to denote
the plural number, and vice versa, and words of the masculine gender shall where
necessary denote the feminine or neuter gender.
SECTION 13.13. Execution in Counterparts. This Agreement may be executed in
any number of counterparts each of which shall be deemed an original and all of
which collectively shall constitute one instrument.
SECTION 13.14. Provisions to Comply with the Investment Company Act of
1940. Only Qualified Purchasers may invest their assets and participate in this
Trust. Any provision of this Trust or Series that is not in conformance with the
Investment Company Act of 1940 shall be amended to make such provision
conforming. This Trust has been created as a trust under the laws of the State
of New York, and at all times shall be maintained as such.
SECTION 13.15. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Trust Agreement shall be held contrary
to any express provision of law or contrary to policy of express law, though not
expressly prohibited, or against public policy, or shall for any reason
whatsoever be held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Trust Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Trust Agreement or of the
Certificates or the rights of the holders thereof.
SECTION 13.16. Dissolution of Sponsor/Depositor Not to Terminate. The
dissolution of the Sponsor from or for any cause whatsoever shall not operate to
terminate this Trust Agreement or a Series insofar as the duties and obligations
of the Trustee are concerned.
IN WITNESS WHEREOF, the Administrative Agent, the Sponsor, the Depositor,
the Evaluator and the Trustee have caused this Trust Agreement to be executed by
their duly authorized officers as of the date first above written.
XXXXX STREET PARTNERS, LLC, Administrative Agent,
Sponsor, Depositor and Evaluator
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
JPMorgan Chase Bank, Trustee
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
-00-
XXXXX XX XXXXXXXX )
: ss.:
COUNTY OF XXXX )
On the second day of August in the year 2002, before me the undersigned, a
Notary Public in and for said State, personally appeared Xxxxxxx X. Xxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument, and that such individual made
such appearance before the undersigned in Chicago, Illinois.
-----------------------------------
Notary Public
-00-
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK)
On the second day of August in the year 2002, before me the undersigned, a
Notary Public in and for said State, personally appeared Xxxx X. Xxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her capacity, and that by her
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
-----------------------------------
Notary Public
-26-
THIS REFERENCE TRUST AGREEMENT dated as of August 5, 2002 ("Reference Trust
Agreement") between Xxxxx Street Partners, L.P., as Administrative Agent,
Sponsor, Depositor and Evaluator, and JPMorgan Chase Bank, as Trustee, which
sets forth certain of its provisions in full and incorporates other of its
provisions by reference to a document entitled "Trust Agreement" dated as of
August 5, 2002 among the parties hereto (hereinafter called the "Trust
Agreement"), such provisions as are set forth in full provisions as are
incorporated by reference constituting a single instrument.
WITNESSETH THAT:
WHEREAS, the parties hereto have heretofore or concurrently herewith
entered into the Standard Terms Agreement in order to facilitate creation of
series of securities issued under a unit investment trust pursuant to the
provisions of the Investment Company Act of 1940 and the laws of the State of
New York, each of which series will be composed of redeemable securities
representing undivided interests in a trust fund composed of private equity
limited partnership interest ("PE interests") issued by a private investment
company, securities distributed in kind by the private investment company, and
certain other short-term securities;
WHEREAS, the parties now desire to create the First of the aforesaid
series;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the Administrative Agent and the Trustee agree as
follows:
Section 1. Incorporation of Trust Agreement. Subject to the provisions
of Section 2 of this Reference Trust Agreement set forth below, all of the
provisions of the Trust Agreement are herein incorporated by reference in their
entirety and shall be deemed to be a part of this instrument as fully to all
intents and purposes as though said provisions had been set forth in full in
this instrument, except as provided below in this Section 1. Unless otherwise
stated, section references shall refer to sections in the Trust Agreement.
Section 2. Specific Terms of this Series. The following terms are hereby
agreed to for this series of The Xxxxx Street Trust, which series shall be known
and designated as the "Banc Fund VI, L.P. Series." Redemptions shall be made by
using the "Redemption Form" in Appendix A.
Any property (other than cash) received as a distribution on a Portfolio
Security shall be dealt with as provided in the preceding paragraph.
The provisions of this paragraph shall supersede any contrary authorization
otherwise granted by this Trust Agreement.
a. The Securities subscribed for pursuant to Section 2.01 are Banc Fund VI,
L.P. and listed in Appendix B.
b. The initial undivided interest represented by each unit is 1/ 48,104,000.
c. The Mandatory Termination Date shall be __________ __, 20__.
d. The date on which persons shall begin to subscribe for Units shall be
August 5, 2002.
-27-
IN WITNESS WHEREOF, Xxxxx Street Partners, LLC has caused this Reference
Trust and Agreement to be executed by one of its Vice Presidents and attested by
one of its Secretaries, and JPMorgan Chase Bank has caused this Reference Trust
to be executed by one of their Authorized Signatories and their corporate seals
to be hereto affixed and attested by one of their Authorized Signatories, all as
of the date first above written.
XXXXX STREET PARTNERS, LLC, Administrative Agent
[Seal] By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Attest:
---------------------------
Name:
Title:
XX XXXXXX CHASE BANK
[Seal] By: _________________________________
Name:
Title: Vice President
Attest:
---------------------------
Name:
Title:
-00-
XXXXX XX XXXXXXXX )
: ss.:
COUNTY OF XXXX )
On the fifth day of August in the year 2002, before me the undersigned, a
Notary Public in and for said State, personally appeared Xxxxxxx X. Xxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument, and that such individual made
such appearance before the undersigned in Chicago, Illinois.
-----------------------------------
Notary Public
-00-
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK)
On the fifth day of August in the year 2002, before me the undersigned, a
Notary Public in and for said State, personally appeared , personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
-30-
APPENDIX A
REDEMPTION FORM
Xxxxx Street Partners, LLC
ATTN: ACCOUNTING
[DATE]
To Xxxxx Street Partners, LLC
I am a Unitholder in Xxxxx Street Trust - Banc Fund VI, L.P. Series, a series of
a trust formed under the laws of the State of New York on August 5, 2002,
writing to request a redemption. Pursuant to the Section 4.02 of the Trust
Agreement dated August 2, 2002 among Xxxxx Street Partners, LLC, as
Administrative Agent, Sponsor, Depositor and Evaluator and JPMorgan Chase Bank,
as Trustee ("Trust Agreement") and Reference Trust Agreement, below is the
requisite information:
a. My tax identification number is:
b. My name and address is:
c. Please redeem [INSERT NUMBER] of Units and send the redemption proceeds:
by: [mail to the address above]
by: [wire PLEASE COMPLETE ACCOUNT INFORMATION]
__________________________________________
__________________________________________
__________________________________________
Capitalized terms used in this letter and not otherwise defined have the
meanings established in the Trust Agreement and Reference Trust Agreement.
_________________________________
Name
Date: ________________________
Signature Guarantee:
-00-
XXXXXXXX X
SCHEDULE OF INVESTMENTS
-----------------------
THE XXXXX STREET TRUST
BANC FUND VI L.P. SERIES
