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Exhibit
(a)(2)
Amended & Restated
Trust Agreement
AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
NEXTEL STRYPES TRUST
Dated as of February 27, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS...............................................2
ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 NAME......................................................6
SECTION 2.2 OFFICE....................................................6
SECTION 2.3 RATIFICATION AND APPROVAL OF ACTION OF EITHER OR
BOTH OF THE DEPOSITOR AND THE INITIAL TRUSTEE.............6
SECTION 2.4 DECLARATION OF TRUST; PURPOSES OF THE TRUST...............6
SECTION 2.5 GENERAL POWERS AND DUTIES OF THE TRUSTEES................ 6
SECTION 2.6 PORTFOLIO ACQUISITION.................................... 8
SECTION 2.7 PORTFOLIO ADMINISTRATION................................. 8
SECTION 2.8 MANNER OF SALES..........................................10
SECTION 2.9 LIMITATIONS ON TRUSTEE'S POWERS..........................11
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 THE TRUST ACCOUNT........................................11
SECTION 3.2 DISTRIBUTIONS TO HOLDERS.................................12
SECTION 3.3 SEGREGATION..............................................12
SECTION 3.4 INVESTMENTS..............................................12
ARTICLE IV
REDEMPTION
SECTION 4.1 REDEMPTION...............................................12
ARTICLE V
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF STRYPES
SECTION 5.1 FORM OF CERTIFICATE......................................13
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SECTION 5.2 TRANSFER OF STRYPES; ISSUANCE, TRANSFER AND
INTERCHANGE OF CERTIFICATES...............................13
SECTION 5.3 REPLACEMENT OF CERTIFICATES...............................14
SECTION 5.4 LIMITATION ON LIABILITY...................................14
SECTION 5.5 GENERAL PROVISIONS REGARDING THE STRYPES..................14
ARTICLE VI
ISSUANCE OF THE CONTRACT
SECTION 6.1 EXECUTION OF THE CONTRACT.................................15
ARTICLE VII
TRUSTEES
SECTION 7.1 TRUSTEES..................................................15
SECTION 7.2 VACANCIES.................................................15
SECTION 7.3 POWERS....................................................15
SECTION 7.4 MEETINGS..................................................16
SECTION 7.5 RESIGNATION AND REMOVAL...................................16
SECTION 7.6 LIABILITY.................................................16
SECTION 7.7 COMPENSATION..............................................17
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 MEETINGS OF HOLDERS.......................................17
SECTION 8.2 BOOKS AND RECORDS; REPORTS................................17
SECTION 8.3 DISSOLUTION...............................................18
SECTION 8.4 AMENDMENT AND WAIVER......................................19
SECTION 8.5 ACCOUNTANTS...............................................20
SECTION 8.6 NATURE OF HOLDER'S INTEREST...............................20
SECTION 8.7 DELAWARE LAW TO GOVERN....................................21
SECTION 8.8 NOTICES...................................................21
SECTION 8.9 SEVERABILITY..............................................21
SECTION 8.10 COUNTERPARTS..............................................21
SECTION 8.11 SUCCESSORS AND ASSIGNS....................................21
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AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of February 27,
1997 (the "Trust Agreement"), by and among ML IBK Positions, Inc. and Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, as sponsors (the "Sponsors"), Xxxxxx
X. Xxxxxxx, Xxxxxxx X. Xxxxxx III and Xxxxx X. X'Xxxxx, as trustees (the
"Trustees"), and the Holders (as defined herein), constituting Nextel STRYPES
Trust (the "Trust").
W I T N E S S E T H:
WHEREAS, Xxxx X. Xxxx, as depositor (the "Depositor") and Xxxxxxx X.
Xxxxxxxx, as trustee (the "Initial Trustee"), have previously entered into a
Trust Agreement dated as of October 25, 1995 (the "Original Agreement"),
creating ABC STRYPES Trust;
WHEREAS, the Depositor has transferred his interest in ABC STRYPES
Trust to the Sponsors;
WHEREAS, the Trustees hereby ratify and approve the transfer of the
interest of the Depositor in ABC STRYPES Trust to the Sponsors;
WHEREAS, pursuant to an Instrument of Appointment, Acceptance, and
Resignation, dated as of February 7, 1997 (the "Instrument"), the Initial
Trustee appointed the Trustees as successor trustees to the Initial Trustee, the
Trustees accepted such appointment, and the Initial Trustee thereupon resigned
as trustee of the Trust;
WHEREAS, the Sponsors hereby waive the thirty (30) day notice
requirement of Section 5 of the Original Agreement and ratify and approve the
actions taken pursuant to the Instrument;
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement in certain respects; and
WHEREAS, the Trust has previously issued one STRYPES to each of the
Sponsors in consideration of the aggregate purchase price therefor of $100,000,
or $50,000 per STRYPES, in satisfaction of the requirements of Section 14(a)(1)
under the Investment Company Act (as hereinafter defined);
NOW, THEREFORE, the parties hereto agree to amend and restate the
Original Agreement as provided herein. Upon the execution and delivery of
counterpart signature pages hereto by the parties hereto, the Original Agreement
will be automatically amended and restated in its entirety to read as provided
herein.
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ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Trust Agreement, the
following words and phrases shall have the meanings listed below. Any reference
to any agreement shall be a reference to such agreement as supplemented or
amended from time to time.
"ACCELERATION AMOUNT NOTICE" - An Acceleration Amount Notice as defined
in the Contract.
"ACCELERATION VALUE" - The Acceleration Value as defined in the
Contract.
"AGGREGATE ACCELERATION VALUE" - The Aggregate Acceleration Value as
defined in the Contract.
"ADMINISTRATION AGREEMENT" - The Administration Agreement, dated as of
March , 1997, between the Administrator and the Trust, and any substitute
agreement therefor entered into pursuant to Section 2.5(a) hereof.
"ADMINISTRATOR" - The Bank of New York or its successor as permitted
under Section 6.1 of the Administration Agreement or appointed pursuant to
Section 2.5(a) hereof.
"BUSINESS DAY" - Any day that is not a Saturday, a Sunday or a day on
which the New York Stock Exchange, NASDAQ National Market, or banking
institutions or trust companies in The City of New York are authorized or
obligated by law or executive order to close.
"CASH SETTLEMENT OPTION" - The option of each Contracting Stockholder
described in Section 2.5 of the Contract.
"CERTIFICATE" - Any certificate evidencing the ownership of STRYPES
substantially in the form of Exhibit A hereto.
"CLOSING" - The Closing as defined in the Contract.
"CODE" - The Internal Revenue Code of 1986, as amended from time to
time; each reference herein to any section of the Code or any regulation
thereunder shall constitute a reference to any successor provision thereto.
"COLLATERAL AGENT" - The Bank of New York or its successor as permitted
under the Security and Pledge Agreement.
"COMMENCEMENT DATE" - The day on which the Purchase Agreement is
executed.
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"COMMISSION" - The United States Securities and Exchange Commission.
"COMPANY" - Nextel Communications, Inc., a Delaware corporation.
"COMPANY SUCCESSOR" - Any surviving entity or subsequent surviving
entity of the Company.
"CONTRACT" - The forward purchase contract entered into by the Trust
and the Contracting Stockholders, substantially in the form of Exhibit C hereto.
"CONTRACTING STOCKHOLDER" - Each person named as a "Seller" in the
Contract.
"CUSTODIAN" - The Bank of New York or its successor as permitted under
paragraph 11 of the Custodian Agreement or appointed pursuant to Section 2.5(a)
hereof.
"CUSTODIAN AGREEMENT" - The Custodian Agreement, dated as of March ___,
1997, between the Custodian and the Trust, and any substitute agreement therefor
entered into pursuant to Section 2.5(a) hereof.
"DATE OF DELIVERY" - A Date of Delivery as defined in the Contract.
"DEPOSITARY" - The Depository Trust Company, or any successor thereto.
"DISTRIBUTION DATE" - Each ________, ________, ________ and ________ of
each year, commencing ________, 1997, to and including __________, 2000 or if
any such date is not a Business Day, then the first Business Day thereafter.
"EXCHANGE DATE" - , 2000.
_____________
"EVENT OF DEFAULT" - An Event of Default as defined in the Security and
Pledge Agreement.
"EXCHANGE" - The delivery by the Trustees to the Holders of Reference
Property (or, if one or more of the Contracting Stockholders elects to exercise
the Cash Settlement Option under the Contract, the amount of cash, or
combination of cash and Reference Property, specified in the Contract as payable
in respect thereof) in mandatory exchange for the STRYPES on the Exchange Date.
"FIRM CONSIDERATION AMOUNT" - The Firm Consideration Amount as defined
in the Contract.
"FIRM PAYMENT DATE" - The Firm Payment Date as defined in the Contract.
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"HOLDER" - The registered owner of any STRYPES as recorded on the books
of the Paying Agent.
"INDEPENDENT DEALERS" - Independent Dealers as defined in the Contract.
"INDEMNITY AGREEMENT" - The Fund Indemnity Agreement dated as of March
__, 1997, between the Trust and Xxxxxxx Xxxxx substantially in the form of
Exhibit D hereto.
"INVESTMENT COMPANY ACT" - The Investment Company Act of 1940, as
amended from time to time; each reference herein to any section of such Act or
any rule or regulation thereunder shall constitute a reference to any successor
provision thereto.
"MANAGING TRUSTEE" - The Trustee designated the Managing Trustee by
resolution of the Trustees.
"XXXXXXX XXXXX" - Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
"OPTION CONSIDERATION AMOUNT" - The Option Consideration Amount as
defined in the Contract.
"ORIGINAL AGREEMENT" - The meaning specified in the recitals hereof.
"PARTICIPANT" - A Person having an account with the Depositary.
"PAYING AGENT" - The Bank of New York or its successor as permitted
under Section 6.6 of the Paying Agent Agreement or appointed pursuant to Section
2.5(a) hereof.
"PAYING AGENT AGREEMENT" - The Paying Agent Agreement, dated as of
March __, 1997, between the Paying Agent and the Trust, and any substitute
agreement therefor entered into pursuant to Section 2.5(a) hereof.
"PERSON" - An individual, a partnership, a corporation, a trust, an
unincorporated association, a joint venture or other entity or a government or
any agency or political subdivision thereof.
"PROSPECTUS" - The prospectus of the Trust relating to the offering of
the STRYPES and constituting a part of the Registration Statement, as first
filed with the Commission pursuant to Rule 497(b) or (h) under the Securities
Act, and as subsequently amended or supplemented by the Trust.
"PURCHASE AGREEMENT" - The Purchase Agreement as described in the
Prospectus.
"QUARTERLY DISTRIBUTION" - $______ per STRYPES paid to each Holder on
each Distribution Date.
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"RECORD DATE" - Each ________, ________, ________, and ________ of each
year, commencing ________, 1997.
"REFERENCE PROPERTY" - The Reference Property as defined in the
Contract.
"REFERENCE SECURITY" - A Reference Security as defined in the Contract.
"REGISTRATION STATEMENT" - The Registration Statement on Form N-2
(Registration Nos. 33-63795; 811-7389) of the Trust, as amended.
"REORGANIZATION EVENT" - A Reorganization Event as defined in the
Contract.
"SECURITIES ACT" - The Securities Act of 1933, as amended.
"SECURITY AND PLEDGE AGREEMENT" - The Security and Pledge Agreement
among the Collateral Agent, the Contracting Stockholders and the Trust, securing
the obligations of the Contracting Stockholders under the Contract,
substantially in the form of Exhibit B hereto.
"STRYPES" - Structured Yield Product Exchangeable for Stock(sm)
representing a proportionate share of beneficial ownership in the Trust
evidencing a Holder's undivided interest in the Trust and right to receive a pro
rata distribution upon liquidation of the Trust Estate.
"TEMPORARY INVESTMENTS" - Direct short-term U.S. government
obligations, as specified from time to time by the Trustees or through standing
instructions from the Trustees to the Administrator or the Paying Agent.
"TRANSFER AGENT AND REGISTRAR" - With respect to any Reference Security
at any time, the Person then acting as Transfer Agent and Registrar for such
Reference Security.
"TRUST ACCOUNT" - The account created pursuant to Section 3.1 hereof.
"TRUST ESTATE" - The Contract and the U.S. Treasury Securities held at
any time by the Trust, together with any Temporary Investments held at any time
pursuant to Section 3.4 hereof, and any proceeds thereof or therefrom and any
other moneys held at any time in the Trust Account.
"UNDERWRITERS" - The several Underwriters named in the Purchase
Agreement.
"U.S. TREASURY SECURITIES" - The meaning specified in Section 2.6(b)
hereof.
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(sm)Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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ARTICLE II
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
SECTION 2.1 NAME. The Trust is named "Nextel STRYPES Trust," as such
name may be modified from time to time by the Trustees following written notice
to the Holders. The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Trustees.
SECTION 2.2 OFFICE. The address of the principal office of the Trust is
c/o Puglisi & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
On ten Business Days written notice to the Holders the Trustees may designate
another principal office.
SECTION 2.3 RATIFICATION AND APPROVAL OF ACTION OF EITHER OR BOTH OF
THE DEPOSITOR AND THE INITIAL TRUSTEE. The Sponsors and the Trustees hereby
ratify and approve any and all actions taken by either or both of the Depositor
and the Initial Trustee on behalf of the Trust on or prior to the date hereof.
SECTION 2.4 DECLARATION OF TRUST; PURPOSES OF THE TRUST. The Sponsors
hereby create the Trust in order that it may acquire the U.S. Treasury
Securities, enter into the Contract, issue and sell to the Sponsors and the
several Underwriters the STRYPES, hold the Trust Estate in trust for the use and
benefit of all present and future Holders and otherwise carry out the terms and
conditions of this Trust Agreement, all for the purpose of achieving the
investment objectives set forth in the Prospectus. The Trustees hereby declare
that they will accept and hold the Trust Estate in trust for the use and benefit
of all present and future Holders. The Depositor has heretofore deposited with
the Initial Trustee the sum of $1 to accept and hold in trust hereunder until
the issuance and sale of the STRYPES to the several Underwriters, whereupon such
sum shall be donated to an organization satisfying the requirements of Section
170(c)(2) of the Code selected by unanimous consent of the Trustees.
SECTION 2.5 GENERAL POWERS AND DUTIES OF THE TRUSTEES. In furtherance
of the provisions of Section 2.4 hereof, the Sponsors authorize and direct the
Trustees, on behalf of the Trust:
(a) to enter into and perform (and, in accordance with Section
8.4(a) hereof, amend), the Contract, the Security and Pledge Agreement,
the Purchase Agreement, the Indemnity Agreement, the Custodian
Agreement, the Administration Agreement and the Paying Agent Agreement
and to perform all obligations of the Trustees (including the
obligation to provide indemnity hereunder and thereunder) and enforce
all rights and remedies of the Trust under each of such agreements; and
if any of the Custodian Agreement, the Administration Agreement, the
Security and Pledge Agreement and the Paying Agent Agreement
terminates, or the agent of the Trust thereunder resigns or is
discharged, to appoint a substitute agent and enter into a new
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agreement with such substitute agent containing provisions
substantially similar to those contained in the agreement being
terminated; provided that in any such new agreement (i) the Custodian
and the Paying Agent shall each be a commercial bank or trust company
organized and existing under the laws of the United States of America
or any state therein, shall have full trust powers and shall have
minimum capital, surplus and retained earnings of not less than
$100,000,000; and (ii) the Administrator and the Collateral Agent shall
each be a reputable financial institution eligible and qualified in all
respects to carry out its obligations under the Administration
Agreement or the Security and Pledge Agreement, as the case may be;
(b) to hold the Trust Estate in trust, to create and
administer the Trust Account, to direct payments received by the Trust
to the Trust Account and to make payments out of the Trust Account as
set forth in Article III hereof;
(c) to issue and sell to the Underwriters an aggregate of up
to 8,243,875 STRYPES (including those STRYPES subject to the
over-allotment option of the several Underwriters provided for in the
Purchase Agreement) pursuant to the Purchase Agreement and as
contemplated by the Prospectus; provided, however, that subsequent to
the determination of the public offering price per STRYPES and related
underwriting discount for the STRYPES to be sold to the several
Underwriters but prior to the sale of the STRYPES to the several
Underwriters, the STRYPES originally issued to the Sponsors shall be
split into a greater number of STRYPES so that immediately following
such split the value of each STRYPES held by the Sponsors will equal
the aforesaid public offering price per STRYPES;
(d) to select independent public accountants and, subject to
the provisions of Section 8.5 hereof, to engage such independent public
accountants;
(e) to engage legal counsel and, to the extent required by
Section 2.7 hereof, to engage professional advisors and pay reasonable
compensation thereto;
(f) to defend any action commenced against the Trustees or the
Trust and to prosecute any action which the Trustees deem necessary to
protect the Trust and the rights and interests of Holders, and to pay
the costs thereof;
(g) to delegate any or all of its powers and duties hereunder
as contemplated by the Custodian Agreement, the Paying Agent Agreement
and the Administration Agreement, to the extent permitted by applicable
law; and
(h) to adopt and amend a code of regulations, and take any and
all such other actions as necessary or advisable to carry out the
purposes of the Trust, subject to the provisions hereof and applicable
law, including, without limitation, the Investment Company Act.
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SECTION 2.6 PORTFOLIO ACQUISITION. In furtherance of the provisions of
Section 2.4 hereof, the Sponsors further specifically authorize and direct the
Trustees, acting on behalf of the Trust:
(a) to enter into the Contract with respect to the Reference
Property with the Contracting Stockholders on the Commencement Date for
settlement on the date or dates provided thereunder and, subject to
satisfaction of the conditions set forth in the Contract, to pay to
each Contracting Stockholder the Firm Consideration Amount and any
Option Consideration Amount thereunder with the proceeds of the sale of
the STRYPES, net of the underwriting discount and net of the purchase
price paid for the U.S. Treasury Securities as provided in paragraph
(b) below; and, subject to the adjustments and exceptions set forth in
the Contract, the Contract shall entitle the Trust to receive from each
Contracting Stockholder on the date of Closing a specified number or
amount of each type of Reference Security and other property
constituting part of the Reference Property (or, if such Contracting
Stockholder elects to exercise the Cash Settlement Option under the
Contract, an amount of cash, or combination of cash and Reference
Property, with an equal value) so that the Trust may execute the
Exchange with the Holders; and
(b) to purchase for settlement on the Firm Payment Date, and
on any Date of Delivery, as appropriate, with the proceeds of the sale
the STRYPES, net of the underwriting discount, U.S. Treasury securities
from such brokers or dealers as the Trustees shall designate in writing
to the Administrator having the terms set forth on Schedule I hereto
("U.S. Treasury Securities").
SECTION 2.7 PORTFOLIO ADMINISTRATION. In furtherance of the provisions
of Section 2.4 hereof, the Sponsors further specifically authorize and direct
the Trustees:
(a) DETERMINATION OF REFERENCE PROPERTY ADJUSTMENTS. Upon
receipt of any notice pursuant to Section 6.5(a) of the Contract of an
event requiring an adjustment to the Reference Property, or upon
otherwise acquiring knowledge of such an event, to calculate the
required adjustment and furnish notice thereof to the Collateral Agent
and the Administrator or to request from the Administrator such further
information as may be necessary to calculate or effect the required
adjustment;
(b) SELECTION OF INDEPENDENT INVESTMENT BANK. At such times
and for such purposes provided in the Contract, to select and retain a
nationally recognized investment banking firm to determine the market
value of any Reference Property as provided in the Contract, including,
without limitation, Reference Property consisting of property other
than cash or Reference Securities, and to deliver to the Contracting
Stockholders notice pursuant to Section 8.1 of the Contract identifying
the firm proposed to be selected and retained, and to consult with the
Contracting Stockholders on such selection and retention as provided in
such Section 8.1;
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(c) ACCELERATION. Upon receipt of any notice pursuant to
Section 6.5(b) of the Contract that an Event of Default has occurred,
or upon otherwise acquiring notice that an Event of Default has
occurred, to request quotations from Independent Dealers, compute
Acceleration Value and Aggregate Acceleration Value and deliver an
Acceleration Amount Notice, in each case with respect to the Contract,
all as described in Article 7 of the Contract;
(d) DETERMINATION OF CONTRACT CONSIDERATION. To calculate, on
the date of Closing, the aggregate number or amount of each type of
Reference Security and other property constituting part of the
Reference Property (or, if the Cash Settlement Option under the
Contract is exercised, the amount of cash, or combination of cash and
Reference Property, with an equal value) required to be delivered by
each Contracting Stockholder under Sections 2.1, 2.4 and 2.5 of the
Contract or, if a Reorganization Event with respect to the Company or
any Company Successor shall have occurred, the aggregate number or
amount of each type of Reference Security and other property
constituting part of the Reference Property that would be required to
be delivered by each Contracting Stockholder under the Contract if the
Exchange Date were redefined to be the Early Settlement Date, all as
provided in Section 7.2 of the Contract; and to furnish notice of the
amounts so determined to the Collateral Agent and the Contracting
Stockholders;
(e) DISTRIBUTION OF CONTRACT CONSIDERATION. Unless an Event of
Default or a Reorganization Event with respect to the Company or any
Company Successor shall have occurred (in which event distribution of
proceeds shall be governed by Section 8.3 below) or one or more of the
Contracting Stockholders elects to exercise the Cash Settlement Option
with respect to all or a part of the Reference Property otherwise
deliverable under the Contract (in which event the cash received in
respect thereof shall be distributed pro rata to the Holders of
STRYPES);
(i) DETERMINATION OF FRACTIONAL UNITS OR
INTERESTS. To determine, on the Exchange Date: (A) for each
Holder of STRYPES, such Holder's pro rata share of the total
amount of each type of Reference Security and other property
constituting part of the Reference Property delivered to the
Trust at the Closing under the Contract; and (B) the amount in
cash equal to the value of the fractional units or interests
of any type of Reference Property, if any, allocable to each
Holder (including, in the case of the Depositary, the cash
amount allocable to beneficial owners of STRYPES who own
through Participants) and in the aggregate;
(ii) CASH FOR FRACTIONAL UNITS OR INTERESTS. To
sell, in the principal market therefor, on the Exchange Date,
an aggregate number or amount of each type of Reference
Security and other property constituting part of the Reference
Property equal to the aggregate number of fractional units or
interests of such type of Reference Property, if any,
determined pursuant to clause (i)(B) above, rounded down to
the nearest integral number;
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(iii) DELIVERY OF REFERENCE SECURITIES. To
deliver the remaining units of any Reference Security to the
Transfer Agent and Registrar on the Exchange Date, with
instructions that such units be re-registered and re-issued as
follows:
(A) for and in the name of each Holder
(other than the Depositary) who holds STRYPES in
definitive form, the Transfer Agent and Registrar
shall be instructed to issue definitive certificates
representing a number of units of such Reference
Security equal to such Holder's pro rata share of the
total number of units of such Reference Security
delivered to the Trust at the Closing under the
Contract, rounded down to the nearest integral
number;
(B) the Transfer Agent and Registrar shall
be instructed to transfer all remaining units of such
Reference Security to the account of the Custodian
held through the Depositary, who shall then be
instructed to transfer and credit such units of such
Reference Security to each Participant who holds
STRYPES, with each Participant receiving its pro rata
share of the total number of units of such Reference
Security delivered to the Trust at the Closing under
the Contract, reduced by the aggregate cash value of
any fractional units of such Reference Security
allocable to such Participant;
(iv) DELIVERY OF OTHER REFERENCE PROPERTY. To
distribute on the Exchange Date to each Holder of STRYPES such
Holder's pro rata share of the total number or amount of each
type of Reference Property consisting of cash or property
other than cash or a Reference Security delivered to the Trust
at the Closing under the Contract, rounded down to the nearest
integral number;
(v) DISTRIBUTION OF CASH IN RESPECT OF FRACTIONAL
UNITS OR INTERESTS. To distribute on the Exchange Date to each
Holder of STRYPES to which a fractional unit or interest of
any particular type of Reference Property is allocable as
determined pursuant to clause (i)(B) above such Holder's pro
rata portion of the proceeds obtained from the liquidation of
all fractional units or interests of such type of Reference
Property pursuant to clause (ii) above (net of any brokerage
or related expenses); and
(vi) RECORD DATE. The distributions described
in this paragraph (e) shall be made to Holders of record as of
the close of business on the Business Day preceding the
Exchange Date.
SECTION 2.8 MANNER OF SALES. Any sale of Trust property permitted under
Section 8.3(c) hereof shall be made through such executing brokers or to such
dealers as the Trustees, seeking best price and execution for the Trust, shall
designate in writing to
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the Paying Agent, taking into account such factors as price, commission, size of
order, difficulty of execution and brokerage skill required.
SECTION 2.9 LIMITATIONS ON TRUSTEES' POWERS. The Trustees,
acting on behalf of the Trust, are not permitted:
(a) to purchase or hold any securities or instruments
except for the U.S. Treasury Securities, the
Contract, any Reference Security received pursuant to
the Contract, and the Temporary Investments
contemplated by Section 3.4 hereof;
(b) to dispose of the Contract prior to the Exchange
Date;
(c) to issue any securities or instruments except for the
STRYPES, or to issue any STRYPES other than the
STRYPES sold to the Sponsors and the STRYPES to be
sold pursuant to the Purchase Agreement and until
such STRYPES have been so purchased and paid for in
full;
(d) to make short sales or purchases on margin;
(e) to write put or call options;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or
commodities contracts;
(i) to purchase restricted securities;
(j) to make loans; or
(k) to take any action, or direct or permit the
Administrator, the Paying Agent or the Custodian to
take any action, that would vary the investment of
the Holders within the meaning of Treasury Regulation
Section 301.7701-4(c), or otherwise take any action
or direct or permit any action to be taken that would
or could cause the Trust not to be a "grantor trust"
under the Code.
ARTICLE III
ACCOUNTS AND PAYMENTS
SECTION 3.1 THE TRUST ACCOUNT. The Trustees shall, upon issuance of the
STRYPES, establish with the Paying Agent an account to be called the "Trust
Account". All moneys received by the Trustees in respect of the Contract, the
U.S. Treasury Securities
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and any Temporary Investments held pursuant to Section 3.4 hereof, all moneys
received from the sale of the STRYPES to the Sponsors, and any proceeds from the
sale of the STRYPES to the Underwriters after the purchase of the Contract and
the U.S. Treasury Securities shall be credited to the Trust Account.
SECTION 3.2 DISTRIBUTIONS TO HOLDERS. On or shortly after each
Distribution Date the Trustees shall distribute to each Holder of record at the
close of business on the preceding Record Date, at the post office address of
the Holder appearing on the books of the Trust or Paying Agent or by any other
means mutually agreed upon by the Holder and the Trustees, an amount equal to
such Holder's pro rata share of the Quarterly Distribution computed as of the
close of business on such Distribution Date.
SECTION 3.3 SEGREGATION. All moneys and other assets deposited or
received by the Trustees hereunder shall be held by them in trust as part of the
Trust Estate until required to be disbursed or otherwise disposed of in
accordance with the provisions of this Trust Agreement, and the Trustees shall
handle such moneys and other assets in such manner as shall constitute the
segregation and holding in trust within the meaning of the Investment Company
Act.
SECTION 3.4 INVESTMENTS. To the extent necessary to enable the Paying
Agent to make the next succeeding Quarterly Distribution, any moneys deposited
with or received by the Trustees in the Trust Account shall be invested as soon
as possible by the Paying Agent in Temporary Investments maturing no later than
the Business Day preceding the next following Distribution Date. Except as
otherwise specifically provided herein or in the Paying Agent Agreement, the
Paying Agent shall not have the power to sell, transfer or otherwise dispose of
any Temporary Investment prior to the maturity thereof, or to acquire additional
Temporary Investments. The Paying Agent shall hold any Temporary Investment to
its maturity and shall apply the proceeds thereof upon maturity to the payment
of the next succeeding Quarterly Distribution. All such Temporary Investments
shall be selected from time to time by the Trustees or pursuant to standing
instructions from the Trustees to the Administrator, and the Administrator
and/or Paying Agent shall have no liability to the Trust or any Holder or any
other Person with respect to any such Temporary Investment. Any interest or
other income received on any moneys in the Trust Account shall, upon receipt
thereof, be deposited into the Trust Account. Notwithstanding the foregoing, not
more than 5% of the assets of the Trust may be held at any time in the form of
cash and Temporary Investments, and the Trustees shall distribute cash, or
liquidate Temporary Investments and distribute the proceeds thereof, if, when
and to the extent needed to maintain compliance with the foregoing restriction.
ARTICLE IV
REDEMPTION
SECTION 4.1 REDEMPTION. The Trustees shall have no right or obligation
to redeem STRYPES.
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ARTICLE V
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF STRYPES
SECTION 5.1 FORM OF CERTIFICATE. Each Certificate evidencing STRYPES
shall be countersigned manually or in facsimile by the Managing Trustee and
executed manually by the Paying Agent in substantially the form of Exhibit A
hereto with the blanks appropriately filled in, shall be dated the date of
execution and delivery by the Paying Agent and shall represent a fractional
undivided interest in the Trust, the numerator of which fraction shall be the
number of STRYPES set forth on the face of such Certificate and the denominator
of which shall be the total number of STRYPES outstanding at that time. All
STRYPES shall be issued in registered form and shall be numbered serially.
Pending the preparation of definitive Certificates, the Trustees may execute and
the Paying Agent shall authenticate and deliver temporary Certificates (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Paying Agent). Temporary Certificates shall be issuable as
registered Certificates substantially in the form of the definitive Certificates
but with such omissions, insertions and variations as may be appropriate for
temporary Certificates, all as may be determined by the Trustees with the
concurrence of the Paying Agent. Every temporary Certificate shall be executed
by the Managing Trustee and be authenticated by the Paying Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Certificates. Without unreasonable delay the Managing Trustee shall
execute and shall furnish definitive Certificates and thereupon temporary
Certificates may be surrendered in exchange therefor without charge at each
office or agency of the Paying Agent and the Paying Agent shall authenticate and
deliver in exchange for such temporary Certificates definitive Certificates for
a like aggregate number of STRYPES. Until so exchanged, the temporary
Certificates shall be entitled to the same benefits hereunder as definitive
Certificates.
SECTION 5.2 TRANSFER OF STRYPES; ISSUANCE, TRANSFER AND INTERCHANGE OF
CERTIFICATES. STRYPES may be transferred by the Holder thereof by presentation
and surrender of properly endorsed Certificates at the office of the Paying
Agent, accompanied by such documents executed by the Holder or his authorized
attorney as the Paying Agent deems necessary to evidence the authority of the
person making the transfer. Certificates issued pursuant to this Trust Agreement
are interchangeable for one or more other Certificates in an equal aggregate
number of STRYPES and all Certificates issued as may be requested by the Holder
and deemed appropriate by the Paying Agent shall be issued in denominations of
one STRYPES or any multiple thereof. The Paying Agent may deem and treat the
person in whose name any STRYPES shall be registered upon the books of the
Paying Agent as the owner of such STRYPES for all purposes hereunder and the
Paying Agent shall not be affected by any notice to the contrary. The transfer
books maintained by the Paying Agent for the purposes of this Section 5.2 hereof
shall include the name and address of the record owners of the STRYPES and shall
be closed in connection with the termination of the Trust pursuant to Section
8.3 hereof. A sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any such transfer shall be paid to the Paying
Agent by the Holder. A Holder may be required to pay a fee for each new
Certificate to be issued pursuant to the preceding paragraph in such
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amount as may be specified by the Paying Agent and approved by the Trustees. All
Certificates cancelled pursuant to this Trust Agreement may be voided by the
Paying Agent in accordance with the usual practice of the Paying Agent or in
accordance with the instructions of the Trustees; provided, however, that the
Paying Agent shall not be required to destroy cancelled Certificates. The Paying
Agent may adopt other reasonable rules and regulations for the registration,
transfer and tender of STRYPES as it may, in its discretion, deem necessary.
SECTION 5.3 REPLACEMENT OF CERTIFICATES. In case any Certificate shall
become mutilated or be destroyed, stolen or lost, the Paying Agent shall execute
and deliver a new Certificate in exchange and substitution therefor upon the
Holder's furnishing the Paying Agent with proper identification and satisfactory
indemnity, complying with such other reasonable regulations and conditions as
the Paying Agent may prescribe and paying such expenses and charges, including
any bonding fee, as the Paying Agent may incur or reasonably impose; provided
that if the Trust has dissolved or is in the process of dissolving, the Paying
Agent, in lieu of issuing such new Certificate, may, upon the terms and
conditions set forth herein, make the distributions set forth in Section 8.3(c)
hereof. Any mutilated Certificate shall be duly surrendered and cancelled before
any duplicate Certificate shall be issued in exchange and substitution therefor.
Upon issuance of any duplicate Certificate pursuant to this Section 5.3 hereof,
the original Certificate claimed to have been lost, stolen or destroyed shall
become null and void and of no effect, and any bona fide purchaser thereof shall
have only such rights as are afforded under Article 8 of the Uniform Commercial
Code to a Holder presenting a Certificate for transfer in the case of an
overissue.
SECTION 5.4 LIMITATION ON LIABILITY. Pursuant to Section3803(a) of the
Delaware Business Trust Act, 12 Del. C. Section3801, et seq., the Holders of the
STRYPES shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 5.5 GENERAL PROVISIONS REGARDING THE STRYPES.
(A) The consideration received by the Trust for the issuance
of the STRYPES shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(B) Upon issuance of the STRYPES as provided in this Trust
Agreement, the STRYPES so issued shall be deemed to be validly issued, fully
paid and non-assessable.
(C) Every person, by virtue of having become a Holder in
accordance with the terms of this Trust Agreement, shall be deemed to have
expressly assented and agreed to the terms of, and shall be bound by, this Trust
Agreement.
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ARTICLE VI
ISSUANCE OF THE CONTRACT
SECTION 6.1 EXECUTION OF THE CONTRACT. The Contract shall be
countersigned manually or in facsimile by the Managing Trustee and executed
manually by the Contracting Stockholders and shall be dated the date of
execution and delivery by the Contracting Stockholders.
ARTICLE VII
TRUSTEES
SECTION 7.1 TRUSTEES. The Trust shall have three Trustees who shall
initially be elected by the Initial Trustee. One Trustee shall be the Managing
Trustee and, as such, is authorized to execute documents and instruments on
behalf of the Trust. The Managing Trustee will be appointed by resolution of the
Trustees. Each Trustee shall serve until the next regular annual or special
meeting of Holders called for the purpose of electing Trustees and, then, until
such Trustee's successor is duly elected and qualified. Holders may not cumulate
their votes in the election of Trustees. Each Trustee shall not be considered to
have qualified for the office unless such Trustee shall agree to be bound by the
terms of this Trust Agreement and shall evidence his consent by executing this
Trust Agreement or a supplement hereto.
SECTION 7.2 VACANCIES. Any vacancy in the office of a Trustee may be
filled in compliance with Sections 10 and 16 of the Investment Company Act by
the vote, within 30 days, of the remaining Trustees; provided that if required
by Section 16 of the Investment Company Act, the Trustees shall forthwith cause
to be held as promptly as possible and in any event within 60 days (unless the
Commission by order shall extend such period) a meeting of Holders for the
purpose of electing Trustees in compliance with Sections 10 and 16 of the
Investment Company Act. Until a vacancy in the office of any Trustee is filled
as provided above, the remaining Trustees in office, regardless of their number,
shall have the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Trust Agreement. Election shall be by the
affirmative vote of Holders of a majority of the STRYPES entitled to vote
present in person or by proxy at a special meeting of Holders called for the
purpose of electing any Trustee. Each individual Trustee shall be at least 21
years of age and shall not be under any legal disability. No Trustee who is an
"interested person", as defined in the Investment Company Act, may assume office
if it would cause the composition of the Trustees of the Trust not to be in
compliance with the percentage limitations on interested persons in Section 10
of the Investment Company Act. Trustees need not be Holders. Notice of the
appointment or election of a successor Trustee shall be mailed promptly after
acceptance of such appointment by the successor Trustee to each Holder.
SECTION 7.3 POWERS. The Trust will be managed solely by the Trustees,
who will, subject to the provisions of Article II hereof, have complete and
exclusive control over the management, conduct and operation of the Trust's
business, and shall have the
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rights, powers and authority of a board of directors of a corporation organized
under Delaware law. The Trustees shall have fiduciary responsibility for the
safekeeping and use of all funds and assets of the Trust and shall not employ,
or permit another to employ, such funds or assets in any manner except for the
exclusive benefit of the Trust and except in accordance with the terms of this
Trust Agreement. Subject to the continuing supervision of the Trustees and as
permitted by applicable law, the functions of the Trust shall be performed by
the Custodian, the Paying Agent, the Administrator and such other entities
engaged to perform such functions as the Trustees may determine, including,
without limitation, any or all administrative functions.
SECTION 7.4 MEETINGS. Meetings of the Trustees shall be held from time
to time upon the call of any Trustee on not less than 48 hours' notice (which
may be waived by any or all of the Trustees in writing either before or after
such meeting or by attendance at the meeting unless the Trustee attends the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting has not been lawfully called or convened). The
Trustees shall act either by majority vote of the Trustees present at a meeting
at which at least a majority of the Trustees then in office are present or by a
unanimous written consent of the Trustees without a meeting. Except as otherwise
required under the Investment Company Act, all or any of the Trustees may
participate in a meeting of the Trustees by means of a conference telephone call
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to
such communications equipment shall constitute presence in person at such
meeting.
SECTION 7.5 RESIGNATION AND REMOVAL. Any Trustee may resign and be
discharged of the trust created by the Trust Agreement by executing an
instrument in writing resigning as Trustee, filing the same with the
Administrator and sending notice thereof to the remaining Trustees, and such
resignation shall become effective immediately unless otherwise specified
therein. Any Trustee may be removed in the event of incapacity by vote of the
remaining Trustees and for any reason by written declaration or vote of the
Holders of more than 66 2/3% of the outstanding STRYPES, notice of which vote
shall be given to the remaining Trustees and the Administrator. The resignation,
removal or failure to reelect any Trustee shall not cause the termination of the
Trust.
SECTION 7.6 LIABILITY. The Trustees shall not be liable to the Trust or
any Holder for any action taken or for refraining from taking any action except
in the case of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties of their office. Specifically, without limitation, the
Trustees shall not be responsible for or in respect of the recitals herein or
the validity or sufficiency of this Trust Agreement or for the due execution
hereof by any other Person, or for or in respect of the validity or sufficiency
of STRYPES or certificates representing STRYPES and shall in no event assume or
incur any liability, duty or obligation to any Holder or to any other Person,
other than as expressly provided for herein. The Trustees may employ agents,
attorneys, administrators, accountants and auditors, and shall not be answerable
for the default or misconduct of any such Persons if such Persons shall have
been selected with reasonable care. Action in good faith may include action
taken in good faith in accordance with an opinion of counsel. In no event
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shall any Trustee be personally liable for any expenses with respect to the
Trust. Each Trustee shall be indemnified from the Trust Account with respect to
any claim, liability, loss or expense incurred in acting as Trustee of the
Trust, including the costs and expenses of the defense against any such claim or
liability, except in the case of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties of his office.
SECTION 7.7 COMPENSATION. Each Trustee, other than a Trustee who is a
director, officer or employee of the Sponsors, any Underwriter, or the
Administrator or any affiliate thereof, shall receive a one-time, up-front fee
of $10,800, in respect of its annual fee and anticipated out-of-pocket expenses.
In addition, the Managing Trustee shall receive an additional one-time, up-front
fee of $3,600 for serving in such capacity. The Trustees will not receive any
pension or retirement benefits. In the event of the resignation or removal of a
Trustee, such Trustee shall remit to the Trust the portion of its fee ratable
for the period from the day of such resignation or removal through the Exchange
Date.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 MEETINGS OF HOLDERS. The Trustees shall not hold annual or
regular meetings of Holders except as set forth herein. A special meeting may be
called at any time by the Trustees or upon petition of Holders of not less than
51% of the STRYPES outstanding (unless substantially the same matter was voted
on during the preceding 12 months), and shall be called as provided in Section
7.2 hereof (or as otherwise required by the Investment Company Act and the rules
and regulations thereunder, including, without limitation, when requested by the
Holders of not less than 10% of the STRYPES outstanding for the purposes of
voting upon the question of the removal of any Trustee or Trustees). The
Trustees shall establish, and notify the Holders in writing of, the record date
for each such meeting which shall be not less than 10 nor more than 50 days
before the meeting date. Holders at the close of business on the record date
will be entitled to vote at the meeting. The Administrator shall, as soon as
possible after any such record date (or prior to such record date if
appropriate), mail by first class mail to each Holder a notice of meeting and a
proxy statement and form of proxy in the form approved by the Trustees and
complying with the Investment Company Act and the rules and regulations
thereunder. Except as otherwise specified herein or in any provision of the
Investment Company Act and the rules and regulations thereunder, any action may
be taken by vote of Holders of a majority of the STRYPES outstanding present in
person or by proxy if Holders of a majority of STRYPES outstanding on the record
date are so represented. Each STRYPES shall have one vote and may be voted in
person or by duly executed proxy. Any proxy may be revoked by notice in writing,
by a subsequently dated proxy or by voting in person at the meeting, and no
proxy shall be valid after eleven months following the date of its execution.
SECTION 8.2 BOOKS AND RECORDS; REPORTS. (a) The Trustees shall keep a
certified copy or duplicate original of this Trust Agreement on file at the
office of the Trust and the office of the Administrator available for inspection
at all reasonable times during its usual business hours by any Holder. The
Trustees shall keep proper books of
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record and account for all the transactions under this Trust Agreement at the
office of the Trust and the office of the Administrator, and such books and
records shall be open to inspection by any Holder at all reasonable times during
usual business hours. The Trustees shall retain all books and records in
compliance with Section 31 of the Investment Company Act and the rules and
regulations thereunder.
(b) With each payment to Holders the Paying Agent shall set forth,
either in the instruments by means of which payment is made or in a separate
statement, the amount being paid from the Trust Account expressed as a dollar
amount per STRYPES and the other information required under Section 19 of the
Investment Company Act and the rules and regulations thereunder. The Trustees
shall prepare and file or distribute reports as required by Section 30 of the
Investment Company Act and the rules and regulations thereunder. The Trustees
shall prepare and file such reports as may from time to time be required to be
filed or distributed to Holders under any applicable state or Federal statute or
rule or regulation thereunder, and shall file such tax returns as may from time
to time be required under any applicable state or Federal statute or rule or
regulation thereunder. One of the Trustees shall be designated by resolution of
the Trustees to make the filings and give the notices required by Rule 17g-1
under the Investment Company Act.
(c) In calculating the net asset value of the Trust as required by the
Investment Company Act, (i) the U.S. Treasury Securities will be valued at the
mean between the last current bid and asked prices or, if quotations are not
available, as determined in good faith by the Trustees, (ii) short-term
investments having a maturity of 60 days or less will be valued at cost with
accrued interest or discount earned included in interest receivable and (iii)
the Contract will be valued at the mean of the bid prices received by the
Administrator from at least three independent broker-dealer firms unaffiliated
with the Trust to be named by the Trustees who are in the business of making
bids on financial instruments similar to the Contract and with terms comparable
thereto.
SECTION 8.3 DISSOLUTION. (a) The Trust created hereby shall dissolve,
and its affairs be wound up, upon the earliest of (i) the date 90 days after the
execution of this Trust Agreement if (x) the STRYPES have not theretofore been
issued or (y) the net worth of the Trust is not at least $100,000 at such time,
(ii) the date of the repayment, sale or other disposition, as the case may be,
of all of the Contract, the U.S. Treasury Securities and any other securities
held hereunder, (iii) the date 10 Business Days after the Exchange Date (or, if
the Contract shall be accelerated pursuant to Article 7 thereof, 10 Business
Days after the date on which the Trust shall receive the Reference Property then
required to be delivered by the Contracting Stockholders, or the proceeds of any
sale of collateral pursuant to Section 6(c) of the Security and Pledge
Agreement), and (iv) the date which is 21 years less 91 days after the death of
the last survivor of all of the descendants of Xxxxxx X. Xxxxxxx living on the
date hereof. The Trust is irrevocable, the Sponsors have no right to withdraw
any assets constituting a portion of the Trust Estate, and the dissolution of
the Sponsors shall not operate to dissolve the Trust. The death or incapacity of
any Holder shall not operate to terminate this Trust Agreement, nor entitle his
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or
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winding up of the Trust, and shall not otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Written notice of any dissolution shall be sent to Holders
specifying the record date for any distribution to Holders and the time of
dissolution as determined by the Trustees, upon which the books maintained by
the Paying Agent pursuant to Section 5.2 hereof shall be closed.
(c) Subject to any applicable provisions of law, for purposes of
dissolution under Sections 8.3(a)(ii), (iii) and (iv) hereof, within five
Business Days after such dissolution, the Trustees shall, effect the sale of any
remaining property of the Trust, and the Paying Agent shall distribute pro rata
as soon as practicable thereafter to each Holder, upon surrender for
cancellation of its Certificates, its interest in the Trust Estate. Together
with the distribution to the Holders, the Trustees shall furnish the Holders
with a final statement as of the date of the distribution of the amount
distributable with respect to each STRYPES.
SECTION 8.4 AMENDMENT AND WAIVER. (a) This Trust Agreement, and any of
the agreements referred to in Section 2.5(a) hereof, may be amended from time to
time by the Trustees for any purpose prior to the issuance and sale to the
Underwriters of the STRYPES and thereafter without the consent of any of the
Holders (i) to cure any ambiguity or to correct or supplement any provision
contained herein or therein which may be defective or inconsistent with any
other provision contained herein or therein; (ii) to change any provision hereof
or thereof as may be required by applicable law or the Commission or any
successor governmental agency exercising similar authority; or (iii) to make
such other provisions in regard to matters or questions arising hereunder or
thereunder as shall not materially adversely affect the interests of the Holders
(as determined in good faith by the Trustees, who may rely on an opinion of
counsel).
(b) This Trust Agreement may also be amended from time to time by the
Trustees (or the performance of any of the provisions of the Trust Agreement may
be waived) with the consent by the required vote of the Holders in accordance
with Section 8.1 hereof; provided that this Trust Agreement may not be amended
(i) without the consent by vote of the Holders of all STRYPES then outstanding,
so as to increase the number of STRYPES issuable hereunder above the number of
STRYPES specified in Section 2.5(c) hereof or such lesser number as may be
outstanding at any time during the term of this Trust Agreement, (ii) to reduce
the interest in the Trust represented by STRYPES without the consent of the
Holders of such STRYPES, (iii) if such amendment is prohibited by the Investment
Company Act or other applicable law, (iv) without the consent by vote of the
Holders of all STRYPES then outstanding, if such amendment would effect a change
in the voting requirements set forth in Section 8.1 hereof or this Section 8.4,
or (v) without the consent by vote of the Holders of the lesser of (x) 67% or
more of the STRYPES represented at a special meeting of Holders, if more than
50% of the STRYPES outstanding are represented at such meeting, and (y) more
than 50% of the STRYPES outstanding, if such amendment would effect a change in
Section 2.4 or 2.9 hereof.
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(c) Promptly after the execution of any amendment, the Trustees shall
furnish written notification of the substance of such amendment to each Holder.
(d) Notwithstanding subsections (a) and (b) of this Section 8.4, no
amendment hereof shall permit the Trust, the Trustees, the Administrator, the
Paying Agent or the Custodian to take any action or direct or permit any Person
to take any action that (i) would vary the investment of Holders within the
meaning of Treasury Regulation Section 301.7701-4(c), or (ii) would or could
cause the Trust, or direct or permit any action to be taken that would or could
cause the Trust, not to be a "grantor trust" under the Code.
SECTION 8.5 ACCOUNTANTS. (a) The Trustees shall, in accordance with
Section 30 of the Investment Company Act, file annually with the Commission such
information, documents and reports as investment companies having securities
registered on a national securities exchange are required to file annually
pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended,
and the rules and regulations issued thereunder. The Trustees shall transmit to
the Holders, at least semi-annually, the reports required by Section 30(d) of
the Investment Company Act and the rules and regulations thereunder, including,
without limitation, a balance sheet accompanied by a statement of the aggregate
value of investments on the date of such balance sheet, a list showing the
amounts and values of such investments owned on the date of such balance sheet,
and a statement of income for the period covered by the report. Financial
statements contained in such annual reports shall be accompanied by a
certificate of independent public accounts based upon an audit not less in scope
or procedures than that which independent public accountants would ordinarily
make for the purpose of presenting comprehensive and dependable financial
statements and shall contain such information as the Commission may prescribe.
Each such report shall state that such independent public accountants have
verified investments owned, either by actual examination or by receipt of a
certificate from the Custodian.
(b) The independent public accountants referred to in subsection (a)
above shall be selected at a meeting held within 30 days before or after the
beginning of the fiscal year by the vote, cast in person, of a majority of the
Trustees who are not "interested persons" as defined in the Investment Company
Act and such selection shall be submitted for ratification at the first meeting
of Holders to be held as set forth in Section 8.1 hereof, and thereafter as
required by the Investment Company Act and the rules and regulations thereunder.
The employment of any independent public accountant for the Trust shall be
conditioned upon the right of the Holders by a vote of the lesser of (i) 67% or
more of the STRYPES present at a special meeting of Holders, if Holders of more
than 50% of STRYPES outstanding are present or represented by proxy at such
meeting or (ii) more than 50% of the STRYPES outstanding to terminate such
employment at any time without penalty.
(c) The foregoing provisions of this Section 8.5 are in addition to any
applicable requirements of the Investment Company Act and the rules and
regulations thereunder.
SECTION 8.6 NATURE OF HOLDER'S INTEREST. Each Holder holds at any given
time a beneficial interest in the Trust Estate, but does not have any right to
take title or possession of any portion of the Trust Estate. Each Holder
expressly waives any
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right he may have under any rule of law, or the provisions of any statute, or
otherwise, to require the Trustees at any time to account, in any manner other
than as expressly provided in this Trust Agreement, for the Reference Property,
the Contract, the U.S. Treasury Securities or other assets or moneys from time
to time received, held and applied by the Trustees hereunder. No Holder shall
have any right except as provided herein to control or determine the operation
and management of the Trust or the obligations of the parties hereto. Nothing
set forth herein or in the certificates representing STRYPES shall be construed
to constitute the Holders from time to time as partners or members of an
association.
SECTION 8.7 DELAWARE LAW TO GOVERN. This Trust Agreement is executed
and delivered in the State of Delaware, and all laws or rules of construction of
the State of Delaware, without regard to principles of conflict of laws, shall
govern the rights of the parties hereto and the Holders and the construction,
validity and effect of the provisions hereof.
SECTION 8.8 NOTICES. Any notice, demand, direction or instruction to be
given to the Sponsors hereunder shall be in writing and shall be duly given if
mailed or delivered to the Trust c/o Puglisi & Associates, 000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Managing
Trustee, or at such other address as shall be specified by the Sponsors to the
other parties hereto in writing. Any notice, demand, direction or instruction to
be given to the Trust and the Trustees hereunder shall be in writing and shall
be duly given if mailed or delivered to the Trust at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 and to each Trustee at such Trustee's address set forth
beneath its signature below, or such other address as shall be specified to the
other parties hereto by such party in writing. Any notice to be given to a
Holder shall be duly given if mailed, first class postage prepaid, or by such
other substantially equivalent means as the Trustees may deem appropriate, or
delivered to such Holder at the address of such Holder appearing on the registry
of the Paying Agent.
SECTION 8.9 SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Trust Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
and 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 8.10 COUNTERPARTS. This Trust Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 8.11 SUCCESSORS AND ASSIGNS. Whenever in this Trust Agreement
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Trust Agreement by the Sponsors and Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed.
ML IBK Positions, Inc.
By___________________________
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By___________________________
Name:
Title:
TRUSTEES:
___________________________________
Name: Xxxxxx X. Xxxxxxx
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
___________________________________
Name: Xxxxxxx X. Xxxxxx III
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
___________________________________
Name: Xxxxx X. X'Xxxxx
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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Schedule I
U.S. TREASURY SECURITIES
All terms specified are for stripped principal or interest components
of U.S. Treasury debt obligations.
Aggregate Face Amount, per Security, Payable at
STRIPS Payment Date Payment Date
------------ -------------- --------------------------------------------------
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EXHIBIT A
NEXTEL STRYPES TRUST
NO. ____________________ STRYPES CUSIP NO. _______
THIS CERTIFIES THAT ________ IS THE RECORD OWNER OF _______ FULLY PAID AND
NON-ASSESSABLE STRYPES, PAR VALUE $.10 PER STRYPES, OF NEXTEL STRYPES TRUST
CONSTITUTING FRACTIONAL UNDIVIDED BENEFICIAL INTERESTS IN NEXTEL STRYPES TRUST,
A TRUST CREATED UNDER THE LAWS OF THE STATE OF DELAWARE PURSUANT TO AN AMENDED
AND RESTATED TRUST AGREEMENT (THE "TRUST AGREEMENT") BETWEEN ML IBK POSITIONS,
INC. AND XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION AND THE TRUSTEES
NAMED THEREIN AND THE HOLDERS (AS DEFINED THEREIN). THIS CERTIFICATE IS ISSUED
UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND CONDITIONS OF THE TRUST
AGREEMENT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, TO WHICH THE HOLDER OF
THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND, A COPY
OF WHICH TRUST AGREEMENT IS AVAILABLE AT THE OFFICE OF THE TRUST'S ADMINISTRATOR
AND PAYING AGENT, THE BANK OF NEW YORK, 000 XXXXXXX XXXXXX, XXX XXXX, XXX XXXX
00000. THIS CERTIFICATE IS TRANSFERABLE AND INTERCHANGEABLE BY THE REGISTERED
OWNER IN PERSON OR BY HIS DULY AUTHORIZED ATTORNEY AT THE OFFICE OF THE PAYING
AGENT UPON SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED OR ACCOMPANIED BY A
WRITTEN INSTRUMENT OF TRANSFER AND ANY OTHER DOCUMENTS THAT THE PAYING AGENT MAY
REQUIRE FOR TRANSFER, IN FORM SATISFACTORY TO THE PAYING AGENT AND PAYMENT OF
THE FEES AND EXPENSES PROVIDED IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED
BY THE PAYING AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
DATED:
NEXTEL STRYPES TRUST
By______________________________
Xxxxxx X. Xxxxxxx
Managing Trustee
COUNTERSIGNED:
THE BANK OF NEW YORK,
as Paying Agent
By______________________________
Authorized Signature
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THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE AMENDED AND RESTATED TRUST AGREEMENT BETWEEN ML IBK POSITIONS,
INC. AND XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION AND THE TRUSTEES
NAMED THEREIN AND THE HOLDERS (AS DEFINED THEREIN) TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT--___Custodian___
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN-- as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act _________
tenants in common (State)
Additional abbreviations also may be used though not in the above list.
For value received, _______________________ hereby sell, assign
and transfer unto
Please insert social securities or
other identifying number of assignee
[ ]
________________________________________________________________________________
(Please Print or Typewrite Name and Address, Including Zip Code, of Assignee)
STRYPES of fractional undivided beneficial interest represented by the within
Certificate, and do hereby irrevocably constitute and appoint _________ Attorney
to transfer the said STRYPES on the books of the within-named Trust with full
power of substitution in the premises.
Dated: ______________________
__________________________________________
NOTICE: The Signature to this assignment must correspond
with the name as written upon the face of the
Certificate in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed: __________________________________________
The Signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings
and loan associations and credit unions with
membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.
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