EXHIBIT 1.1
XXX XXXXXX FOCUS PORTFOLIOS
SERIES 192
TRUST AGREEMENT
Dated: December 2, 1999
This Trust Agreement among Xxx Xxxxxx Funds Inc., as Depositor,
American Portfolio Evaluation Services, a division of Xxx Xxxxxx Investment
Advisory Corp., as Evaluator, Xxx Xxxxxx Investment Advisory Corp., as
Supervisory Servicer, and The Bank of New York, as Trustee, sets forth certain
provisions in full and incorporates other provisions by reference to the
document entitled "Xxx Xxxxxx American Capital Equity Opportunity Trust, Series
87 and Subsequent Series, Standard Terms and Conditions of Trust, Effective
January 27, 1998" (herein called the "Standard Terms and Conditions of Trust")
and such provisions as are set forth in full and such provisions as are
incorporated by reference constitute a single instrument. All references herein
to Articles and Sections are to Articles and Sections of the Standard Terms and
Conditions of Trust.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor, Evaluator, Supervisory Servicer and Trustee agree as
follows:
PART I
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II hereof, all the provisions
contained in the Standard Terms and Conditions of Trust are herein incorporated
by reference in their entirety and shall be deemed to be a part of this
instrument as fully and to the same extent as though said provisions had been
set forth in full in this instrument.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
1. The Securities defined in Section 1.01(24), listed in the Schedule
hereto, have been deposited in trust under this Trust Agreement.
2. The fractional undivided interest in and ownership of each Trust
represented by each Unit is an amount the numerator of which is one and the
denominator of which is the amount set forth under "Summary of Essential
Financial Information - Initial Number of Units" in the Prospectus. Such
fractional undivided interest may be (a) increased by the number of any
additional Units issued pursuant to Section 2.03, (b) increased or decreased in
connection with an adjustment to the number of Units pursuant to Section 2.03,
or (c) decreased by the number of Units redeemed pursuant to Section 5.02.
3. The terms "Capital Account Record Date" and "Income Account Record
Date" shall mean the "Record Dates" set forth under "Summary of Essential
Financial Information" in the Prospectus.
4. The terms "Capital Account Distribution Date" and "Income Account
Distribution Date" shall mean the "Distribution Dates" set forth under "Summary
of Essential Financial Information" in the Prospectus.
5. The term "Mandatory Termination Date" shall mean the "Mandatory
Termination Date" set forth under "Summary of Essential Financial Information"
in the Prospectus.
6. Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust and subject to the requirements set forth in this paragraph,
unless the Prospectus otherwise requires, the Sponsor may, on any Business Day
(the "Trade Date"), subscribe for additional Units as follows:
(a) Prior to the Evaluation Time on such Business Day, the Sponsor
shall provide notice (the "Subscription Notice") to the Trustee, by
telephone or by written communication, of the Sponsor's intention to
subscribe for additional Units. The Subscription Notice shall identify the
additional Securities to be acquired (unless such additional Securities are
a precise replication of the then existing portfolio) and shall either (i)
specify the quantity of additional Securities to be deposited by the
Sponsor on the settlement date for such subscription or (ii) instruct the
Trustee to purchase additional Securities with an aggregate value as
specified in the Subscription Notice.
(b) Promptly following the Evaluation Time on such Business Day, the
Sponsor shall verify with the Trustee the number of additional Units to be
created.
(c) Not later than the time on the settlement date for such
subscription when the Trustee is to deliver or assign the additional Units
created hereby, the Sponsor shall deposit with the Trustee (i) any
additional Securities specified in the Subscription Notice (or contracts to
purchase such additional Securities together with cash or a letter of
credit in the amount necessary to settle such contracts) or (ii) cash or a
letter of credit in an amount equal to the aggregate value of the
additional Securities specified in the Subscription Notice, and adding and
subtracting the amounts specified in the first and second sentences of
Section 5.01, computed as of the Evaluation Time on the Business Day
preceding the Trade Date divided by the number of Units outstanding as of
the Evaluation Time on the Business Day preceding the Trade Date, times the
number of additional Units to be created.
(d) On the settlement date for such subscription, the Trustee shall,
in exchange for the Securities and cash or letter of credit described
above, deliver to, or assign in the name of or on the order of, the Sponsor
the number of Units verified by the Sponsor with the Trustee.
7. Section 6.01(e) is hereby replaced with the following:
(e) (1) Subject to the provisions of subparagraph (2) of this
paragraph, the Trustee may employ agents, sub-custodians, attorneys,
accountants and auditors and shall not be answerable for the default or
misconduct of any such agents, sub-custodians, attorneys, accountants or
auditors if such agents, sub-custodians, attorneys, accountants or auditors
shall have been selected with reasonable care. The Trustee shall be fully
protected in respect of any action under this Indenture taken or suffered
in good faith by the Trustee in accordance with the opinion of counsel,
which may be counsel to the Depositor acceptable to the Trustee, provided,
however that this disclaimer of liability shall not excuse the Trustee from
the responsibilities specified in subparagraph (2) below. The fees and
expenses charged by such agents, sub-custodians, attorneys, accountants or
auditors shall constitute an expense of the Trust reimbursable from the
Income and Capital Accounts of the affected Trust as set forth in section
6.04 hereof.
(2) The Trustee may place and maintain in the care of an Eligible
Foreign Custodian (which is employed by the Trustee as a sub-custodian as
contemplated by subparagraph (1) of this paragraph (e) and which may be an
affiliate or subsidiary of the Trustee or any other entity in which the
Trustee may have an ownership interest) any investments (including foreign
currencies) for which the primary market is outside the United States, and
such cash and cash equivalents in amounts reasonably necessary to effect
the Trust's transactions in such investments, provided that:
(a) The Trustee shall perform all duties assigned to the Foreign
Custody Manager by Rule 17f-5 under the Investment Company Act of 1940
(17 CFR ss. 270.17f-5) ("Rule 17f-5"), as now in effect or as such
rule may be amended in the future. The Trustee shall not delegate such
duties.
(b) The Trustee shall exercise reasonable care, prudence and
diligence such as a person having responsibility for the safekeeping
of Trust assets would exercise, and shall be liable to the Trust for
any loss occurring as a result of its failure to do so.
(c) The Trustee shall indemnify the Trust and hold the Trust
harmless from and against any risk of loss of Trust assets held in
accordance with the foreign custody contract.
(d) The Trustee shall maintain and keep current written records
regarding the basis for the choice or continued use of a particular
Eligible Foreign Custodian pursuant to this subparagraph for a period
of not less than six years from the end of the fiscal year in which
the Trust was terminated, the first two years in an easily accessible
place. Such records shall be available for inspection by Unitholders
and the Securities and Exchange Commission at the Trustee's offices at
all reasonable times during its usual business hours.
(3) "Eligible Foreign Custodian" shall have the meaning assigned to it
in Rule 17f-5.
(4) "Foreign Custody Manager" shall have the meaning assigned to it in
Rule 17f-5.
8. Section 1.01 (1), (3) and (4) shall be replaced in their entirety by
the following:
(1) "Depositor" shall mean Xxx Xxxxxx Funds Inc. and its succesors in
interest, or any successor depositor appointed as hereinafter provided.
(3) "Evaluator" shall mean American Portfolio Evaluation Services (a
division of a Xxx Xxxxxx Investment Advisory Corp.) and its successors in
interest, or any successor evaluator appointed as hereinafter provided.
(4) "Supervisory Servicer" shall mean Xxx Xxxxxx Investment Advisory
Corp. and its successors in interest, or any successor portfolio supervisor
appointed as hereinafter provided.
9. Section 3.15 of the Standard Terms and Conditions of Trust is hereby
replaced in its entirety by the following:
Section 3.15. Deferred Sales Charge. If the Prospectus related to the
Trust specifies a deferred sale charge, the Trustee shall, on each Deferred
Sales Charge Payment Date and as permitted by such Prospectus, withdraw
from the Capital Account an amount per Unit equal to the Deferred Sales
Charge Payment and credit such amount to a special non-Trust account
maintained at the Trustee out of which the deferred sales charge will be
distributed to the Depositor. If the balance in the Capital Account is
insufficient to make any such withdrawal, the Trustee shall, as directed by
the Depositor, either advance funds in an amount equal to the proposed
withdrawal and be entitled to reimbursement of such advance upon the
deposit of additional moneys in the Capital Account, sell Securities and
credit the proceeds thereof to such special Depositor's account or credit
(if permitted by law) Securities in kind to such special Depositor's
Account. If a Unitholder redeems Units prior to full payment of any portion
of the deferred sales charge that remains unpaid and due as described in
the Prospectus on the Redemption Date, the Trustee shall, as provided in
the related Prospectus, on such Redemption Date, withhold from the
Redemption Price payable to such Unitholder an amount equal to the portion
of the deferred sales charge then due on such Redemption Date and
distribute such amount to such special Depositor's Account. The Depositor
may at any time instruct the Trustee in writing to distribute to the
Depositor cash or Securities previously credited to the special Depositor's
account. Amounts to be credited to the special Depositor's account with
respect to each Deferred Sales Charge Payment are due and payable to the
Depositor on the related Deferred Sales Charge Payment Date.
With respect to the Dow 5 & Tech Strategic Trust, December 1999 Series
A and The Dow 30 Index Trust, Series 9, the term "Deferred Sales Charge
Payment Dates" shall mean the 10th day of each month beginning April 10,
2000 and continuing through November 10, 2000. If any Deferred Sales Charge
Payment Date is not a Business Day, that Deferred Sales Charge Payment Date
shall be deemed to be the next Business Day. With respect to the Dow 5 &
Tech Strategic Trust, December 1999 Series A and The Dow 30 Index Trust,
Series 9, the term "Deferred Sales Charge Payment" shall mean a fraction of
the total maximum deferred sales charge specified in the Prospectus, the
numerator of which is one and the denominator of which is equal to the
total number of Deferred Sales Charge Payment Dates.
With respect to The Dow 5 & Tech Strategic Trust, December 1999 Series
B, the term "Deferred Sales Charge Payment Dates" shall mean the First Year
Deferred Sales Charge Payments Dates, the Second Year Deferred Sales Charge
Payment Date and the Third Year Deferred Sales Charge Payment Date as
defined herein. The term "First Year Deferred Sales Charge Payment Dates"
shall mean the 10th day of each month beginning April 10, 2000 and
continuing through November 10, 2000. The term "Second Year Deferred Sales
Charge Payment Date" shall mean March 1, 2001. The term "Third Year
Deferred Sales Charge Payment Date" shall mean March 1, 2002. If any
Deferred Sales Charge Payment Date is not a Business Day, that Deferred
Sales Charge Payment Date shall be deemed to be the next Business Day. With
respect to The Dow 5 & Tech Strategic Trust, December 1999 Series B, the
term "Deferred Sales Charge Payment" related to any First Year Deferred
Sales Charge Payment Date shall mean a fraction of the total maximum
deferred sales charge specified in the Prospectus to be charged prior to
March 1, 2001, the numerator of which is one and the denominator of which
is equal to the total number of First Year Deferred Sales Charge Payment
Dates. With respect to The Dow 5 & Tech Strategic Trust, December 1999
Series B, the term "Deferred Sales Charge Payment" related to the Second
Year Deferred Sales Charge Payment Date shall mean $0.15 per Unit of such
Trust outstanding on such date. With respect to The Dow 5 & Tech Strategic
Trust, December 1999 Series B, the term "Deferred Sales Charge Payment"
related to the Third Year Deferred Sales Charge Payment Date shall mean
$0.15 per Unit of such Trust outstanding on such date.
IN WITNESS WHEREOF, the undersigned have caused this Trust Agreement to
be executed and their corporate seals to be hereto affixed and attested; all as
of the day, month and year first above written.
Xxx Xxxxxx Funds Inc.
By Xxxxx X. Xxxxx
Senior Vice President
Attest:
By Xxxxxx X. Xxxxxxxxx
Vice President
American Portfolio Evaluation Services,
a division of Xxx Xxxxxx Investment Advisory Corp.
By Xxxxx X. Xxxxx
Senior Vice President
Attest
By Xxxxxx X. Xxxxxxxxx
Vice President
Xxx Xxxxxx Investment Advisory Corp.
By Xxxxx X. Xxxxx
Senior Vice President
Attest
By Xxxxxx X. Xxxxxxxxx
Vice President
The Bank of New York
By Xxxxxxx Xxxxx
Vice President
Attest
By Xxxxxx Xxxx
Assistant Treasurer
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED IN
XXX XXXXXX FOCUS PORTFOLIOS, SERIES 192
(Note: Incorporated herein and made a part hereof is each "Portfolio" as set
forth in the Prospectus.)
