AMENDMENT NO. 2 TO STANDARD TERMS AND CONDITIONS OF TRUST DATED AS OF JANUARY 1, 1998 AND EFFECTIVE JANUARY 13, 1998, AS AMENDED FOR DIAMONDS TRUST, SERIES 1 AND SUBSEQUENT AND SIMILAR SERIES OF THE DIAMONDS TRUST BETWEEN PDR SERVICES LLC, AS SPONSOR...
Exhibit 99.A1(3)
AMENDMENT NO. 2
TO
STANDARD TERMS AND CONDITIONS OF TRUST
DATED AS OF JANUARY 1, 1998
AND
EFFECTIVE JANUARY 13, 1998,
AS AMENDED
TO
STANDARD TERMS AND CONDITIONS OF TRUST
DATED AS OF JANUARY 1, 1998
AND
EFFECTIVE JANUARY 13, 1998,
AS AMENDED
FOR
DIAMONDS TRUST, SERIES 1
AND
SUBSEQUENT AND SIMILAR
SERIES OF THE
DIAMONDS TRUST
BETWEEN
PDR SERVICES LLC,
AS SPONSOR
AND
STATE STREET BANK AND TRUST COMPANY
AS TRUSTEE
DIAMONDS TRUST, SERIES 1
AND
SUBSEQUENT AND SIMILAR
SERIES OF THE
DIAMONDS TRUST
BETWEEN
PDR SERVICES LLC,
AS SPONSOR
AND
STATE STREET BANK AND TRUST COMPANY
AS TRUSTEE
DATED AS OF OCTOBER 24, 2008
AND
EFFECTIVE OCTOBER 24, 2008
AND
EFFECTIVE OCTOBER 24, 2008
THIS AMENDMENT No. 2 (‘‘AMENDMENT AGREEMENT’’) DATED AS OF AND EFFECTIVE OCTOBER 24, 2008 BETWEEN
PDR SERVICES LLC, AS SPONSOR (‘‘SPONSOR’’), AND STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE
(‘‘TRUSTEE’’), AMENDS THE DOCUMENT ENTITLED ‘‘STANDARD TERMS AND CONDITIONS OF TRUST DATED AS OF
JANUARY 1, 1998 AND EFFECTIVE JANUARY 13, 1998 FOR DIAMONDS TRUST, SERIES 1 AND SUBSEQUENT AND
SIMILAR SERIES OF THE DIAMONDS TRUST BETWEEN PDR SERVICES LLC, AS SPONSOR AND STATE STREET BANK AND
TRUST COMPANY AS TRUSTEE’’, AS AMENDED (HEREINAFTER REFERRED TO AS ‘‘STANDARD TERMS’’).
WITNESSETH THAT:
WHEREAS, the parties hereto have entered into the Standard Terms to facilitate the creation
of the DIAMONDS TRUST, Series 1 (‘‘Trust’’); and
WHEREAS,
since its inception, the Trust has been listed, and its shares have been traded, on the American Stock Exchange, LLC (“AMEX”), and;
WHEREAS, on October 1, 2008, NYSE Euronext (“NYSE”) completed its acquisition of AMEX and all
of its subsidiaries, including the Sponsor, and;
WHEREAS,
AMEX has been renamed “NYSE Alternext US LLC (“NYSE Alternext US”); and
WHEREAS, NYSE has decided to consolidate the listing and trading of exchange-traded funds and
structured products now listed on NYSE Alternext US and NYSE Arca, Inc. (“ NYSE Arca”) on NYSE
Arca, and;
WHEREAS, the Sponsor and the Trustee have determined that it will be in the best interests of
the Trust and its shareholders to move the listing of the units of the Trust from NYSE Alternext US
to NYSE Arca on or before December 31, 2008; and make all changes and amendments to the Standard
Terms to accomplish such purpose as more fully set forth below; and
WHEREAS, the parties hereto desire make certain other changes to the Standard Terms as more
fully set forth below;
NOW THEREFORE, in consideration of the premises and of the mutual agreements contained herein,
the Sponsor and the Trustee agree as follows:
1. The definition of the word “Exchange” in Section 1 of the Standard Terms shall be changed
from the “American Stock Exchange LLC” to now read “ NYSE Arca and any successor corporation
thereto.”
2. The definitions of the terms “Depository” and “NSCC” in Section 1 of the Standard Terms
shall be amended to include the phrase: “and any successor corporation thereto.”
3. The definitions of the term “License” in Section 1 of the Standard Terms shall be amended
to include the phrase: “,as further amended and restated by the Licensee and Dow Xxxxx on November
1, 2005, including the Sublicense, as the same may be from time to time amended in accordance with
its terms.”
4. The definition of “Sublicense” shall be added to Section 1 of the Standard Terms as
follows: “The agreement dated November 1, 2005 among State Street Bank and Trust Company, as
Trustee, State Street Global Markets, LLC, and Dow Xxxxx, as the same may be from time to time
amended in accordance with its terms.”
5. Any reference in the Standard Terms to an entity, whether by specific name or by duties and
responsibilities, shall be deemed to include any successor corporation thereto.
6. Section 10.06 of the Standard Terms shall be amended to include the new address and contact
information of the Sponsor and Trustee.
7. Pursuant to Section 10.01 of the Standard Terms, both parties to this Amendment Agreement
hereby agree that paragraphs (1)- (4) of this Amendment Agreement are made in regard to matters as
will not adversely affect the interests of Beneficial Owners in compliance with the provisions of
Section 10.01(a) thereof.
8. Pursuant to Section 10.01, the Trustee agrees that it shall promptly furnish each DTC
Participant with sufficient copies of a written notice of the substance of the terms of this
Amendment Agreement for transmittal by each such DTC Participant to the Beneficial Owners of the
Trust.
9. Except
as amended hereby, the Standard Terms and any and all amendments thereto
adopted prior the date hereof (collectively, the “Standard Terms”),
now in effect are in all respects ratified and confirmed hereby and
this Amendment Agreement and all of its provisions shall be deemed to be a part of the Standard
Terms.
10. This Amendment Agreement may be simultaneously executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed as
of the date hereof.
PDR SERVICES LLC, as Sponsor
| By: | /s/ Xxxx X. Xxxxxxx | ||||
| Name: Xxxx X. Xxxxxxx | |||||
| Title: Senior President |
| ATTEST: | /s/ Xxxxx Xxxxx | ||
| TITLE: | Vice President | ||
STATE STREET BANK AND TRUST COMPANY,
as Trustee
as Trustee
| By: | /s/ Xxxx X. Xxxxxx | ||||
| Name: Xxxx X. Xxxxxx | |||||
| Title: Senior Vice President |
| ATTEST: | /s/ Xxxxx X. Xxxxx | ||
| Name: | Xxxxx X. Xxxxx | ||
| Title: | Vice President |
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On
the 24th day of October in the year 2008 before me personally came to me known, who, being
by me duly sworn, did depose and say that she is the President of PDR Services LLC, the limited liability company described in and which executed the
above instrument; and that she signed her name thereto by like authority.
/s/
Xxxx Xxxxxxxx
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF NORFOLK )
: ss.:
COUNTY OF NORFOLK )
On this 23rd day of October in the year 2008 before me personally appeared to me known, who,
being by me duly sworn, did depose and say that he is Xxxx X. Xxxxxx, Senior Vice President of State Street Bank and Trust Company, the bank and trust company described in and which
executed the above instrument; and that he signed his name thereto by authority of the board of
directors of said bank and trust company.
/s/
Xxxx X. Xxxxxx
Notary Public
CERTIFICATE OF PDR SERVICES LLC
AS TO COMPLIANCE WITH SECTION 10.01(a)
OF THE STANDARD TERMS AND CONDITIONS OF
TRUST FOR THE DIAMONDS TRUST (“THE TRUST”)
DATED AS OF JANUARY 1, 1998, as amended
(THE “STANDARD TERMS”)
AS TO COMPLIANCE WITH SECTION 10.01(a)
OF THE STANDARD TERMS AND CONDITIONS OF
TRUST FOR THE DIAMONDS TRUST (“THE TRUST”)
DATED AS OF JANUARY 1, 1998, as amended
(THE “STANDARD TERMS”)
The undersigned, as President of PDR Services LLC (the “Sponsor”), does hereby certify in the
name and on behalf of the Sponsor, that, as of the date hereof
1. I am a duly appointed and qualified President of the Sponsor, acting as such;
2. I have both read and understood the text of the Amendment No. 2. to the “Standard Terms and
Conditions of Trust Dated as of January 1, 1998 and Effective January 13, 1998 for Diamonds Trust,
Series 1 and Subsequent and Similar Series of the Diamonds Trust Between PDR Services LLC, as
Sponsor and State Street Bank and Trust Company as Trustee”, as amended (“Standard Terms”) dated as
of and effective October 24, 2008 between PDR Services LLC, as Sponsor and State Street Bank And
Trust Company, as Trustee (“Amendment Agreement”); and
3. Upon due consideration of the facts and circumstances deemed to be relevant to the determination
required by Section 10.01 of the Standard Terms, such Amendment Agreement will not adversely affect
the interests of Beneficial Owners of the Trust.
IN WITNESS WHEREOF, the undersigned has executed this certificate in the name and on behalf of said
Trustee this 24th day of October, 2008
| PDR SERVICES, LLC |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | President | |||
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On the 24th day of October in the year 2008 before me personally came to me known, who,
being by me duly sworn, did depose and say that she is the President of PDR Services LLC, the
limited liability company described in and which executed the above instrument; and that she signed
her name thereto by like authority.
| /s/ Xxxx Xxxxxxxx | ||||
| Notary Public | ||||
Signed and Sworn before me this 24th day of October 2008.
CERTIFICATE OF STATE STREET BANK AND TRUST COMPANY
AS TO COMPLIANCE WITH SECTION 10.01(a)
OF THE STANDARD TERMS AND CONDITIONS OF
TRUST FOR THE DIAMONDS TRUST (“THE TRUST”)
DATED AS OF JANUARY 1, 1998, as amended
(THE “STANDARD TERMS”)
AS TO COMPLIANCE WITH SECTION 10.01(a)
OF THE STANDARD TERMS AND CONDITIONS OF
TRUST FOR THE DIAMONDS TRUST (“THE TRUST”)
DATED AS OF JANUARY 1, 1998, as amended
(THE “STANDARD TERMS”)
The undersigned, as Senior Vice President of State Street Bank and Trust Company (the “Trustee”),
does hereby certify in the name and on behalf of the Trustee, that, as of the date hereof:
1. I am a duly appointed and qualified executive of the Trustee, acting as such;
2. I have both read and understood the text of the Amendment No. 2 to the “Standard Terms
and Conditions of Trust Dated as of January 1, 1998 and Effective January 13, 1998 for Diamonds
Trust, Series 1 and Subsequent and Similar Series of the Diamonds Trust Between PDR Services LLC,
as Sponsor and State Street Bank and Trust Company as Trustee”, as amended (“Standard Terms”) dated
as of and effective October 24, 2008 between PDR Services LLC, as Sponsor and State Street Bank And
Trust Company, as Trustee (“Amendment Agreement”); and
3. Upon due consideration of the facts and circumstances deemed to be relevant to the
determination required by Section 10.01 of the Standard Terms, such Amendment Agreement will not
adversely affect the interests of Beneficial Owners of the Trust.
IN WITNESS WHEREOF, the undersigned has executed this certificate in the name and on behalf of said
Trustee this 23rd day of October, 2008.
| STATE STREET BANK AND TRUST COMPANY |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
COMMONWEALTH OF MASSACHUSETTS )
:ss.:
COUNTY OF SUFFOLK )
:ss.:
COUNTY OF SUFFOLK )
On this 23rd day of October in the year 2008 before me personally appeared to me known, who, being
by me duly sworn, did depose and say that he is Xxxx X. Xxxxxx, Senior Vice President of State
Street Bank and Trust Company, the bank and trust company described in and which executed the above
instrument; and that he signed his name thereto by proper authority.
| /s/ Xxxx X. Xxxxxx
My Commission Expires: 8/18/2011 |
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