EXHIBIT 1.1
▇▇▇ ▇▇▇▇▇▇ EQUITY OPPORTUNITY TRUST
SERIES 108
TRUST AGREEMENT
Dated: August 10, 1998
This Trust Agreement among ▇▇▇ ▇▇▇▇▇▇ Funds Inc., as Depositor,
American Portfolio Evaluation Services, a division of ▇▇▇ ▇▇▇▇▇▇ Investment
Advisory Corp., as Evaluator, ▇▇▇ ▇▇▇▇▇▇ 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 "▇▇▇ ▇▇▇▇▇▇ 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 the amount set forth under "Summary of Essential
Financial Information - Fractional Undivided Interest in the Trust per Unit" 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 "Income and Capital Account 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 "Income and Capital Account 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. The term "Rollover Notification Date" shall mean each of the
"Rollover Notification Dates" set forth under "Summary of Essential Financial
Information" in the Prospectus.
7. The term "Special Redemption Date" shall mean each of the
"Special Redemption Dates" set forth under "Summary of Essential Financial
Information" in the Prospectus.
8. Section 5.02 of the Standard Terms and Conditions of Trust shall
be amended by adding the following to the end of such Section:
"Notwithstanding anything to the contrary herein, unless a Unitholder
properly makes an affirmative election to the contrary as specified in the
Prospectus, each Unitholder will be deemed to have tendered all Units then owned
for redemption to the Trustee on the first Special Redemption Date and shall
have such Units redeemed on such date as provided herein."
9. Section 6.04(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.
10. Section 1.01 (1), (3) and (4) shall be replaced in their entirety
by the following:
(1) "Depositor" shall mean ▇▇▇ ▇▇▇▇▇▇ Funds Inc. and its successors in
interest, or any successor depositor appointed as hereinafter provided.
(3) "Evaluator" shall mean American Portfolio Evaluation Services (a
division of an ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.) and its successors in
interest, or any successor evaluator appointed as hereinafter provided.
(4) The term "Supervisory Servicer" shall mean ▇▇▇ ▇▇▇▇▇▇ Investment
Advisory Corp. and its successors in interest, or any successor portfolio
supervisor as hereinafter provided.
11. 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.
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.
▇▇▇ ▇▇▇▇▇▇ Funds Inc.
By ▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Attest:
By ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Secretary
American Portfolio Evaluation Services,
a division of ▇▇▇ ▇▇▇▇▇▇ Investment
Advisory Corp.
By ▇▇▇▇▇ ▇▇▇▇▇
Vice President
Attest
By ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Secretary
▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By ▇▇▇▇▇ ▇▇▇▇▇
Vice President
Attest
By ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Secretary
The Bank of New York
By ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
Attest
By ▇▇▇▇▇▇ ▇▇▇▇
Assistant Treasurer
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
▇▇▇ ▇▇▇▇▇▇ EQUITY OPPORTUNITY TRUST, SERIES 108
(Note: Incorporated herein and made a part hereof are the "Portfolios"
as set forth in the Prospectus.)
