Exhibit 1.1
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Xxx Xxxxxx American Equity Opportunity Trust
Series 20
Trust Agreement
Dated: October 17, 1995
This Trust Agreement among Xxx Xxxxxx American Capital Distributors
Inc., as Depositor, American Portfolio Evaluation Services, a division of
Xxx Xxxxxx American Capital Investment Advisory Corp., as Evaluator, Xxx
Xxxxxx American Capital 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 "Van Xxxxxx Xxxxxxx Equity Opportunity Trust, Series 1
and Subsequent Series, Standard Terms and Conditions of Trust, Effective
November 21, 1991" (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(22), listed in the
Schedule hereto, have been deposited in trust under this Trust
Agreement.
2. The fractional undivided interest in and ownership of the
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.
3. Section 1.01(19) will be inapplicable for this Trust.
4. "Xxx Xxxxxx American Capital Brand Name Equity Trust" will
replace "Select Equity Trust" in Section 1.01(23).
5. The second sentence of Section 2.03(b) is hereby deleted
and replaced by the following: "Units will be held in certificated
form unless a Unitholder requests that his or her Units be held in
uncertificated form." A new sentence immediately preceding the last
sentence of Section 2.03(b) shall be added to the effect:
"Notwithstanding anything to the contrary in this Section, all Units
acquired through the Xxx Xxxxxx American Capital Brand Name Equity
Trust reinvestment plan shall be held only in uncertificated form."
6. Section 3.07(f) and (g) are hereby revised and a new
subsection (h) is hereby added as follows:
"(f) that all of the Securities in the Trust Fund will be
sold pursuant to termination of the Trust pursuant to Section
8.02 hereof;
(g) that such sale is required due to Units tendered for
redemption; and
(h) the sale of a Security is necessary to ensure that
the Xxx Xxxxxx American Capital Brand Name Equity Trust
continues to satisfy the qualifications of a regulated
investment company, including the requirements with respect to
diversification under Section 851 of the Internal Revenue
Code."
7. The second sentence in the second paragraph of Section
3.11 shall be revised as follows: "However, should any issuance,
exchange or substitution be effected notwithstanding such rejection
or without an initial offer, any securities, cash and/or property
received shall be deposited hereunder and shall be promptly sold, if
securities or property, by the Trustee unless the Depositor advises
the Trustee to keep such securities, cash or properties."
8. The requisite number of Units needed to be tendered to
exercise an In-Kind-Distribution shall be that number set forth in
the Prospectus.
9. The last sentence of the eighth paragraph of Section 5.02
shall be revised as follows: "Any balance remaining after such
disbursements shall be credited to the Capital Account and may be
used to acquire additional Securities (or, if permitted by
applicable rules and regulations as indicated by an opinion of
counsel, in other securities) or for any of the other purposes set
forth under the Indenture."
10. Section 8.01(a)(ii) shall be revised as follows: "(ii) to
make such other provision regarding matters or questions arising
hereunder as shall not materially adversely affect the interests of
the Unitholders or (iii) to make such amendments as may be
necessary for the Xxx Xxxxxx American Capital Brand Name Equity
Trust to continue to qualify as a regulated investment company for
federal income tax purposes."
11. Section 8.01(b)(3) shall be revised as follows: "(3)
adversely affect the characterization of the Xxx Xxxxxx American
Capital Brand Name Equity Trust as a regulated investment company
for federal income tax purposes."
12. The first and current second paragraphs of Section 3.12
shall be revised as subsections by starting the first paragraph with
an "(a)" and the second paragraph with a "(c)" and renumbering the
items (a)-(e) in the first paragraph as (i)-(v). A new second
paragraph shall be added as follows: (b) In the event a Security is
sold pursuant to Section 3.07(e) as a direct result of serious
adverse credit factors affecting the issuer of such Security or
pursuant to Section 3.07(h), the
Sponsor may, but is not obligated, to direct the reinvestment of the
proceeds of, the sale of such Security in any other securities which
meets the criteria necessary for inclusion in the Xxx Xxxxxx
American Capital Brand Name Equity Trust on the Initial Date of
Deposit.
13. Section 8.02 is hereby revised to require one affirmative
vote of Unitholders representing 66 2/3% of the then outstanding
Units to terminate the Trust rather than the 51% indicated therein.
14. Section 1.01(1) shall be amended to read as follows:
"(1) "Depositor" shall mean Xxx Xxxxxx American Capital
Distributors, Inc. and its successors in interest, or any
successor depositor appointed as hereinafter provided."
15. Section 1.01(3) shall be amended to read as follows:
"(3) "Evaluator" shall mean American Portfolio
Evaluation Services, a division of Xxx Xxxxxx American
Capital Investment Advisory Corp. and its successors in
interest, or any successor evaluator appointed as
hereinafter provided."
16. Section 1.01(4) shall be amended to read as follows:
"(4) "Supervisory Servicer" shall mean Xxx Xxxxxx
American Capital Investment Advisory Corp. and its
successors in interest, or any successor portfolio
supervisor appointed as hereinafter provided."
17. Section 3.01 of the Standard Terms and Conditions of Trust
shall be replaced in its entirety with the following:
"Section 3.01. Initial Costs. The following
organization and regular and recurring expenses of the
Trust shall be borne by the Trustee: (a) to the extent
not borne by the Depositor, expenses incurred in
establishing a Trust, including the cost of the initial
preparation and typesetting of the registration statement,
prospectuses (including preliminary prospectuses), the
indenture, and other documents relating to the Trust,
Securities and Exchange Commission and state blue sky
registration fees, the costs of the initial valuation of
the portfolio and audit of the Trust, the initial fees and
expenses of the Trustee, and legal and other out-of-pocket
expenses related thereto, but not including the expenses
incurred in the printing of preliminary prospectuses and
prospectuses, expenses incurred in the preparation and
printing of brochures and other advertising materials and
any other selling expenses, (b) the amount specified in
Section 3.05 and Article VIII, (c) to the extent permitted
by Section 6.02, auditing fees and, to the extent not
borne by the Depositor, expenses incurred in connection
with maintaining the Trust's registration statement
current with Federal and State authorities, (d) any
Certificates issued after the Initial Date of Deposit ;
and (e) expenses of any distribution agent. The Trustee
shall be reimbursed for those organizational expenses
referred to in clause (a) as provided in the Prospectus.
18. Section 6.01(i) of the Standard Terms and Conditions of
Trust shall be amended by adding the following to the beginning of
such Section:
"except as provided in Sections 3.01 and 3.05,"
19. Section 8.04 is hereby amended by deleting the first word
of such Section and replacing it with the following:
"Except as provided in Sections 3.01 and 3.05, the"
20. The first paragraph of Section 3.11 is hereby stricken and
replaced by the following:
Section 3.11. Notice to Depositor;. In the event that
the Trustee shall have been notified at any time of any
action to be taken or proposed to be taken with respect to
the Securities (including but not limited to the making of
any demand, direction, request, giving of any notice,
consent or waiver or the voting with respect to any
amendment or supplement to any indenture, resolution,
agreement or other instrument under or pursuant to which
the Zero Coupon Obligations have been issued) the Trustee
shall promptly notify the Depositor and shall thereupon
take such action or refrain from taking any action as the
Depositor shall in writing direct; in the absence of any
such direction the Trustee shall refrain from taking any
action."
21. The second and third sentences of the fourth paragraph of
Section 8.02 are hereby deleted and the following is added to the
end of the first sentence of such paragraph: ", which may include a
complete liquidation of the Securities".
In Witness Whereof, Xxx Xxxxxx American Capital Distributors Inc.
has caused this Trust Agreement to be executed by one of its Vice
Presidents or Assistant Vice Presidents and its corporate seal to be
hereto affixed and attested by its Secretary or one of its Vice
Presidents or Assistant Secretaries, American Portfolio Evaluation
Services, a division of Xxx Xxxxxx American Capital Investment Advisory
Corp., and Xxx Xxxxxx American Capital Investment Advisory Corp., have
each caused this Trust Indenture and Agreement to be executed by their
respective President or one of their respective Vice Presidents and the
corporate seal of Xxx Xxxxxx American Capital Investment Advisory Corp.
to be hereto affixed and attested to by the Secretary, Assistant
Secretary or one of the Assistant Vice Presidents of Xxx Xxxxxx American
Capital Investment Advisory Corp. and The Bank of New York, has caused
this Trust Agreement to be executed by one of its Vice Presidents and its
corporate seal to be hereto affixed and attested to by one of its
Assistant Treasurers all as of the day, month and year first above
written.
Xxx Xxxxxx American Capital
Distributors Inc.
By Xxxxxx X. Xxxxxxxxxx
Vice President
Attest:
By Xxxx X. Xxxxxxx
Assistant Secretary
American Portfolio Evaluation
Services, a division of Xxx Xxxxxx
American Capital Investment
Advisory Corp.
By Xxxxxx X. XxXxxxxxx
President
Attest
By Xxxxx X. Xxxxxx
Assistant Secretary
Xxx Xxxxxx American Capital
Investment Advisory Corp.
By Xxxxxx X. XxXxxxxxx
President
Attest
By Xxxxx X. Xxxxxx
Assistant Secretary
The Bank of New York
By Xxxxxxx Xxxxxxxx
Vice President
Attest
By Xxxxxxx Xxxxx
Assistant Treasurer
Schedule A to Trust Agreement
Securities Initially Deposited
in
Xxx Xxxxxx American Capital Equity Opportunity Trust, Series 20
(Note: Incorporated herein and made a part hereof is the "Portfolio" as
set forth in the Prospectus.)
