Exhibit 1.1
Xxx Xxxxxx American Capital Equity Opportunity Trust
Series 23
Trust Agreement
Dated: December 12, 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,
Principal Financial Securities, Inc., 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. Notwithstanding anything to the contrary appearing in the
Standard Terms and Conditions of Trust, "Principal Financial
Securities, Inc. Financial Institutions Trust" will replace "Select
Equity Trust."
5. 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."
6. Notwithstanding anything to the contrary in the Standard
Terms and Conditions of Trust, the requisite number of Units needed
to be tendered to exercise an In Kind Distribution as set forth in
Sections 5.02 and 8.02 shall be that number set forth in the
Prospectus.
7. 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.
8. 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."
9. 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."
10. Section 1.01(4) shall be amended to read as follows:
"(4) "Supervisory Servicer" shall mean Principal
Financial Securities, Inc. and its successors in interest,
or any successor portfolio supervisor appointed as
hereinafter provided."
11. 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.
12. 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,"
13. 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"
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 Principal Financial Securities, Inc., have each caused this
Trust Indenture and Agreement to be executed by their respective
President or other officer and the corporate seal of each to be hereto
affixed and attested to by the Secretary, Assistant Secretary or one of
their respective Vice Presidents or Assistant Vice Presidents 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
Principal Financial Securities, Inc.
By Xxxx Xxxxxx
Executive Vice President
Attest
By Xxxxxx Xxxxxx
Vice President
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 23
(Note: Incorporated herein and made a part hereof is the "Portfolio" as
set forth in the Prospectus.)
