Exhibit 1.1(b)
Nuveen Unit Trusts, Series 28
Trust Indenture and Agreement
Dated: January 15, 1999
This Trust Indenture and Agreement by and between Xxxx Nuveen & Co.
Incorporated, as Depositor and The Chase Manhattan Bank, as Trustee, sets forth
certain provisions in full and incorporates other provisions by reference to the
document entitled "Standard Terms and Conditions of Trust for Nuveen Unit Trust,
Series 4 and certain subsequent Series, effective May 29, 1997" (herein called
the "Standard Terms and Conditions of Trust"), and such provisions as 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 promises and of the mutual agreements herein
contained, the Depositor and the 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:
(a) The Securities defined in Section 1.01(1) listed in Schedule A
hereto have been deposited in trust under this Trust Indenture and
Agreement.
(b) The fractional undivided interest in and ownership of the Trust
Fund represented by each Unit for the Trusts on the Initial Date of Deposit
is the amount set forth under the captions "Essential Information --
Fractional Undivided Interest per Unit" in the Prospectus.
(c) The number of Units created of the Trusts are set forth under the
caption "Essential Information--Initial Number of Units" in the Prospectus
for the Trusts.
(d) Section 10.02 shall be amended to read in its entirety as
follows:
Section 10.02. Initial Costs. Subject to reimbursement as
hereinafter provided, the cost of organizing the Trust and the sale of the Trust
Units shall be borne by the Depositor, provided, however, that the liability on
the part of the Depositor under this section shall not include any fees or other
expenses incurred in connection with the administration of the Trust subsequent
to the deposit referred to in Section 2.01. Upon notification from the Depositor
that the primary offering period is concluded, the Trustee shall withdraw from
the Account or Accounts specified in the Prospectus or, if no Account is therein
specified, from the Capital Account, and pay to the Depositor the Depositor's
reimbursable expenses of organizing the Trust and sale of the Trust Units in an
amount certified to the Trustee by the Depositor. If the cash balance of the
Capital Account is insufficient to make such withdrawal, the Trustee shall, as
directed by the Depositor, sell Securities identified by the Depositor, or
distribute to the Depositor Securities having a value, as determined under
Section 4.01 as of the date of distribution, sufficient for such reimbursement.
The reimbursement provided for in this section shall be for the account of the
Unit holders of record at the conclusion of the primary offering period. Any
assets deposited with the Trustee in respect of the expenses reimbursable under
this Section 10.02 shall be held and administered as assets of the Trust for all
purposes hereunder. The Depositor shall deliver to the Trustee any cash
identified in the Statement of Net Assets of the Trust included in the
Prospectus not later than the 10 calendar days following the Initial Date of
Deposit or deposit of additional Securities, as applicable and the Depositor's
obligation to make such delivery shall be secured by the letter of credit
deposited pursuant to Section 2.01. Any cash which the Depositor has identified
as to be used for reimbursement of expenses pursuant to this Section 10.02 shall
be held by the Trustee, without interest, and reserved for such purpose and
accordingly, prior to the conclusion of the primary offering period, shall not
be subject to distribution or, unless the Depositor otherwise directs, used for
payment of redemptions in excess of the per Unit amount payable pursuant to the
next sentence. If a Unit holder redeems Units prior to the conclusion of the
primary offering period, the Trustee shall pay to the Unit holder, in addition
to the Redemption Value of the tendered Units, unless otherwise directed by the
Depositor, an amount equal to the estimated per Unit cost of organizing the
Trust and the sale of Trust Units set forth in the Prospectus, or such revision
thereof most recently communicated to the Trustee by the Depositor pursuant to
Section 5.01, multiplied by the number of Units tendered for redemption; to the
extent the cash on hand in the Trust is insufficient for such payment, the
Trustee shall have the power to sell Securities in accordance with Section 5.02.
As used herein, the Depositor's reimbursable expenses of organizing the Trust
and sale of the Trust Units shall include 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, SEC and state blue sky registration fees, the cost 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.
(e) Article I of the Standard Terms and conditions of Trust is hereby
amended to replace the definitions of "Capital Distribution Date" and
"Mandatory Termination Date" and to add the following definitions:
Capital Distribution Date
The meaning assigned to it in the Prospectus for a Trust.
Mandatory Termination Date
The meaning assigned to it in the Prospectus for a Trust.
Prospectus
The prospectus relating to a Trust in the form first used
to confirm sales of Units.
Evaluator
The party designated in the Prospectus for a Trust or any party
appointed by the Sponsor.
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Ex.1.1(b)
(f) The following shall be added at the end of the first
paragraph of subsection (a) of Section 5.03:
"The notice and form of election to be sent to Unitholders in respect
of any redemption and purchase of Units of a New Series as provided in this
section shall be in such form and shall be sent at such time or times as
the Depositor shall direct the Trustee in writing and the Trustee shall
have no responsibility therefor. The Distribution Agent acts solely as
disbursing agent in connection with purchases of Units pursuant to this
Section and nothing herein shall be deemed to constitute the Distribution
Agent a broker in such transactions."
(g) The following subsection (d) shall be added to Section 7.02:
(d) The Depositor may employ agents in connection with its
duties under Section 3.11 and 3.13 hereof and shall not be answerable for
the default or misconduct of such agents if they shall have been selected
with reasonable care. The fees of such agents shall be reimbursable to the
Depositor from the Trust Fund, provided, however, that the amount of such
reimbursement in any year (i) shall reduce the amount payable to the
Depositor for such year with respect to the service in question and shall
not exceed the maximum amount payable to the Depositor for such service for
such year and (ii) if such agent is an affiliate of the Depositor, the
amount of the reimbursement, when combined with (a) all compensation
received by such agent from other series of the Fund or other unit
investment trusts sponsored by the Depositor or its affiliates and (b) the
amount payable to the Depositor from the Trust Fund and from other series
of the Fund or other unit investment trusts sponsored by the Depositor or
its affiliates in respect of the service in question, shall not exceed the
aggregate cost of such agent and the Depositor of providing such service.
The Trustee shall pay such reimbursement against the Depositor's invoice
therefor upon which the Trustee may rely as the Depositor's certification
that the amount claimed complies with the provisions of this paragraph.
(h) Section 4.01 shall be amended to read in its entirety as
follows:
Section 4.01. Evaluation of Securities. The Evaluator shall
determine separately and promptly furnish to the Trustee and the Depositor
upon request the value of each issue of Securities as of the Evaluation
Time as provided in the following manner:
(a) The Evaluator will prepare each evaluation for which market
quotations for the Securities are available by the use of outside services
normally used and contracted with for this purpose. If the Securities are listed
on a national securities exchange or The NASDAQ Stock Market, the evaluation
will be based on the last sale price on the exchange or system (if a Security
is listed on the New York Stock Exchange, the last sale price on that exchange
shall apply) or, if there is no sale price on the exchange or system, at the
closing bid price on the exchange or system. If such market quotations are not
available, the Evaluator shall determine the value of the Securities. Such
evaluation shall generally be based on the current bid prices on the over-the-
counter market (unless it is determined that these prices are inappropriate
as a basis for evaluation). If such prices are not available on the over-the-
counter market, the evaluation will generally be made by the Evaluator in good
faith (1) on the basis of the current bid prices for comparable securities, (2)
by the Evaluator's appraising the value of the Securities in good faith at the
bid side of the market or (3) by any combination thereof. For each evaluation,
the Evaluator shall also determine and furnish to the Trustee and the Depositor
the aggregate of (a) the value of all Securities on the basis of such evaluation
and (b) on the basis of the information furnished to the Evaluator by the
Trustee pursuant to Section 3.02, the amount of cash then held in the Capital
Account which was received by the Trustee after the Record Date preceding such
determination less any amounts held in the Capital Account for distribution to
Unitholders on a subsequent Distribution Date when a Record Date occurs four
business days or less after such determination. For the purposes of the
foregoing, the Evaluator may obtain current prices for the Securities from
investment dealers or brokers (including the Depositor) that customarily deal in
similar securities.
With respect to any Security not listed on a national exchange or The
NASDAQ Stock Market, or, with respect to a Security so listed but The Evaluator
deems the last reported sale price on the relevant exchange to be inappropriate
as a basis for valuation, upon the Evaluator's request, the Depositor shall,
from time to time, designate one or more evaluation services or other sources
of information on which the Evaluator shall be authorized conclusively to rely
in evaluating such Security, and the Evaluator shall have no liability for any
errors in the information so received. The cost thereof shall be an expense
reimbursable to the Evaluator from the Income and Capital Accounts.
(b) Notwithstanding Section 4.01(a), except in those cases in
which the Securities are listed on a national securities exchange or The NASDAQ
Stock Market and the closing sales prices are used and except for Trust Fund
Evaluations required by Section 5.02 in determining Redemption Price, during the
initial offering period, the evaluations of the Securities shall generally be
made in the manner described in Section 4.01(a) based on the closing ask prices
of the Securities rather than the closing bid prices.
(i) Section 5.01 shall be amended to read in its entirety as
follows:
Section 5.01. Trust Fund Evaluation. As of the Evaluation Time
next following any tender by a Unitholder for redemption and on any other
business day desired by it or as may be required hereunder, the Trustee shall as
to each Trust Fund:
Add
(1) cash on hand in the Trust Fund (other than cash held
especially for the purchase of Contract Securities) and moneys in the process of
being collected from declared dividends,
(2) the aggregate value of each issue of the Securities in the
Trust Fund (including Contract Securities) as determined by the Evaluator
pursuant to Section 4.01, and
(3) all other assets of the Trust;
Deduct
(1) amounts representing any applicable taxes, governmental
charges or other charges pursuant to Section 3.03 payable out of the Trust Fund
and for which no deductions shall have previously been made for the purpose of
addition to the Reserve Account,
(2) amounts representing estimated accrued fees and expenses of
the Trust Fund including but not limited to unpaid fees and expenses of the
Trustee (including legal and auditing expenses), the Evaluator, the Depositor
and counsel, and
(3) amounts representing unpaid accrued organizational and
offering costs, and
(4) cash allocated for distribution to Unitholders of the Trust
Fund of record as of the business day prior to the evaluation then being made.
The resulting figure is herein called a "Trust Fund Evaluation."
For purposes of determining the Trust Fund Evaluation under this Section 5.01,
the Trustee shall rely upon the amounts representing unpaid accrued
organizational and offering costs in the estimated amount per Unit set forth in
the Prospectus until such time as the Depositor notifies the Trustee in writing
of a revised estimated amount per Unit representing unpaid accrued
organizational and offering costs. Upon receipt of such notice, the Trustee
shall use this revised estimated amount per Unit representing unpaid accrued
organizational and offering costs in determining the Trust Fund Evaluation but
such revision of the estimated expenses shall not affect calculations made prior
thereto and no adjustment shall be made in respect thereof.
(j) Notwithstanding anything to the contrary contained in
Sections 3.04, 3.11, 3.13, 4.03 and 8.05, expenses of each Trust shall be paid
to the appropriate party on or about the 15th day of each month. Until the
Trustee is notified by the Depositor that the primary offering period has
terminated, the fees, where applicable, shall be accrued daily and based on the
number of Units outstanding on each day.
After the primary offering period has terminated, the fees, where applicable,
shall be based on the number of Units outstanding on the most recent prior
Record Date specified in the Prospectus.
(k) Section 8.01(i) shall be amended to read in its entirety as
follows:
(i) Notwithstanding any provisions of this Agreement to the
contrary, no payment to a Depositor or to any principal underwriter (as defined
in the Investment Company Act of 1940) for the Trust Fund or to any affiliated
person (as so defined) or agent of a Depositor or such underwriter shall be
allowed the Trustee as an expense except for payment of such reasonable amounts
as the Securities and Exchange Commission may prescribe as compensation for
performing bookkeeping and other administrative services of a character normally
performed by the Trustee.
(l) The following replaces the first two sentences of Section
8:05:
The Trustee shall receive at the times and in the manner set
forth in Section 3.04 as compensation for performing the usual, ordinary, normal
and recurring services under this Agreement during the preceding month an amount
equal to the amount specified as compensation for the Trustee in the Prospectus.
Such fee shall accrue daily and be computed on the basis of the largest number
of Units outstanding during the period with respect to which such compensation
is paid.
(m) All references to the "NASDAQ National Market System" herein
and in the Standard Terms and Conditions of Trust are replaced with "The NASDAQ
Stock Market."
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In Witness Whereof, Xxxx Nuveen & Co. Incorporated, has caused this
Trust Indenture and Agreement for Nuveen Unit Trusts, Series 28 to be executed
by its President, one of its Vice Presidents or one of its Assistant Vice
Presidents and its corporate seal to be hereto affixed and attested by its
Secretary or its Assistant Secretary and The Chase Manhattan Bank has caused
this Trust Indenture and Agreement to be executed by one of its Vice Presidents
or Second 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.
Xxxx Nuveen & Co. Incorporated,
Depositor
By /s/ Xxxxxx X. Xxxxx
----------------------------
Authorized Officer
(Seal)
Attest:
By /s/ Xxxxx X. Xxxxx
-------------------------
Assistant Secretary
The Chase Manhattan Bank, Trustee
By /s/ Xxxxxx Xxxxxx
----------------------------
Assistant Vice President
(Seal)
Attest:
By /s/ Xxxxxx X. Xxxx
--------------------------
Assistant Treasurer
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Schedule A to the Trust Indenture and Agreement
Securities Initially Deposited
in
Nuveen Unit Trusts, SERIES 28
(Note: Incorporated herein and made a part hereof is the "Schedule of
Investments" as set forth for the Trusts in the Prospectus.)
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