EXHIBIT 1.1
EVEREN UNIT INVESTMENT TRUSTS,
SERIES 39
TRUST AGREEMENT
This Trust Agreement dated as of November 7, 1995 between EVEREN
Securities, Inc., as Depositor, and The Bank of New York, 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 EVEREN Unit
Investment Trusts, Equity Trusts, Effective November 7, 1995" (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.
WITNESSETH THAT:
In consideration of the premises 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
this instrument.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
(1) The equity securities listed in the Schedule hereto have been
deposited in trust under this Trust Agreement as indicated in each Trust
named on the attached Schedule.
(2) For the purposes of the definition of the term "Unit" in Article
I, it is hereby specified that the fractional undivided interest in and
ownership of a Trust is the amount set forth in the section captioned
"Essential Information" in the final Prospectus of the Trust (the
"Prospectus") contained in Amendment No. 1 to the Trust's Registration
Statement (Registration No. 33-63111) as filed with the Securities and
Exchange Commission on November 7, 1995. The fractional undivided interest
may (a) increase by the number of any additional Units issued pursuant to
Section
2.03, (b) increase or decrease in connection with an adjustment to
the number of Units pursuant to Section 2.03, or (c) decrease by the number
of Units redeemed pursuant to Section 5.02.
(3) The terms "Income Account Record Date" and "Capital Account
Record Date" shall mean the dates set forth under "Essential Information--
Record and Computation Dates" in the Prospectus.
(4) The terms "Income Account Distribution Date" and "Capital
Account Distribution Date" shall mean the dates set forth under "Essential
Information--Distribution Dates" in the Prospectus.
(5) The term "Initial Date of Deposit" shall mean the date of this
Trust Agreement as set forth above.
(6) Section 1.01(19) is hereby stricken and replaced by the
following: ""Percentage Ratio" shall mean, for each Trust which will issue
additional Units pursuant to Section 2.03 hereof, the actual number of
shares of each Equity Security as a percent of all shares of Equity
Securities necessary to cause the Trust portfolio to replicate, to the
extent practicable, the Standard & Poor's 500 Stock Price Composite Index
immediately prior to any subsequent deposit of Securities as determined by
computer program output operated independent of the Depositor which tracks
such index."
(7) Section 2.01(b) is hereby amended by adding the following
immediately after the first sentence of the second paragraph of such
Section the following: "Such additional Securities may be deposited or
purchased in round lots; if the amount of the deposit is insufficient to
acquire round lots of each Security to be acquired, the additional
Securities shall be deposited or purchased in the order of the Securities
in the Trust most under-represented in the Trust's portfolio in comparison
to their percentage weighting in the Standard & Poor's 500 Stock Price
Composite Index as determined by computer program output operated
independent of the Depositor which tracks such index."
(8) The number of Units of a Trust referred to in Section 2.03 is as
set forth under "Essential Information--Number of Units" in the Prospectus.
(9) Section 3.07(a) is hereby amended by adding the following
subsections immediately after Section 3.07(a)(ix):
" (x) that the Security has been removed from the Standard & Poor's
500 Stock Price Composite Index; or
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(xi) that computer program output operated independent of the
Depositor which tracks the Standard & Poor's 500 Stock Price Composite
Index indicates that the Security is over-represented in the Trust's
portfolio in comparison to such Security's percentage weighting in
such index."
(10) Section 3.07 is hereby amended by changing the current
subsection (c) to subsection (d) and adding the following as a new
subsection (c):
" (c) In the event a Security is sold pursuant to Section
3.07(a)(x), the Depositor may direct the reinvestment of the proceeds
of the sale of such Security, to the extent practicable, into any
security which replaces such Security as a component of the Standard &
Poor's 500 Stock Price Composite Index or, if no security so replaces
such Security, into any other Securities which are under-represented
in the Trust's portfolio in comparison to their percentage weighting
in the Standard & Poor's 500 Stock Price Composite Index as determined
by computer program output operated independent of the Depositor which
tracks such index. In the event a Security is sold pursuant to
Section 3.07(a)(xi), the Depositor may direct the reinvestment of the
proceeds of the sale of such Security, to the extent practicable, into
any other Securities which are under-represented in the Trust's
portfolio in comparison to their percentage weighting in the Standard
& Poor's 500 Stock Price Composite Index as determined by computer
program output operated independent of the Depositor which tracks such
index. Without limiting the generality of the foregoing, in
determining whether such reinvestment is practicable, the Depositor
may, but is not obligated to, specifically consider the ability of the
Trust to reinvest such proceeds into round lots of a Security."
(11) The second paragraph of Section 3.10 is hereby stricken and
replaced with the following:
" In the event that an offer by the issuer of any of the Securities
or any other party shall be made to issue new securities, or to
exchange securities, for Trust Securities, the Trustee shall reject
such offer. 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; provided, however, if such securities are components of
the Standard & Poor's 500 Stock Price Composite Index, the Depositor
may advise the Trustee to keep such securities. The cash received in
such exchange and cash proceeds of any such sales shall, in the
following priority, be (1) reinvested, to the extent practicable, into
any Securities which are under-represented in the Trust's portfolio in
comparison to their percentage weighting in the Standard & Poor's 500
Stock Price Composite Index as determined by computer program output
operated independent of the Depositor which tracks such index or (2)
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distributed to Unitholders on the next Distribution Date in the manner
set forth in Section 3.04(b) regarding distributions from the Capital
Account. Without limiting the generality of the foregoing, in
determining whether such reinvestment is practicable, the Depositor
may, but is not obligated to, specifically consider the ability of the
Trust to reinvest such proceeds into round lots of a Security. Except
as provided in Article VIII, the Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of
any such rejection or sale."
(12) Notwithstanding anything to the contrary in Section 3.10, if at
any time equity securities of EVEREN Capital Corporation or any of its
affiliates are included as Securities in the portfolio of the Trust and the
Trustee shall have been notified of any action to be taken or proposed to
be taken by holders of such Securities, then the Trustee shall take such
action or refrain from taking any action so as to insure that such
Securities are voted as closely as possible in the same manner and the same
general proportion, with respect to all issues, as are the Securities held
by owners other than the Trust.
(13) For the purposes of Section 6.01(g), the liquidation amount is
the amount set forth under "Essential Information--Minimum Value of Trust
under which Trust Agreement may be Terminated" in the Prospectus.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed.
EVEREN Securities, Inc.,
Depositor
By
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Senior Vice President
THE BANK OF NEW YORK,
Trustee
By
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Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
EVEREN UNIT INVESTMENT TRUSTS,
SERIES 39
(Note: Incorporated herein and made a part hereof is the "Portfolio" as
set forth in the Prospectus.)
