FT 620
TRUST AGREEMENT
Dated: March 14, 2002
The Trust Agreement among Nike Securities L.P., as Depositor, JPMorgan
Chase Bank, as Trustee and First Trust Advisors L.P., as Evaluator and Portfolio
Supervisor, sets forth certain provisions in full and incorporates other
provisions by reference to the document entitled "Standard Terms and Conditions
of Trust for The First Trust Special Situations Trust, Series 22 and certain
subsequent Series, Effective November 20, 1991" (herein called the "Standard
Terms and Conditions of Trust"), 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, the Trustee, the Evaluator and the Portfolio
Supervisor agree as follows:
PART I
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II and Part III 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
FOR PREFERRED INCOME PORTFOLIO, SERIES 7
The following special terms and conditions are hereby agreed to:
A. The Securities initially deposited in the Trust pursuant to Section
2.01 of the Standard Terms and Conditions of Trust are set forth in the
Schedules hereto.
B. (1) The aggregate number of Units outstanding for the Trust on the
Initial Date of Deposit and the initial fractional undivided interest in and
ownership of the Trust represented by each Unit thereof are set forth in the
Prospectus in the section "Summary of Essential Information."
Documents representing this number of Units for the Trust are being
delivered by the Trustee to the Depositor pursuant to Section 2.03 of the
Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as set forth
in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus under
"Summary of Essential Information."
E. The Distribution Date shall be as set forth in the Prospectus
under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as set forth
in the Prospectus under "Summary of Essential Information."
G. First Trust Advisors L.P.'s compensation as referred to in
Section 4.03 of the Standard Terms and Conditions of Trust shall be an
annual fee in the amount of $.0098 per Unit.
H. The Trustee's Compensation Rate pursuant to Section 6.04 of the
Standard Terms and Conditions of Trust shall be an annual fee in the amount of
$.0096 per Unit, calculated based on the largest number of Units outstanding
during the calendar year except during the initial offering period as
determined in Section 4.01 of this Indenture, in which case the fee is
calculated based on the largest number of units outstanding during the period
for which the compensation is paid (such annual fee to be pro rated for any
calendar year in which the Trustee provides services during less than the whole
of such year). However, in no event, except as may otherwise be provided in the
Standard Terms and Conditions of Trust, shall the Trustee receive compensation
in any one year from any Trust of less than $2,000 for such annual compensation.
I. The Initial Date of Deposit for the Trust is March 14, 2002.
J. The minimum amount of Securities to be sold by the Trustee
pursuant to Section 5.02 of the Indenture for the redemption of Units shall be
100 shares.
K. The minimum number of Units a Unit holder must redeem in order to be
eligible for an in-kind distribution of Securities pursuant to Section 5.02
shall be 2,500 Units of the Trust.
PART III
A. Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, references to subsequent Series established after the date
of effectiveness of the First Trust Special Situations Trust, Series 24 shall
include the FT Series to which this Trust Agreement relates.
B. Notwithstanding anything to the contrary in the Prospectus,
parties to the trust agreement are hereby advised:
The Trusts are not sponsored, endorsed, sold or promoted by Dow
Xxxxx & Company, Inc. ("Dow Xxxxx"). Dow Xxxxx makes no representation or
warranty, express or implied, to the owners of the Trusts or any member of
the public regarding the advisability of investing in securities generally
or in the Trusts particularly. Dow Xxxxx' only relationship to the Sponsor
is the licensing of certain trademarks, trade names and service marks of
Dow Xxxxx and of the Dow Xxxxx Industrial AverageSM , which is determined,
composed and calculated by Dow Xxxxx without regard to the Sponsor or the
Trusts. Dow Xxxxx has no obligation to take the needs of the Sponsor or
the owners of the Trusts into consideration in determining, composing or
calculating to Dow Xxxxx Industrial AverageSM. Dow Xxxxx is not
responsible for and has not participated in the determination of the
timing of, prices at, or quantities of the Trusts to be issued or in the
determination or calculation of the equation by which the Trusts are to be
converted into cash. Dow Xxxxx has no obligation or liability in
connection with the administration, marketing or trading of the Trusts.
DOW XXXXX DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF
THE DOW XXXXX INDUSTRIAL AVERAGESM OR ANY DATA INCLUDED THEREIN AND DOW
XXXXX SHALL HAVE NO LIABILITY FOR ANY ERRORS, OMISSIONS, OR INTERRUPTIONS
THEREIN. DOW XXXXX MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO
BE OBTAINED BY THE SPONSOR, OWNERS OF THE TRUSTS, OR ANY OTHER PERSON OR
ENTITY FROM THE USE OF THE DOW XXXXX INDUSTRIAL AVERAGESM OR ANY DATA
INCLUDED THEREIN. DOW XXXXX MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND
EXPRESSLY DISCLAIMS ALL WARRANTIES, OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE WITH RESPECT TO THE DOW XXXXX INDUSTRIAL
AVERAGESM OR ANY DATA INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE
FOREGOING, IN NO EVENT SHALL DOW XXXXX HAVE ANY LIABILITY FOR ANY LOST
PROFITS OR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF
NOTIFIED OF THE POSSIBILITY THEREOF.
C. The term "Principal Account" as set forth in the Standard Terms and
Conditions of Trust shall be replaced with the term "Capital Account."
D. Section 1.01(2) shall be amended to read as follows:
"(2) "Trustee" shall mean JPMorgan Chase Bank, or any successor
trustee appointed as hereinafter provided."
All references to United States Trust Company of New York in the Standard
Terms and Conditions of Trust shall be amended to refer to JPMorgan Chase Bank.
E. Section 1.01(3) shall be amended to read as follows:
"(3) "Evaluator" shall mean First Trust Advisors L.P. and its
successors in interest, or any successor evaluator appointed as
hereinafter provided."
F. Section 1.01(4) shall be amended to read as follows:
"(4) "Portfolio Supervisor" shall mean First Trust Advisors
L.P. and its successors in interest, or any successor portfolio
supervisor appointed as hereinafter provided."
G. Section 1.01(26) shall be added to read as follows:
"(26) The term "Rollover Unit holder" shall be defined as set forth
in Section 5.05, herein."
H. Section 1.01(27) shall be added to read as follows:
"(27) If the Prospectus for a Trust contemplates the rollover of
Units as set forth in Section 5.05 herein, the term "Rollover Notification
Date" shall be defined as set forth in the Prospectus under "Summary of
Essential Information."
I. Section 1.01(28) shall be added to read as follows:
"(28) If the Prospectus for a Trust contemplates the rollover of
Units as set forth in Section 5.05 herein, the term "Rollover
Distribution" shall be defined as set forth in Section 5.05, herein."
J. Section 1.01(29) shall be added to read as follows:
"(29) If the Prospectus for a Trust contemplates the rollover of
Units as set forth in Section 5.05 herein, the term "Distribution Agent"
shall refer to the Trustee acting in its capacity as distribution agent
pursuant to Section 5.05 herein."
K. Section 1.01(30) shall be added to read as follows:
"(30) If the Prospectus for a Trust contemplates the rollover of
Units as set forth in Section 5.05 herein, the term "Special Redemption
and Liquidation Period" shall be as set forth in the Prospectus under
"Summary of Essential Information."
L. Paragraph (b) of Section 2.01 shall be restated in its entirety as
follows:
(b)(1)From time to time following the Initial Date of Deposit, the
Depositor is hereby authorized, in its discretion, to assign, convey to
and deposit with the Trustee (i) additional Securities, duly endorsed in
blank or accompanied by all necessary instruments of assignment and
transfer in proper form, (ii) Contract Obligations relating to such
additional Securities, accompanied by cash and/or Letter(s) of Credit as
specified in paragraph (c) of this Section 2.01, or (iii) cash (or a
Letter of Credit in lieu of cash) with instructions to purchase additional
Securities, in an amount equal to the portion of the Unit Value of the
Units created by such deposit attributable to the Securities to be
purchased pursuant to such instructions. Except as provided in the
following subparagraphs (2), (3) and (4) the Depositor, in each case,
shall ensure that each deposit of additional Securities pursuant to this
Section shall maintain, as nearly as practicable, the Percentage Ratio.
Each such deposit of additional Securities shall be made pursuant to a
Notice of Deposit of Additional Securities delivered by the Depositor to
the Trustee. Instructions to purchase additional Securities shall be in
writing, and shall specify the name of the Security, CUSIP number, if any,
aggregate amount, price or price range and date to be purchased. When
requested by the Trustee, the Depositor shall act as broker to execute
purchases in accordance with such instructions; the Depositor shall be
entitled to compensation therefor in accordance with applicable law and
regulations. The Trustee shall have no liability for any loss or
depreciation resulting from any purchase made pursuant to the Depositor's
instructions or made by the Depositor as broker.
(2) Additional Securities (or Contract Obligations therefor) may, at
the Depositor's discretion, 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 Security in the Trust most under-represented
immediately before the deposit with respect to the Percentage Ratio.
(3) If at the time of a deposit of additional Securities, Securities
of an issue deposited on the Initial Date of Deposit (or of an issue of
Replacement Securities acquired to replace an issue deposited on the
Initial Date of Deposit) are unavailable, cannot be purchased at
reasonable prices or their purchase is prohibited or restricted by
applicable law, regulation or policies, the Depositor may (i) deposit, or
instruct the Trustee to purchase, in lieu thereof, another issue of
Securities or Replacement Securities or (ii) deposit cash or a letter of
credit in an amount equal to the valuation of the issue of Securities
whose acquisition is not feasible with instructions to acquire such
Securities of such issue when they become available.
(4) Any contrary authorization in the preceding subparagraphs (1)
through (3) notwithstanding, deposits of additional Securities made after
the 90-day period immediately following the Initial Date of Deposit
(except for deposits made to replace Failed Contract Obligations if such
deposits occur within 20 days from the date of a failure occurring within
such initial 90-day period) shall maintain exactly the Percentage Ratio
existing immediately prior to such deposit.
(5) In connection with and at the time of any deposit of additional
Securities pursuant to this Section 2.01(b), the Depositor shall exactly
replicate Cash (as defined below) received or receivable by the Trust as
of the date of such deposit. For purposes of this paragraph, "Cash" means,
as to the Capital Account, cash or other property (other than Securities)
on hand in the Capital Account or receivable and to be credited to the
Capital Account as of the date of the deposit (other than amounts to be
distributed solely to persons other than holders of Units created by the
deposit) and, as to the Income Account, cash or other property (other than
Securities) received by the Trust as of the date of the deposit or
receivable by the Trust in respect of a record date for a payment on a
Security which has occurred or will occur before the Trust will be the
holder of record of a Security, reduced by the amount of any cash or other
property received or receivable on any Security allocable (in accordance
with the Trustee's calculations of distributions from the Income Account
pursuant to Section 3.05) to a distribution made or to be made in respect
of a Record Date occurring prior to the deposit. Such replication will be
made on the basis of a fraction, the numerator of which is the number of
Units created by the deposit and the denominator of which is the number of
Units which are outstanding immediately prior to the deposit. Cash
represented by a foreign currency shall be replicated in such currency or,
if the Trustee has entered into a contract for the conversion thereof, in
U.S. dollars in an amount replicating the dollars to be received on such
conversion."
M. The following shall be added immediately following the first
sentence of paragraph (c) of Section 2.01:
"The Trustee may allow the Depositor to substitute for any Letter(s)
of Credit deposited with the Trustee in connection with the deposits
described in Section 2.01(a) and (b) cash in an amount sufficient to
satisfy the obligations to which the Letter(s) of Credit relates. Any
substituted Letter(s) of Credit shall be released by the Trustee."
N. Section 2.01(c) of the Standard Terms and Conditions of Trust is
hereby amended by adding the following at the conclusion thereof:
"If any Contract Obligation requires settlement in a foreign
currency, in connection with the deposit of such Contract Obligation the
Depositor will deposit with the Trustee either an amount of such currency
sufficient to settle the contract or a foreign exchange contract in such
amount which settles concurrently with the settlement of the Contract
Obligation and cash or a Letter of Credit in U.S. dollars sufficient to
perform such foreign exchange contact."
O. Section 2.03(a) of the Standard Terms and Conditions of Trust
shall be amended by adding the following sentence after the first sentence of
such section:
"The number of Units may be increased through a split of the Units
or decreased through a reverse split thereof, as directed in writing by
the Depositor, at any time when the Depositor is the only beneficial
holder of Units, which revised number of Units shall be recorded by the
Trustee on its books. The Trustee shall be entitled to rely on the
Depositor's direction as certification that no person other than the
Depositor has a beneficial interest in the Units and the Trustee shall
have no liability to any person for action taken pursuant to such
direction."
P. Section 3.01 of the Standard Terms and Conditions of Trust shall
be replaced in its entirety with the following:
"Section 3.01. Initial Cost. 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. At the conclusion
of the period of time during which a Trust's organization expenses will be
included in the Public Offering Price of Units (the "Organization Expense
Period"), as set forth in the Prospectus for a Trust (as certified by the
Depositor to the Trustee), 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 in an amount
certified to the Trustee by the Depositor. In no event shall the amount
paid by the Trustee to the Depositor for the Depositor's reimbursable
expenses of organizing the Trust exceed the estimated per Unit amount of
organization costs set forth in the Prospectus for the Trust multiplied by
the number of Units of the Trust outstanding at the conclusion of the
Organization Expense Period; nor shall the Depositor be entitled to or
request reimbursement for expenses of organizing the Trust incurred after
the conclusion of the Organization Expense Period. 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. Securities sold or distributed to the Depositor to
reimburse the Depositor pursuant to this Section shall be sold or
distributed by the Trustee, to extent practicable, in the percentage ratio
then existing. The reimbursement provided for in this section shall be for
the account of the Unit holders of record at the conclusion of the
Organization Expense Period. Any assets deposited with the Trustee in
respect of the expenses reimbursable under this Section 3.01 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 expiration of the Delivery Period 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 3.01
shall be held by the Trustee, without interest, and reserved for such
purpose and, accordingly, prior to the conclusion of the Organization
Expense 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 Organization Expense
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 set forth in the Prospectus, or such lower 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 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."
Q. The second paragraph of Section 3.02 of the Standard Terms and
Conditions is hereby deleted and replaced with the following sentence:
"Any non-cash distributions (other than a non-taxable distribution
of the shares of the distributing corporation which shall be retained by a
Trust) received by a Trust shall be dealt with in the manner described at
Section 3.11, herein, and shall be retained or disposed of by such Trust
according to those provisions. The proceeds of any disposition shall be
credited to the Income Account of a Trust. Neither the Trustee nor the
Depositor shall be liable or responsible in any way for depreciation or
loss incurred by reason of any such sale."
R. Section 3.05.II(a) of the Standard Terms and Conditions of Trust is
hereby amended to read in its entirety as follows:
"II. (a) On each Distribution Date, the Trustee shall distribute to
each Unit holder of record at the close of business on the Record Date
immediately preceding such Distribution Date an amount per Unit equal to
such Unit holder's Income Distribution (as defined below), plus such Unit
holder's pro rata share of the balance of the Capital Account (except for
monies on deposit therein required to purchase Contract Obligations)
computed as of the close of business on such Record Date after deduction
of any amounts provided in Subsection I, provided, however, that the
Trustee shall not be required to make a distribution from the Capital
Account unless the amount available for distribution shall equal $1.00 per
100 Units.
Each Trust shall provide the following distribution elections: (1)
distributions to be made by check mailed to the post office address of the
Unit holder as it appears on the registration books of the Trustee, or (2)
if provided for in the Prospectus for a Trust, the following reinvestment
option:
The Trustee will, for any Unit holder who provides the Trustee
written instruction, properly executed and in form satisfactory to
the Trustee, received by the Trustee no later than its close of
business 10 business days prior to a Record Date (the "Reinvestment
Notice Date"), reinvest such Unit holder's distribution from the
Income and Capital Accounts in Units of the Trust, purchased from
the Depositor, to the extent the Depositor shall make Units
available for such purchase, at the Depositor's offering price as of
the third business day prior to the following Distribution Date, and
at such reduced sales charge as may be described in the prospectus
for the Trusts. If, for any reason, the Depositor does not have
Units of the Trust available for purchase, the Trustee shall
distribute such Unit holder's distribution from the Income and
Capital Accounts in the manner provided in clause (1) of the
preceding paragraph. The Trustee shall be entitled to rely on a
written instruction received as of the Reinvestment Notice Date and
shall not be affected by any subsequent notice to the contrary. The
Trustee shall have no responsibility for any loss or depreciation
resulting from any reinvestment made in accordance with this
paragraph, or for any failure to make such reinvestment in the event
the Depositor does not make Units available for purchase.
Any Unit holder who does not effectively elect reinvestment in Units
of their respective Trust pursuant to the preceding paragraph shall
receive a cash distribution in the manner provided in clause (1) of the
second preceding paragraph."
S. Section 3.05.II(b) of the Standard Terms and Conditions of Trust is
hereby amended to read in its entirety as follows:
"II. (b) For purposes of this Section 3.05, the Unit holder's Income
Distribution shall be equal to such Unit holder's pro rata share of the
cash balance in the Income Account computed as of the close of business on
the Record Date immediately preceding such Income Distribution after
deduction of (i) the fees and expenses then deductible pursuant to Section
3.05.I. and (ii) the Trustee's estimate of other expenses properly
chargeable to the Income Account pursuant to the Indenture which have
accrued, as of such Record Date, or are otherwise properly attributable to
the period to which such Income Distribution relates."
T. Paragraph (c) of Subsection II of Section 3.05 of the Standard
Terms and Conditions of Trust is hereby amended to read as follows:
"On each Distribution Date the Trustee shall distribute to each Unit
holder of record at the close of business on the Record Date immediately
preceding such Distribution Date an amount per Unit equal to such Unit
holder's pro rata share of the balance of the Capital Account (except for
monies on deposit therein required to purchase Contract Obligations)
computed as of the close of business on such Record Date after deduction
of any amounts provided in Subsection I."
U. Section 3.05 of Article III of the Standard Terms and Conditions of
Trust is hereby amended by deleting Section 3.05.I.(d) and replacing Section
3.05.I.(b) with the following:
"Section 3.05.I.(b) deduct from the Income Account or, to the extent
funds are not available in such Account, from the Capital Account and pay
to First Trust Advisors L.P. the amount that it is entitled to receive
pursuant to Section 4.03."
V. Section 3.07 of the Standard Terms and Conditions of Trust is amended
to delete the word "and" at the end of Section 3.07(f) and replace Section
3.07(g) with the following:
"(g) that such sale is required due to Units tendered for redemption;
(h) that the sale of Securities is necessary or advisable in order to
maintain the qualification of the Trust as a "regulated investment
company" in the case of a Trust which has elected to qualify as such; and
(i) that there has been a public tender offer made for a Security or a
merger or acquisition is announced affecting a Security, and that in the opinion
of the Sponsor the sale or tender of the Security is in the best interest of the
Unit holders."
W. Section 3.11 of the Standard Terms and Conditions of Trust is
hereby deleted in its entirety and replaced with the following language:
"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 by at least a legally
required number of holders of any Securities deposited in a Trust, the
Trustee shall take such action or omit from taking any action, as
appropriate, so as to insure that the Securities are voted as closely as
possible in the same manner and the same general proportion as are the
Securities held by owners other than such Trust.
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 pursuant
to the Depositor's direction, unless the Depositor advises the Trustee to
keep such securities or property. The Depositor may rely on the Portfolio
Supervisor in so advising the Trustee. The cash received in such exchange
and cash proceeds of any such sales shall be distributed to Unit holders
on the next distribution date in the manner set forth in Section 3.05
regarding distributions from the Capital Account. The Trustee shall not be
liable or responsible in any way for depreciation or loss incurred by
reason of any such sale.
Neither the Depositor nor the Trustee shall be liable to any person
for any action or failure to take action pursuant to the terms of this
Section 3.11.
Whenever new securities or property is received and retained by a
Trust pursuant to this Section 3.11, the Trustee shall provide to all Unit
holders of such Trust notices of such acquisition in the Trustee's annual
report unless prior notice is directed by the Depositor."
X. Article III of the Standard Terms and Conditions of Trust is
hereby amended by deleting Section 3.13 and replacing it with the following:
"Section 3.13. Deferred Sales Charge. If the prospectus related to
the Trust specifies a deferred sales charge, the Trustee shall, on the
dates specified in and as permitted by such Prospectus (the "Deferred
Sales Charge Payment Dates"), withdraw from the Capital Account, an amount
per Unit specified in such Prospectus and credit such amount to a special
non-Trust account designated by the Depositor out of which the deferred
sales charge will be distributed to or on the order of the Depositor on
such Deferred Sales Charge Payment Dates (the "Deferred Sales Charge
Account"). If the balance in the Capital Account is insufficient to make
such withdrawal, the Trustee shall, as directed by the Depositor, advance
funds in an amount required to fund the proposed withdrawal and be
entitled to reimbursement of such advance upon the deposit of additional
monies in the Capital Account, and/or sell Securities and credit the
proceeds thereof to the Deferred Sales Charge Account, provided, however,
that the aggregate amount advanced by the Trustee at any time for payment
of the deferred sales charge shall not exceed $15,000. Such direction
shall, if the Trustee is directed to sell a Security, identify the
Security to be sold and include instructions as to the execution of such
sale. In the absence of such direction by the Depositor, the Trustee shall
sell Securities sufficient to pay the deferred sales charge (and any
unreimbursed advance then outstanding) in full, and shall select
Securities to be sold in such manner as will maintain (to the extent
practicable) the relative proportion of number of shares of each Security
then held. The proceeds of such sales, less any amounts paid to the
Trustee in reimbursement of its advances, shall be credited to the
Deferred Sales Charge Account. If a Unit holder redeems Units prior to
full payment of the deferred sales charge, the Trustee shall, if so
provided in the related Prospectus and, except for situations in which the
Trust Fund Evaluation determined as provided in Section 5.01 hereof has
been reduced by the amount of any unpaid accrued deferred sales charge, on
the Redemption Date, withhold from the Redemption Price payable to such
Unit holder an amount equal to the unpaid portion of the deferred sales
charge and distribute such amount to the Deferred Sales Charge Account. If
the Trust is terminated for reasons other than that set forth in Section
6.01(g), the Trustee shall, if so provided in the related Prospectus on
the termination of the Trust, withhold from the proceeds payable to Unit
holders an amount equal to the unpaid portion of the deferred sales charge
and distribute such amount to the Deferred Sales Charge Account. If the
Trust is terminated pursuant to Section 6.01(g), the Trustee shall not
withhold from the proceeds payable to Unit holders any amounts of unpaid
deferred sales charges. If pursuant to Section 5.02 hereof, the Depositor
shall purchase a Unit tendered for redemption prior to the payment in full
of the deferred sales charge due on the tendered Unit, the Depositor shall
pay to the Unit holder the amount specified under Section 5.02, which
amount, except for situations in which the Trust Fund Evaluation
determined as provided in Section 5.01 hereof has been reduced by the
amount of any unpaid accrued deferred sales charge, shall be reduced by
the unpaid portion of the deferred sales charge. All advances made by the
Trustee pursuant to this Section shall be secured by a lien on the Trust
prior to the interest of the Unit holders. If the related Prospectus
provides that the deferred sales charge shall accrue on a daily basis, the
"unpaid portion of the deferred sales charge" as used in this paragraph
shall mean the accrued and unpaid deferred sales charge as of the date of
redemption or termination, as appropriate. The Depositor represents that
the price paid by any Unit holder for Units acquired through reinvestment
of Trust distributions will be reduced by the aggregate amount of unpaid
deferred sales charge at the time of the purchase to off set any
subsequent collection by the Depositor of deferred sales charge in respect
of the Units so acquired."
Y. Article III of the Standard Terms and Conditions of Trust is
hereby amended by adding the following new Section 3.14:
"Section 3.14. Creation and Development Fee. If the Prospectus related to
the Trust specifies a creation and development fee, the Trustee shall, at the
conclusion of the primary offering period for a Trust, as certified by the
Depositor to the Trustee withdraw from the Capital Account, an amount equal to
the entire creation and development fee and credit such amount to a special
non-Trust account designated by the Depositor out of which the creation and
development fee will be distributed to the Depositor (the "Creation and
Development Account"). The reimbursement provided for in this section shall be
for the account of Unit holders of record at the conclusion of the primary
offering period and shall have no effect on the net asset value of Trust Units
prior to such date. If the balance in the Capital Account is insufficient to
make such withdrawal, the Trustee shall, as directed by the Depositor, advance
funds in an amount required to fund the proposed withdrawal and be entitled to
reimbursement of such advance upon the deposit of additional monies in the
Capital Account, and/or sell Securities and credit the proceeds thereof to the
Creation and Development Account, provided, however, that the aggregate amount
advanced by the Trustee at any time for payment of the creation and development
fee shall not exceed $15,000. Such direction shall, if the Trustee is directed
to sell a Security, identify the Security to be sold and include instructions as
to the execution of such sale. In the absence of such direction by the
Depositor, the Trustee shall sell Securities sufficient to pay the creation and
development fee (and any unreimbursed advance then outstanding) in full, and
shall select Securities to be sold in such manner as will maintain (to the
extent practicable) the relative proportion of number of shares of each Security
then held. The proceeds of such sales, less any amounts paid to the Trustee in
reimbursement of its advances, shall be credited to the Creation and Development
Account. If the Trust is terminated pursuant to Section 6.01(g), the Depositor
agrees to reimburse Unitholders for any amounts of the Creation and Development
Fee collected by the Depositor to which it is not entitled. All advances made by
the Trustee pursuant to this Section shall be secured by a lien on the Trust
prior to the interest of Unit holders. The Depositor agrees to reimburse the
Trust and any Unit holder any amount of Creation and Development Fee it receives
which exceeds the amount which the Depositor may receive under applicable laws,
regulations and rules."
Z. Article III of the Standard Terms and Conditions of Trust is hereby
amended by adding the following new Section 3.15:
"Section 3.15. Foreign Currency Exchange. Unless the Depositor shall
otherwise direct, whenever funds are received by the Trustee in foreign
currency, upon the receipt thereof or, if such funds are to be received in
respect of a sale of Securities, concurrently with the contract of the
sale for the Security (in the latter case the foreign exchange contract to
have a settlement date coincident with the relevant contract of sale for
the Security), the Trustee shall enter into a foreign exchange contract
for the conversion of such funds to U.S. dollars pursuant to the
instruction of the Depositor. The Trustee shall have no liability for any
loss or depreciation resulting from action taken pursuant to such
instruction."
AA. Article IV of the Standard Terms and Conditions of Trust is hereby
replaced with the following:
"ARTICLE IV
Evaluation of Securities; Compensation for Evaluation; Portfolio
Supervision and Bookkeeping and Administrative Services; Succession
Section 4.01. Evaluation of Securities (a) First Trust Advisors L.P.,
acting in its capacity as Evaluator, shall determine separately, shall promptly
furnish to the Trustee, and shall furnish to the Depositor upon request, the
value of each issue of Securities (including Contract Obligations) (the
"Evaluation") as of the close of trading on the New York Stock Exchange
(generally 4:00 p.m. Eastern time) (the "Evaluation Time") (i) on each Business
Day during the period in which the Units are being offered for sale to the
public and (ii) on any other day on which a Trust Fund Evaluation is to be made
pursuant to Section 5.01 or which is requested by the Depositor or the Trustee.
As part of the Trust Evaluation, the Evaluator shall determine separately and
promptly furnish to the Trustee, and to the Depositor upon request, the
Evaluation of each issue of Securities initially deposited in the Trust on the
Initial Date of Deposit. The Evaluator's determination of the offering prices of
the Securities on the Initial Date of Deposit shall be included in Schedule A
attached to the Trust Agreement.
(b) During the initial offering period, namely, from the date of
effectiveness of the Registration Statement under the Securities Act of 1933
relating to the Units to and including the day which is designated in writing by
the Depositor to the Trustee and Evaluator as the conclusion of such period,
such Evaluation shall be made in the following manner: if the Securities are
listed on a national or foreign securities exchange or The Nasdaq Stock Market,
such Evaluation shall generally be based on the closing sale price on the
exchange or system which is the principal market therefor, which shall be deemed
to be the New York Stock Exchange if the Securities are listed thereon (unless
the Evaluator deems such price inappropriate as a basis for evaluation), or if
there is no closing sale price on such exchange or system, at the closing ask
prices. If the Securities are not so listed or, if so listed and the principal
market therefor is other than on an exchange, the Evaluation shall generally be
based on the current ask price on the over-the-counter market (unless the
Evaluator deems such price inappropriate as a basis for evaluation). If current
ask prices are unavailable, the evaluation is generally determined (a) on the
basis of current ask prices for comparable securities, (b) by appraising the
value of the Securities on the ask side of the market, or (c) any combination of
the above. If such prices are in a currency other than U.S. dollars, the
Evaluation of such Security shall be converted to U.S. dollars based on current
offering side exchange rates, unless the Security is in the form of an American
Depositary Share or Receipt, in which case the Evaluations shall be based upon
the U.S. dollar prices in the market for American Depositary Shares or Receipts
(unless the Evaluator deems such prices inappropriate as a basis for
evaluation). As used herein, the closing sale price is deemed to mean the most
recent closing sale price on the relevant securities exchange immediately prior
to the Evaluation Time. For each Evaluation, the Evaluator shall also confirm
and furnish to the Trustee and the Depositor, on the basis of the information
furnished to the Evaluator by the Trustee as to the value of all Trust assets
other than Securities, the calculation of the Trust Fund Evaluation to be
computed pursuant to Section 5.01. 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.
(c) After the initial offering period and both during and after the
initial offering period, for purposes of the Trust Fund Evaluations required by
Section 5.01 in determining Redemption Value and Unit Value, Evaluation of the
Securities shall be made in the manner described in Section 4.01(b), on the
basis of current bid prices for Zero Coupon Obligations (if any), the bid side
value of the relevant currency exchange rate expressed in U.S. dollars and,
except in those cases in which the Securities are listed on a national or
foreign securities exchange or The Nasdaq Stock Market and the closing sale
prices are utilized, on the basis of the current bid prices of the Equity
Securities. In addition, the Evaluator shall reduce the Evaluation of each
Security by the amount of any liquidation costs (other than brokerage costs
incurred on any national securities exchange) and any capital gains or other
taxes which would be incurred by the Trust upon the sale of such Security, such
taxes being computed as if the Security were sold on the date of the Evaluation.
Section 4.02. Information for Unit Holders. For the purpose of permitting
Unit holders to satisfy any reporting requirements of applicable federal or
state tax law, First Trust Advisors L.P., acting in its capacity as Evaluator,
shall make available to the Trustee and the Trustee shall transmit to any Unit
holder upon request any determinations made by it pursuant to Section 4.01.
Section 4.03. Compensation for Services Provided. As compensation for
providing portfolio supervisory services in its capacity as Portfolio
Supervisor, evaluation services in its capacity as Evaluator, and for providing
bookkeeping and other administrative services to the Trust of a character
described in Section 26(a)(2)(C) of the Investment Company Act of 1940, and to
the extent that such services are in addition to, and do not duplicate, the
services to be provided hereunder by the Trustee, First Trust Advisors L.P.
shall receive, in arrears, against a statement or statements therefor submitted
to the Trustee monthly or annually an aggregate annual fee in the per Unit
amount set forth in Part II of the Trust Agreement for the Trust, calculated
based on the largest number of Units outstanding during the calendar year,
except during the initial offering period as determined in Section 4.01 of this
Indenture, in which case the fee is calculated based on the largest number of
Units outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which First Trust Advisors
L.P. provides services described herein during less than the whole of such
year). Such fee may exceed the actual cost of providing such services for the
Trust, but at no time will the total amount received for such services rendered
to unit investment trusts of which the Depositor is the sponsor in any calendar
year exceed the aggregate cost to First Trust Advisors L.P. of supplying such
services in such year. Such compensation may, from time to time, be adjusted
provided that the total adjustment upward does not, at the time of such
adjustment, exceed the percentage of the total increase after the date hereof in
consumer prices for services as measured by the United States Department of
Labor Consumer Price Index entitled "All Services Less Rent of Shelter" or
similar index, if such index should no longer be published. The consent or
concurrence of any Unit holder hereunder shall not be required for any such
adjustment or increase. Such compensation shall be paid by the Trustee, upon
receipt of an invoice therefor from First Trust Advisors L.P., which shall
constitute the representation by First Trust Advisors L.P. that the bookkeeping
and administrative services for which compensation is claimed are properly
compensable hereunder and that the aggregate cost incurred by First Trust
Advisors L.P. of providing portfolio supervisory, evaluation and bookkeeping and
administrative services hereunder was not less than the compensation claimed,
upon which representation the Trustee may conclusively rely. Such compensation
shall be charged against the Income and/or Capital Accounts in accordance with
Section 3.05.
If the cash balance in the Income and Capital Accounts shall be
insufficient to provide for amounts payable pursuant to this Section 4.03, the
Trustee shall have the power to sell (i) Securities from the current list of
Securities designated to be sold pursuant to Section 5.02 hereof, or (ii) if no
such Securities have been so designated, such Securities as the Trustee may see
fit to sell in its own discretion, and to apply the proceeds of any such sale in
payment of the amounts payable pursuant to this Section 4.03.
Any moneys payable to First Trust Advisors L.P. pursuant to this Section
4.03 shall be secured by a lien on the Trust prior to the interest of Unit
holders, but no such lien shall be prior to any lien in favor of the Trustee
under the provisions of Section 6.04 herein.
Section 4.04. Liability of the Evaluator. The Trustee, the Depositor and
the Unit holders may rely on any Evaluation furnished by First Trust Advisors
L.P., acting in its capacity as Evaluator, and shall have no responsibility for
the accuracy thereof. The determinations made by the Evaluator hereunder shall
be made in good faith upon the basis of the best information available to it.
The Evaluator shall be under no liability to the Trustee, the Depositor or the
Unit holders for errors in judgment; provided, however, that this provision
shall not protect the Evaluator against any liability to which it would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties hereunder.
Section 4.05. Resignation and Removal of Portfolio Supervisor and/or
Evaluator and/or provider of bookkeeping services described in Section 4.03;
Successor. (a) First Trust Advisors L.P. and any successor appointed as
hereafter provided, in its capacity as Evaluator and/or Portfolio Supervisor
and/or provider of bookkeeping services described in Section 4.03, may resign
and be discharged hereunder by executing an instrument of resignation in writing
and filing the same with the Depositor and the Trustee, not less than 60 days
before the date specified in such instrument when, subject to Section 4.05(e),
such resignation is to take effect. Upon receiving such notice of resignation,
the Depositor and the Trustee shall use their best efforts to appoint a
successor to act in the capacity as to which the resignation applies, such
successor to have qualifications and to be compensated at a rate of compensation
satisfactory to the Depositor and the Trustee. Such appointment shall be made by
written instrument executed by the Depositor and the Trustee, in duplicate, one
copy of which shall be delivered to the resigning party and one copy to the
successor. The Depositor or the Trustee may remove the Evaluator and/or
Portfolio Supervisor and/or party performing bookkeeping and administrative
services at any time upon 30 days' written notice and appoint a successor to act
in the capacity to which the removed applies, such successor to have
qualifications and to be compensated at a rate of compensation satisfactory to
the Depositor and the Trustee, provided, however, that so long as Nike
Securities L.P. is acting as Depositor, the Trustee shall have no power to
remove any affiliate of the Depositor who may be acting in any such capacity or
capacities. Such appointment shall be made by written instrument executed by the
Depositor and the Trustee, in duplicate, one copy of which shall be delivered to
the party removed and one copy to its successor. Notice of such resignation or
removal and appointment of a successor shall be mailed by the Trustee to each
Unit holder then of record.
(b) Any successor evaluator and/or successor portfolio supervisor and/or
provider of bookkeeping and administrative services described in Section 4.03,
as appropriate, appointed hereunder, shall execute, acknowledge and deliver to
the Depositor and the Trustee an instrument accepting such appointment
hereunder, and such successor without any further act, deed or conveyance shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder with like effect as if originally named herein and shall
be bound by all the terms and conditions of this Indenture.
(c) In case at any time the Evaluator and/or Portfolio Supervisor and/or
provider of bookkeeping and administrative services described in Section 4.03
shall resign and no successor shall have been appointed and have accepted
appointment within 30 days after notice of resignation has been received by the
Depositor and the Trustee, the resigning party may forthwith apply to a court of
competent jurisdiction for the appointment of a successor. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
appoint a successor.
(d) Any corporation into which the Evaluator and/or Portfolio Supervisor
and/or provider of bookkeeping and administrative services described in Section
4.03 hereunder may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Evaluator
and/or Portfolio Supervisor and/or provider of bookkeeping and administrative
services described in Section 4.03 hereunder shall be a party, shall be the
successor under this Indenture without the execution or filing of any paper,
instrument or further act to be done on the part of the parties hereto,
notwithstanding anything to the contrary contained herein or in any agreement
relating to such merger or consolidation by which the Evaluator and/or Portfolio
Supervisor and/or provider of bookkeeping and administrative services described
in Section 4.03 may seek to retain certain powers, rights and privileges for any
period of time following such merger or consolidation.
(e) Any resignation or removal of the Evaluator and/or Portfolio
Supervisor and/or provider of bookkeeping and administrative services described
in Section 4.03 shall become effective upon acceptance of appointment by the
successor as provided in subsection (b) hereof."
BB. Section 5.01 is hereby amended to add the following at the
conclusion of the first paragraph thereof:
"Amounts receivable by the Trust in a foreign currency shall be
reported to the Evaluator who shall convert the same to U.S. dollars based
on current exchange rates, in the same manner as provided in Section
4.01(b) or 4.01(c), as applicable, for the conversion of the valuation of
foreign Equity Securities, and the Evaluator shall report such conversion
with each Evaluation made pursuant to Section 4.01."
CC. Section 5.01 of the Standard Terms and Conditions of Trust shall be
amended as follows:
(i) The second sentence of the first paragraph of Section 5.01 shall be
amended by deleting the phrase "and (iii)" and adding the following "(iii)
amounts representing unpaid accrued organization costs, (iv) if the Prospectus
for a Trust provides that the creation and development fee, if any, accrue on a
daily basis, amounts representing unpaid accrued creation and development fees,
(v) if the Prospectus for a Trust provides that the deferred sales charge shall
accrue on a daily basis, amounts representing unpaid accrued deferred sales
charge, and (vi)"; and
(ii) The following text shall immediately precede the last sentence of the
first paragraph of Section 5.01:
"Prior to the payment to the Depositor of its reimbursable
organization costs to be made at the conclusion of the Organization
Expense Period in accordance with Section 3.01, for purposes of
determining the Trust Fund Evaluation under this Section 5.01, the
Trustee shall rely upon the amounts representing unpaid accrued
organization 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 organization costs. Upon receipt of such notice, the Trustee
shall use this revised estimated amount per Unit representing unpaid
accrued organization costs in determining the Trust Fund Evaluation
but such revision of the estimated expenses shall not effect
calculations made prior thereto and no adjustment shall be made in
respect thereof."
DD. Section 5.01 of the Standard Terms and Conditions of Trust shall be
amended by inserting the following paragraph immediately after the second
paragraph of such section:
"The Depositor is authorized to obtain from The NASDAQ Stock Market, Inc.
("NASDAQ") Mutual Fund Quotation Service ("MFQS") a unit investment trust ticker
symbol for a Trust and to contract with NASDAQ for the dissemination of the
Trust Fund Evaluation computed by the Trustee pursuant to Section 5.01 of the
Standard Terms and Conditions of Trust through the MFQS, provided, however, that
no such contract shall affect the Trustee's duties or liabilities without its
prior consent. When and as directed by the Depositor, the Trustee shall cause
the Trust Fund Evaluation to be communicated to MFQS for such purpose. The
Depositor and Trustee shall be reimbursed from the respective Trust for any cost
or expense incurred in connection with the obtaining of the ticker symbol and
the communication to MFQS and its dissemination of the Trust Fund Evaluation.
Neither the Depositor nor the Trustee shall be liable for any error, omission or
other action of NASDAQ in connection with the dissemination of the Trust Fund
Evaluation, and the Depositor and the Trustee shall be indemnified by the
respective Trust and held harmless against any loss, liability, claim or expense
resulting from any error, omission or other action of NASDAQ. In no event shall
the Trustee be liable to any person for special, indirect, or consequential
damages of any kind whatsoever resulting from or in connection with the
dissemination of the Trust Fund Evaluation through MFQS whether or not the
Trustee has been advised as to the possibility of such damages and regardless of
the form of action in which any such claim for damages may be made."
EE. Section 5.02 of the Standard Terms and Conditions of Trust is
amended by adding the following after the second paragraph of such section:
"Notwithstanding anything herein to the contrary, in the event that
any tender of Units pursuant to this Section 5.02 would result in the
disposition by the Trustee of less than a whole Security, the Trustee
shall distribute cash in lieu thereof and sell such Securities as directed
by the Sponsors as required to make such cash available.
Subject to the restrictions set forth in the Prospectus of a Trust,
Unit holders of a Trust who redeem that minimum number of Units of a Trust
set forth in Part II of the Trust Agreement may request a distribution in
kind of (i) such Unit holder's pro rata portion of each of the Securities
listed on a U.S. securities exchange ("U.S. listed securities") in such
Trust, in whole shares, and (ii) cash equal to such Unit holder's pro rata
portion of the Income and Capital Accounts as follows: (x) a pro rata
portion of the net proceeds of sale of the non U.S. listed Securities and
Securities representing any fractional shares included in such Unit
holder's pro rata share of the Securities and (y) such other cash as may
properly be included in such Unit holder's pro rata share of the sum of
the cash balances of the Income and Principal Accounts in an amount equal
to the Unit Value determined on the basis of a Trust Fund Evaluation made
in accordance with Section 5.01 determined by the Trustee on the date of
tender less amounts determined in clauses (i) and (ii)(x) of this Section.
Subject to Section 5.05 with respect to Rollover Unit holders, to the
extent possible, distributions of Securities pursuant to an in kind
redemption of Units shall be made by the Trustee through the distribution
of each of the Securities in book-entry form to the account of the Unit
holder's bank or broker-dealer at the Depository Trust Company. Any
distribution in kind will be reduced by customary transfer and
registration charges."
FF. The following Section 5.05 shall be added:
"Section 5.05. Rollover of Units. (a) If the Depositor shall offer a
subsequent series of the Trusts, (the "New Series"), the Trustee shall, at
the Depositor's sole cost and expense, include in the notice sent to Unit
holders specified in Section 8.02 a form of election whereby Unit holders,
whose redemption distribution would be in an amount sufficient to purchase
at least one Unit of the New Series, may elect to have their Unit(s)
redeemed in kind in the manner provided in Section 5.02, the Securities
included in the redemption distribution sold, and the cash proceeds
applied by the Distribution Agent to purchase Units of a New Series, all
as hereinafter provided. The Trustee shall honor properly completed
election forms returned to the Trustee, accompanied by any Certificate
evidencing Units tendered for redemption or a properly completed
redemption request with respect to uncertificated Units, by its close of
business on the Rollover Notification Date. The notice and form of
election to be sent to Unit holders 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 Distributions 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
All Units so tendered by a Unit holder (a "Rollover Unit holder")
shall be redeemed and cancelled during the Special Redemption and
Liquidation Period on such date or dates specified by Depositor. Subject
to payment by such Rollover Unit holder of any tax or other governmental
charges which may be imposed thereon, such redemption is to be made in
kind pursuant to Section 5.02 by distribution of cash and/or Securities to
the Distribution Agent on the redemption date equal to the net asset value
(determined on the basis of the Trust Fund Evaluation as of the redemption
date in accordance with Section 4.01) multiplied by the number of Units
being redeemed (herein called the "Rollover Distribution"). Any Securities
that are made part of the Rollover Distribution shall be valued for
purposes of the redemption distribution as of the redemption date.
All Securities included in a Unit holder's Rollover Distribution
shall be sold by the Distribution Agent during the Special Redemption and
Liquidation Period specified in the Prospectus pursuant to the Depositor's
direction, and the Distribution Agent shall, unless directed otherwise by
the Depositor, employ the Depositor as broker in connection with such
sales. For such brokerage services, the Depositor shall be entitled to
compensation at its customary rates, provided however, that its
compensation shall not exceed the amount authorized by applicable
securities laws and regulations. The Depositor shall direct that sales be
made in accordance with the guidelines set forth in the Prospectus under
the heading "Special Redemption, Liquidation and Investment in a New
Trust." Should the Depositor fail to provide direction, the Distribution
Agent shall sell the Securities in the manner provided in the prospectus.
The Distribution Agent shall have no responsibility for any loss or
depreciation incurred by reason of any sale made pursuant to this Section.
Upon completion of all sales of Securities included in the Rollover
Unit holder's Rollover Distribution, the Distribution Agent shall, as
agent for such Rollover Unit holder, enter into a contract with the
Depositor to purchase from the Depositor Units of a New Series (if any),
at the Depositor's public offering price for such Units on such day, and
at such reduced sales charge as shall be described in the prospectus for
such Trust. Such contract shall provide for purchase of the maximum number
of Units of a New Series whose purchase price is equal to or less than the
cash proceeds held by the Distribution Agent for the Unit holder on such
day (including therein the proceeds anticipated to be received in respect
of Securities traded on such day net of all brokerage fees, governmental
charges and any other expenses incurred in connection with such sale), to
the extent Units are available for purchase from the Depositor. In the
event a sale of Securities included in the Rollover Unit holder's
redemption distribution shall not be consummated in accordance with its
terms, the Distribution Agent shall apply the cash proceeds held for such
Unit holder as of the settlement date for the purchase of Units of a New
Series to purchase the maximum number of Units which such cash balance
will permit, and the Depositor agrees that the settlement date for Units
whose purchase was not consummated as a result of insufficient funds will
be extended until cash proceeds from the Rollover Distribution are
available in a sufficient amount to settle such purchase. If the Unit
holder's Rollover Distribution will produce insufficient cash proceeds to
purchase all of the Units of a New Series contracted for, the Depositor
agrees that the contract shall be rescinded with respect to the Units as
to which there was a cash shortfall without any liability to the Rollover
Unit holder or the Distribution Agent. Any cash balance remaining after
such purchase shall be distributed within a reasonable time to the
Rollover Unit holder by check mailed to the address of such Unit holder on
the registration books of the Trustee. Units of a New Series will be
uncertificated unless and until the Rollover Unit holder requests a
certificate. Any cash held by the Distribution Agent shall be held in a
non-interest bearing account which will be of benefit to the Distribution
Agent in accordance with normal banking procedures. Neither the Trustee
nor the Distribution Agent shall have any responsibility or liability for
loss or depreciation resulting from any reinvestment made in accordance
with this paragraph, or for any failure to make such reinvestment in the
event the Depositor does not make Units available for purchase.
(b) Notwithstanding the foregoing, the Depositor may, in its
discretion at any time, decide not to offer any new Trust Series in the
future, and if so, this Section 5.05 concerning the Rollover of Units
shall be inoperative.
(c) The Distribution Agent shall receive no fees for performing its
duties hereunder. The Distribution Agent shall, however, be entitled to
receive indemnification and reimbursement from the Trust for any and all
expenses and disbursements to the same extent as the Trustee is permitted
reimbursement hereunder."
GG. Paragraph (e) of Section 6.01 of Article VI of the Standard Terms
and Conditions of Trust is amended to read as follows:
"(e) (I) Subject to the provisions of subparagraphs (II) and (III)
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 (i) excuse the Trustee from the responsibilities
specified in subparagraph II below or (ii) limit the obligation of the
Trustee to indemnify the Trust under subparagraph III 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.
(II) 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 (I) 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 Income) the Trust's foreign securities, cash
and cash equivalents in amounts reasonably necessary to effect the Trust's
foreign securities transactions, provided that the Trustee hereby agrees
to perform all the duties assigned by rule 17f-5 as now in effect or as it
may be amended in the future, to the boards of management investment
companies. The Trustee's duties under the preceding sentence will not be
delegated.
As used in this subparagraph (II),
(1) "foreign securities" include: securities issued and sold
primarily outside the United States by a foreign government, a national of
any foreign country or a corporation or other organization incorporated or
organized under the laws of any foreign country and securities issued or
guaranteed by the government of the United States or by any state or any
political subdivision thereof or by any agency thereof or by any entity
organized under the laws of the United States or of any state thereof
which have been issued and sold primarily outside the United States.
(2) "eligible foreign custodian" means
(a) The following securities depositories and clearing
agencies which operate transnational systems for the central handling of
securities or equivalent book entries which, by appropriate exemptive
order issued by the Securities and Exchange Commission, have been
qualified as eligible foreign custodians for the Trust but only for so
long as such exemptive order continues in effect: Xxxxxx Guaranty Trust
Company of New York, Brussels, Belgium, in its capacity as operator of the
Euroclear System ("Euroclear"), and Clearstream Banking, Luxembourg.
(b) Any other entity that shall have been qualified as an
eligible foreign custodian for the foreign securities of the Trust by the
Securities and Exchange Commission by exemptive order, rule or other
appropriate action, commencing on such date as it shall have been so
qualified but only for so long as such exemptive order, rule or other
appropriate action continues in effect.
(III) The Trustee will indemnify and hold the Trust harmless
from and against any loss occurring as a result of an eligible foreign
custodian's willful misfeasance, reckless disregard, bad faith, or gross
negligence in performing custodial duties."
HH. Paragraph (g) of Section 6.01 of the Standard Terms and Conditions
of Trust is hereby amended by inserting the following after the first word
thereof:
"(i) the value of any Trust as shown by an evaluation by the Trustee
pursuant to Section 5.01 hereof shall be less than the lower of $2,000,000
or 20% of the total value of Securities deposited in such Trust during the
initial offering period, or (ii)"
II. Section 6.01(i) of the Standard Terms and Conditions of Trust
shall be deleted in its entirety and replaced with the following:
"(i) No payment to a Depositor or to any principal underwriter (as
defined in the Investment Company Act of 1940) for the Trust 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 (a) 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, and (b) such other amounts
permitted under the Investment Company Act of 1940."
JJ. The third paragraph of Section 6.02 of the Standard Terms and
Conditions of Trust shall be deleted in its entirety and replaced with the
following:
"If provided for in the Prospectus for a Trust, the Trustee shall pay, or
reimburse to the Depositor, the expenses related to the updating of the Trust's
registration statement, to the extent of legal fees, typesetting fees,
electronic filing expenses and regulatory filing fees. Such expenses shall be
paid from the Income Account, or to the extent funds are not available in such
Account, from the Capital Account, against an invoice or invoices therefor
presented to the Trustee by the Depositor. By presenting such invoice or
invoices, the Depositor shall be deemed to certify, upon which certification the
Trustee is authorized conclusively to rely, that the amounts claimed therein are
properly payable pursuant to this paragraph. The Depositor shall provide the
Trustee, from time to time as requested, an estimate of the amount of such
expenses, which the Trustee shall use for the purpose of estimating the accrual
of Trust expenses. The amount paid by the Trust pursuant to this paragraph in
each year shall be separately identified in the annual statement provided to
Unit holders. The Depositor shall assure that the Prospectus for the Trust
contains such disclosure as shall be necessary to permit payment by the Trust of
the expenses contemplated by this paragraph under applicable laws and
regulations.
The provisions of this paragraph shall not limit the authority of the
Trustee to pay, or reimburse to the Depositor or others, such other or
additional expenses as may be determined to be payable from the Trust as
provided in Section 6.02 of the Standard Terms and Conditions of Trust."
KK. The first sentence of the second paragraph of Section 6.04 shall be
amended to include the phrase "license fees, if any, expenses incurred in
printing and mailing quarterly, semi-annual or annual communications to Unit
holders if the Prospectus so provides," immediately after the reference to legal
and auditing expenses.
LL. The third sentence of paragraph (a) of Section 6.05 of the Standard
Terms and Conditions of Trust shall be replaced in its entirety by the
following:
"The Depositor may remove the Trustee at any time with or without cause
and appoint a successor Trustee by written instrument or instruments delivered
not less than sixty days prior to the effective date of such removal and
appointment to the Trustee so removed and to the successor Trustee."
MM. Section 8.02 of the Standard Terms and Conditions of Trust shall be
amended as follows:
(i) The fourth sentence of the second paragraph shall be deleted and
replaced with the following:
"The Trustee will honor duly executed requests for in-kind
distributions received (accompanied by the electing Unit holder's
Certificate, if issued) by the close of business ten business days prior
to the Mandatory Termination Date."
(ii) The first sentence of the fourth paragraph shall be deleted and
replaced with the following:
"Commencing no earlier than the business day following that date on
which Unit holders must submit to the Trustee notice of their request to
receive an in-kind distribution of Securities at termination, the Trustee
will liquidate the Securities not segregated for in-kind distributions
during such period and in such daily amounts as the Depositor shall
direct."
NN. Section 1.01(18) of the Standard Terms and Conditions of
Trust shall be amended to read as follows:
"(18) "Securities" shall mean equity or trust preferred
securities of corporations or other entities deposited in the Trust Fund
as specified in the Trust Agreement thereof, which Securities are listed
in Schedule A to the Trust Agreement or are Securities deposited in the
Trust Fund pursuant to Section 2.01(b) hereof, and Replacement Securities
acquired pursuant to Section 3.12 hereof, as may from time to time be
construed to be held as part of the Trust Fund."
IN WITNESS WHEREOF, Nike Securities L.P., JPMorgan Chase Bank and First
Trust Advisors L.P. have each caused this Trust Agreement to be executed and the
respective corporate seal to be hereto affixed and attested (if applicable) by
authorized officers; all as of the day, month and year first above written.
NIKE SECURITIES L.P.,
Depositor
By Xxxxxx X. Xxxxxxxxxx
Senior Vice President
JPMORGAN CHASE BANK, Trustee
By Xxxxxxx Xxxxxxx
Vice President
[SEAL]
ATTEST:
Xxxx X. Xxxxxx
Assistant Vice President
FIRST TRUST ADVISORS L.P.,
Evaluator
By Xxxxxx X. Xxxxxxxxxx
Senior Vice President
FIRST TRUST ADVISORS L.P.,
Portfolio Supervisor
By Xxxxxx X. Xxxxxxxxxx
Senior Vice President
SCHEDULE A TO TRUST AGREEMENT
Securities Initially Deposited
FT 620
(Note: Incorporated herein and made a part hereof for the Trust is the
"Schedule of Investments" for the Trust as set forth in the Prospectus.)
