Exhibit 1.1(b)
Nuveen Unit Trusts, Series 68
Trust Indenture and Agreement
Dated: October 26, 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 are set
forth in full and such provisions as are incorporated by reference constitute a
single instrument. All references herein to Articles and Sections are to
Articles and Sections of the Standard Terms and Conditions of Trust.
Witnesseth That:
In consideration of the 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 1/(the
number of Units) set forth under the caption "Statement of Condition--Interest
of Unitholders: Units of fractional undivided interest outstanding" in the
Prospectus.
(c) The number of Units created of the Trusts are as set forth under the
caption "Statement of Condition--Interest of Unitholders: Units of fractional
undivided interest outstanding" in the Prospectus for the Trusts.
(d) Each Trust elects to be treated and to qualify as a Regulated
Investment Company as defined in the Internal Revenue Code, and the
Trustee is hereby directed to make such elections, including any
appropriate election to be taxed as a corporation, as shall be
necessary to effect such qualification.
(e) 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 a 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 a Trust subsequent to the deposit referred to in Section 2.01. At the
earlier of six months after the Initial Date of Deposit or the conclusion
of the primary offering period (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 Trusts 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
Trusts exceed the estimated per Unit amount of organization costs set forth
in the prospectus for the Trusts multiplied by the number of Units of the
Trust outstanding at the earlier of six months after the Initial Date of
Deposit or the end of the initial offering period; nor shall the Depositor
be entitled to or request reimbursement for expenses of organizing the
Trusts incurred after the earlier of six months after the Initial Date of
Deposit or the end of the initial offering 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. The Securities sold or distributed to the Depositor
to reimburse the Depositor pursuant to this Section shall be sold or
distributed by the Trustee, in accordance with the instructions of the
Depositor or its designee. The reimbursement provided for in this section
shall be for the account of the Unitholders of record at the earlier of six
months after the Initial Date of Deposit or 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 Trusts for all purposes hereunder. The
Depositor shall deliver to the Trustee any cash identified in the Statement
of Condition of the Trusts 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 earlier of six months after the Initial Date of
Deposit or 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 Unitholder redeems Units prior to the
earlier of six months after the Initial Date of Deposit or the conclusion
of the primary offering period, the Trustee shall pay to the Unitholder, in
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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 Trusts 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 a 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 a 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 a 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.
(f) Article I of the Standard Terms and Conditions of Trust is hereby
amended to replace the definitions of "Capital Distribution Date," "Contract
Securities," "Initial Date of Deposit," "Mandatory Termination Date," "Record
Date," "Securities" and "Unit" and to add the following definitions:
Capital Distribution Date
The meaning assigned to it in the Prospectus for a Trust.
Contract Securities
The Securities which are to be acquired by any Trust Fund pursuant to
a contract or contracts for the purchase of such securities which have been
assigned to the Trustee along with the amounts required for their purchase
which have been delivered to the Trustee.
Evaluator
The party designated in the Prospectus for a Trust or any party
appointed by the Sponsor.
Initial Date of Deposit
The meaning assigned to it in the Prospectus for each respective Trust
Fund.
Mandatory Termination Date
The meaning assigned to it in the Prospectus for a Trust.
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Prospectus
The prospectus relating to a Trust in the form first used to confirm
sales of Units.
Record Date
As applicable, the meaning assigned in "Income Record Date" and/or
"Capital Record Date" in the Prospectus for each respective Trust Fund.
Securities
The securities, including Contract Securities listed in Schedule A to
the Trust Agreement or other securities that may be deposited in the Trust
Fund and any obligations received in exchange or substitution for such
securities, as may from time to time continue to be held as a part of any
Trust Fund.
Unit
The fractional undivided interest in and ownership of an individual
Trust Fund equal initially to 1/(the number of Units of fractional
undivided interest outstanding) provided in the Statement of Condition in
the Prospectus for the Trust Fund, the denominator of which fraction shall
be (1) increased by the number of any additional Units issued pursuant to
Section 2.03 hereof and (2) decreased by the number of any such Units
redeemed as provided in Section 5.02. Whenever reference is made herein to
the "interest" of a Unitholder in the Trust Fund or in the Income or
Capital Accounts, it shall mean such fractional undivided interest
represented by the number of Units, whether or not evidenced by a
Certificate or Certificates, held of record by such Unitholder in such
Trust Fund.
In addition, the definitions of "Rollover Distribution," "Rollover Notification
Date," "Rollover Unitholder" and "Special Redemption and Liquidation Period"
shall be deleted.
(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
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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 or foreign securities exchange or The NASDAQ Stock
Market, Inc., the evaluation will be based on the closing sale price on the
exchange or system where the Securities are principally traded (if a
Security is listed on the New York Stock Exchange, the closing sale price
on that exchange shall apply) or, if there is no closing 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. 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 bid 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 valuation). 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 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 or foreign exchange
or The NASDAQ Stock Market, Inc., or, with respect to a Security so listed
but in the unusual circumstance in which the Evaluator deems the closing
sale price on the relevant exchange to be inappropriate as a basis for
valuation, upon the Evaluator's request, the Depositor shall,
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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. The Depositor shall also
designate one or more banks (which may include the Trustee) or other source
of information from which the Evaluator shall take foreign exchange rate
quotations. The Evaluator shall have no liability for any errors in the
information received from any source designated by the Depositor. 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 or foreign securities exchange or
The NASDAQ Stock Market, Inc., 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 and on current offering side exchange rates.
(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 a 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 organization costs, and
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(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."
Prior to the payment to the Depositor of its reimbursable organization
costs to be made at the earlier of six months after the Initial Date of
Deposit or the conclusion of the primary offering period in accordance with
Section 10.02, 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.
Amounts receivable by the Trust(s) 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, for
the conversion of the valuation of foreign Securities, and the Evaluator
shall report such conversion with each Evaluation made pursuant to Section
4.01.
(j) Notwithstanding anything to the contrary contained in Sections 3.04,
3.11, 3.13, 4.03 and 8.05 or otherwise herein, 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 accrue daily and be based on the
number of Units outstanding on the most recent prior Record Date specified in
the Prospectus. After the primary offering period has terminated, the fees,
where applicable, shall accrue daily and be based on the number of Units
outstanding on the most recent prior Record Date specified in the Prospectus or
the number of units outstanding at the end of the initial offering period, as
appropriate.
(k) Paragraph (e) of Section 8.01 of Article VIII 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 3.04 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 interest) 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 Cedel Bank S.A. ("CEDEL").
(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."
(l) 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.
(m) Section 8.01 shall be amended to add the following paragraph (m):
(m) The Chase Manhattan Bank, or an affiliate, may, when instructed by the
Sponsor pursuant to Section 3.14, enter into foreign exchange transactions with
the Trust, with the same rights and powers as if The Chase Manhattan Bank were
not the Trustee hereunder.
(n) 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 in the manner
provided in the Trust Indenture and Agreement for the Trust, or if no
provision is made therein, on the basis of the largest number of Units
outstanding during the period with respect to which such compensation is
paid.
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(o) All references to the "NASDAQ National Market System" herein and in
the Standard Terms and Conditions of Trust shall be replaced with "The NASDAQ
Stock Market, Inc."
(p) Subsection (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 for a
Trust, the Depositor is hereby authorized, in its discretion, to assign,
convey to and deposit with the Trustee (i) additional Securities for such
Trust, duly endorsed in blank or accompanied by all necessary instruments
of assignment and transfer in proper form, or (ii) Contract Securities
relating to such additional Securities, accompanied by cash and/or
Letter(s) of Credit as specified in paragraph (c) of this Section 2.01. In
lieu of additional Securities or Contract Securities, the Depositor may
deposit with the Trustee cash (or a Letter of Credit) in an amount equal to
the valuation made in accordance with Section 4.01 for the date of such
deposit of the additional Securities not delivered or represented by
Contract Securities and the Depositor or its designated agent shall, on
behalf of each Trust, enter into contracts to purchase such additional
Securities and shall provide the Trustee such information as the Trustee
may require in order to settle such transactions and take delivery of such
additional Securities which the Trustee is hereby directed to do. Deposits
of additional Securities shall consist of Securities included in the Nasdaq
100 Index as determined by the Depositor or its designee. Any brokerage
fees related to the purchase of Securities deposited in the Trust Fund
after the Initial Date of Deposit shall be an expense of such Trust Fund.
The Depositor shall deliver any additional Securities which were not
delivered concurrently with the deposit of additional Securities and which
were represented by Contract Obligations within 10 calendar days after such
deposit of additional Securities (the "Additional Securities Delivery
Period"). If a contract to buy such Securities between the Depositor and
seller is terminated by the seller thereof for any reason beyond the
control of the Depositor or if for any other reason such Securities are not
delivered to a Trust by the end of the Additional Securities Delivery
Period for such deposit, the Trustee shall immediately draw on the Letter
of Credit, if any, in amounts sufficient to settle such contract, apply the
monies in accordance with Section 2.01(d), and the Depositor shall
forthwith take the remedial action specified in Section 3.10. If the
Depositor does not take the action specified in Section 3.10 within 10
calendar days of the end of the Additional Securities Delivery Period, the
Trustee shall forthwith take the action specified in Section 3.10. If the
Depositor has acted as broker in connection with any purchase of Securities
made on behalf of a Trust, which it is hereby authorized to do, it shall be
entitled to reimbursement in accordance with applicable law and
regulations. The Trustee shall have no liability for any loss or
depreciation resulting from any acquisition of Securities pursuant to this
Section (other than to confirm the identity and amount of Securities
delivered to it pursuant to contracts deposited or entered into by the
Depositor) and shall have no responsibility for the composition of a Trust
portfolio.
(2) Additional Securities (or Contract Securities 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 accordance with the instructions of the Depositor or its
designee.
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(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 purchase on
behalf of the Trust or designate an agent to purchase on behalf of each
Trust in respect of cash deposited therein for such purpose, 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 and enter into
contracts, or designate an agent to enter into contracts, on behalf of a
Trust to acquire such Securities of such issue when they become available.
(4) 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 in respect of a record date for a payment on a
Security which has occurred or will occur before the Trusts will be the
holder of record of a Security, reduced by (i) 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 to a Record Date occurring prior to the deposit and (ii) unpaid
fees and expenses allocable to the period 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.
(q) 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 contract."
(r) The second paragraph of Section 3.04(b) shall have the following added
to the end of the paragraph:
Notwithstanding anything to the contrary contained in this paragraph, the
Depositor or its designee may, but is not obligated to, direct the
investment of any amounts held in the Capital Account that have not
previously been used to pay for the redemption of Units tendered to a Trust
Fund, into any Securities included in the Nasdaq 100 Index.
(s) The following shall be added as subsection (f) to Section 3.04:
(f) Notwithstanding the foregoing, if a Trust has elected to be taxed
as a "regulated investment company" as defined in the United States
Internal Revenue Code of 1986, as amended, the Trustee shall make such
additional distributions to Unitholders as shall be determined by the
Depositor or such agent as the Depositor shall designate to be necessary or
desirable to maintain the status of the Trust as a Regulated Investment
Company or to avoid imposition of any income or excise taxes on
undistributed income of the Trusts. The Trustee shall be authorized to rely
conclusively upon the direction, and shall have no duty to make any
additional distributions from the Trusts in the absence of such direction.
The Trustee shall have no liability for any tax or other liability incurred
by reason of action or inaction resulting from such direction. The fees of
such agent designated by the Depositor shall be an expense of the Trusts
reimbursable to the Trustee in accordance with section 8.05.
(t) The following replaces the second paragraph of Section 3.08:
In the event that an offer by the issuer of any of the Securities of
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 Nasdaq 100 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, as the
Depositor or its designee shall direct, be (1) reinvested into any
Securities included in the Nasdaq 100 Index or (2) distributed to
Unitholders on the next Capital Distribution Date in the manner set forth
in this Agreement 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 a 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.
(u) Section 3.06 shall be amended to read, in its entirety, as follows:
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Section 3.06. Sale of Securities and Reinvestment. The Depositor by
written notice may direct the Trustee to sell Securities at such price and
time and in such manner as shall be deemed appropriate by the Depositor if
the Depositor shall have determined that any one or more of the following
conditions exist:
(a) that there has been a default in the payment of principal of or
interest on any outstanding debt obligations of the issuer of such
Securities;
(b) that the price of any such Security has declined to such an
extent, as a result of adverse issuer credit factors, so that in the
opinion of the Depositor the retention of such Securities would be
detrimental to the interest of the Unitholders;
(c) if a Trust has elected to be taxed as a "regulated investment
company" as defined in the United States Internal Revenue Code of 1986, as
amended, that such sale is necessary or advisable (i) to maintain the
qualification of the Trust as a regulated investment company or (ii) to
provide funds to make any distribution for a taxable year in order to avoid
imposition of any income or excise taxes on undistributed income in the
Trust;
(d) that the Security has been removed from the applicable index; or
(e) Depositor or its designee determines that such sale is
appropriate.
Upon receipt of such direction from the Depositor, the Trustee shall
proceed to sell the specified Securities in such manner as the Depositor or
its designee shall direct. The Depositor or its designee may enter into
contracts on behalf of the Trusts to reinvest the proceeds of the sale of
any Security sold pursuant to this section or pursuant to Section 5.02 into
any Security included in the Nasdaq 100 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 Trusts to reinvest such proceeds into round
lots of a Security. Contracts for sale or purchase of Securities shall be
made by the Depositor on behalf of the Trusts or by such agent as the
Depositor shall designate. The Depositor or its designee shall provide the
Trustee such information as the Trustee may require in order to settle the
transactions. The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any sale or purchase made
pursuant to any such direction or by reason of the failure of the Depositor
to give any such direction, and in the absence of such direction the
Trustee shall have no duty to sell or purchase any Securities under this
Section 3.06 and shall have no responsibility for the composition of each
Trust portfolio. The Depositor shall not be liable for errors of judgment
in directing or failing to direct the Trustee pursuant to this Section
3.06. This provision, however, shall not protect the Depositor against
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any liability for 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 their obligations and duties
hereunder.
The Depositor or its designated agent shall make such reviews of each
Trust portfolio as shall be necessary to maintain qualification of the
Trust as a Regulated Investment Company and the Depositor shall be
authorized to rely conclusively upon such reviews in directing sales
pursuant to paragraph (c) of this section.
(v) Paragraphs (a) and (b) of Section 3.10 shall be amended as follows:
(a) The New Securities shall be a component of the Nasdaq 100 Index.
(b) The Depositor shall furnish a notice to the Trustee (which may
be part of the Failed Contract Notice) in respect of the New Security
purchased or to be purchased that shall (i) identify the New Securities,
(ii) state that the contract to purchase, if any, entered into by the
Depositor is satisfactory in form and substance and (iii) state that the
foregoing conditions of clause (a) have been satisfied with respect to the
New Securities.
Paragraph (c) of Section 3.10 shall be deleted.
(w) Article III of the Standard Terms and Conditions of Trust is hereby
amended to add the following section:
Section 3.14. License Fees.
For the Nuveen Nasdaq 100 Index Portfolio ("Nasdaq 100 Trust") and
pursuant to a Licensing Agreement between The Nasdaq Stock Market, Inc.
("Nasdaq") and the Depositor (the "Nasdaq"), as consideration for the
licenses granted by Nasdaq for the right to use its trademarks and trade
names or service marks, the Nasdaq 100 Trust will pay the fees provided for
in the Nasdaq Agreement to Nasdaq or the Depositor to reimburse the
Depositor for payment of the expenses.
If the Nasdaq Agreement provides for an annual license fee computed in
whole or in part by reference to the quarter-end asset balances of the
Nasdaq 100 Trust, for purposes of calculating the accrual of estimated
expenses, such annual fee shall accrue at a daily rate and the Trustee is
authorized to compute an annual licensing fee payment (i) until the
quarter-end in which the Depositor has informed the Trustee that there will
be no further deposits of additional Securities, by reference to an
estimate of the quarter-end asset balances which the Depositor shall
provide the Trustee, and (ii) thereafter by reference to the previous
quarter-end asset balance of the applicable Nasdaq 100 Trust. The Trustee
shall adjust the net asset value (Trust Fund Evaluation) as of the dates
specified in the preceding sentence to account for any variation between
accrual of estimated license fees and the license fees payable pursuant to
the Nasdaq Agreement, but such adjustment shall not affect calculations
made prior thereto and no adjustment shall be made in respect thereof.
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(x) The following is added to the end of the first paragraph of Section
5.02.
Sales of foreign securities shall be made in such manner and at such price
as the Depositor, or its delegate, shall direct, and the Trustee shall not
be liable or responsible for depreciation or loss incurred by reason of any
sale made pursuant to such direction.
If Securities in the Trusts are sold for the payment of the Redemption
Price and there are excess proceeds remaining after meeting redemption
requests, the Depositor or its designee may, but is not obligated to,
direct the investment of such excess proceeds into any Securities included
in the Nasdaq 100 Index.
(y) Section 5.03 shall be deleted.
(z) The following paragraph shall be added to Section 9.01:
Notwithstanding anything to the contrary herein, if at any time the
Nasdaq 100 Index shall no longer be compiled, maintained or made available,
the Depositor may (a) direct that the Trusts created hereby continue to be
operated hereunder utilizing the components of the Nasdaq 100 Index as
existed on the last date on which the Nasdaq 100 Index components were
available to a Trust or (b) direct the Trustee to terminate this Agreement
and the Trusts created hereby and liquidate the Trusts in such manner as
the Depositor shall direct.
(aa) The first paragraph of Section 10.01 shall be replaced with the
following paragraph:
Section 10.01. Amendment and Waiver. This Agreement may be amended from
time to time by the Depositor and the Trustee without the consent of any of
the Unitholders (a) to cure any ambiguity or to correct or supplement any
provisions contained herein which may be defective or inconsistent with any
other provision contained herein; (b) to change any provision hereof as may
be required by the Securities and Exchange Commission or any successor
governmental agency exercising similar authority; (c) to make such
amendments as may be necessary for each Trust to continue to qualify as a
regulated investment company for federal income tax purposes; or (d) to
make such other provisions in regard to matters or questions arising
hereunder as shall not adversely affect the interest of the Unitholders (as
determined in good faith by the Depositor and the Trustee). This Agreement
may also be amended from time to time by the Depositor and the Trustee (or
the performance of any of the provisions of this Agreement may be waived)
with the consent of holders of Units representing 66-2/3% of the Units at
the time outstanding under the Trust Agreement of the individual Trust Fund
or Trust Funds affected for the purpose of adding any provisions of this
Agreement or of materially modifying in any manner the rights of the
holders of Units of such Trust Fund or Trust Funds; provided, however, that
in no event may any amendment be made which would (a) alter the rights to
the Unitholders as against each other, (b) provide the Trustee with the
power to engage in business or investment activities other than as
specifically provided in this Agreement or (c) adversely affect the
characterization of the Trust as a regulated investment company for federal
income tax purposes; provided, further, that the consent of 100% of the
Unitholders of any individual Trust Fund is required to amend
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this Agreement (a) to reduce the aforesaid percentage of Units the holders
of which are required to consent to certain amendments and (b) to reduce
the interest in such Trust Fund represented by any Units of such Trust
Fund.
(bb) Article III of the Standard Terms and Conditions of Trust is hereby
amended by adding the following new Section 3.14:
Section 3.14. 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.
(cc) 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.
(dd) Section 8.01 shall be amended to add the following as paragraph (1):
(1) The Trustee except by reason of its own negligence or willful
misconduct shall not be liable for any action taken or suffered to be taken by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
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In Witness Whereof, Xxxx Nuveen & Co. Incorporated, has caused this
Trust Indenture and Agreement for Nuveen Unit Trusts, Series 68 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 68
(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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