THE FIRST TRUST SPECIAL SITUATIONS TRUST, SERIES 133
TRUST AGREEMENT
Dated: January 9, 1996
This Trust Agreement among Nike Securities L.P., as
Depositor, The Chase Manhattan Bank (National Association),
as Trustee, First Trust Advisors L.P., as Evaluator, and
First Trust Advisors L.P., as 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 18 and subsequent Series, Effective
October 15, 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 tough 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 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 is 150,000 Units.
(2) The initial fractional undivided
interest in and ownership of the Trust represented by
each Unit thereof shall be 1/150,000.
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 is as follows on the
Initial Date of Deposit:
1.63% ATS Medical, Inc., 1.59% Angeion
Corporation, 1.62% BI, Inc., 1.66% Xxxxx
Company, 1.59% Check Technology Corporation,
1.59% Ciprico, Inc., 1.60% Consolidated Papers,
Inc., 1.60% Xxxxxx Xxxxxx Corporation, 1.59%
Destron Fearing Corporation, 1.59% Diametrics
Medical, Inc., 1.60% Digi International, Inc.,
1.60% Fingerhut Companies, Inc., 1.59% First
Bank System, Inc., 1.63% Fourth Shift
Corporation, 1.64% Xxxxxx (X.X.) Company, 1.60%
General Xxxxx, Inc., 1.60% Grand Casino, Inc.,
1.61% Health Risk Management, Inc., 1.58% Home
Depot, Inc., 1.59% IVI Publishing, Inc., 1.63%
INCSTAR Corporation, 1.65% Lifecore Biomedical,
Inc., 1.61% Minntech Corporation, 1.66% Mizar,
Inc., 1.64% National Computer Systems, 1.59%
Netstar, Inc., 1.62% Orphan Medical, Inc., 1.59%
Possis Medical, Inc., 1.59% Racotek, Inc., 1.59%
Snap On, Inc., 1.67% Spectranetics Corporation.
D. The Record Dates shall be as set forth in the
Prospectus under "Summary of Essential Information."
E. The Distribution Dates shall be as set forth
in the Prospectus under "Summary of Essential
Information."
F. The Mandatory Termination Date for the Trust
shall be November 15, 2008.
G. The Treasury Obligations Maturity Date for
the Trust shall be November 15, 2008.
H. The Evaluator's compensation as referred to
in Section 4.03 of the Standard Terms and Conditions of
Trust shall be an annual fee of $.00030 per Unit
calculated on the largest number of Units outstanding
during each period in respect of which a payment is
made pursuant to Section 3.05, payable on a
Distribution Date.
I. The Trustee's Compensation Rate pursuant to
Section 6.04 of the Standard Terms and Conditions of
Trust shall be an annual fee of $.00101 per Unit,
calculated on the largest number of Units outstanding
during each period in respect of which a payment is
made pursuant to Section 3.05. However, in no event,
except as may be 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.
J. The Initial Date of Deposit for the Trust is
January 9, 1996.
K. The minimum amount of Equity Securities to be
sold by the Trustee pursuant to Section 5.02 of the
Indenture for the redemption of Units shall be 100
shares.
PART III
A. Section 1.01(2) shall be amended to read as
follows:
"(2) "Trustee" shall mean The Chase Manhattan Bank
(National Association), 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 The Chase Manhattan Bank (National
Association).
B. The term "Capital Account" as set forth in the
Prospectus shall be deemed to refer to the "Principal
Account."
C. Paragraph (b) of Section 2.01 of the Standard
Terms and Conditions of Trust is amended by substituting the
following sentences for the third and fourth sentences of
such paragraph:
"The Trustee shall not accept any deposit pursuant
to this Section 2.01(b) unless the Depositor and
Trustee have each determined that the maturity value of
the Zero Coupon Obligations included in the deposit,
divided by the number of Units created by reason of the
deposit, shall equal $1.00; written certifications of
such determinations shall be executed by the Depositor
and Trustee and preserved in the Trust records with a
copy of each such written certification to Standard &
Poor's Corporation so long as Units of the Trust are
rated by them. The Depositor shall, at its expense,
cause independent public accountants to review the
Trust's holdings (i) at such time as the Depositor
determines no further deposits shall be made pursuant
to this paragraph and (ii), if earlier, as of the 90th
day following the initial deposit, for the purpose of
certifying whether the face value of the Zero Coupon
Obligations then held by the Trust divided by the Units
then outstanding equals $1.00. A copy of each written
report from the independent public accountants based on
their review will be provided to Standard & Poor's
Corporation so long as Units of the Trust are rated by
them."
D. The last sentence of the first paragraph of
Section 5.02 of the Standard Terms and Conditions of Trust
is amended by substituting "4:00 p.m. Eastern time" for
"12:00 p.m in the City of New York."
E. The second paragraph of Section 5.02 of the
Standard Terms and Conditions of Trust is amended by
substituting the following sentence for the third sentence
of the second paragraph of such Section:
"If such available funds shall be insufficient,
the Trustee shall sell such Securities as have been
designated on the current list for such purpose by the
Portfolio Supervisor, as hereinafter in this Section
5.02 provided, in amounts as the Trustee in its
discretion shall deem advisable or necessary in order
to fund the Principal Account for purposes of such
redemption, provided however, that Zero Coupon
Obligations may not be sold unless the Depositor and
Trustee, which may rely on the advice of the Portfolio
Supervisor, have determined that the face value of the
Zero Coupon Obligations remaining after such proposed
sale, divided by the number of Units outstanding after
the tendered Units are redeemed, shall equal or exceed
$1.00; a written certification as to such
determination shall be executed by the Depositor and
Trustee and preserved in the Trust records with a copy
of each such written certification to Standard & Poor's
Corporation so long as Units of the Trust are rated by
them. Within 90 days of the fiscal year end of the
Trust, the Depositor shall obtain, at its expense, an
annual written certification from the independent
public accountants as to such determination which will
also be provided to Standard & Poor's Corporation so
long as Units of the Trust are rated by them."
F. The third sentence of the seventh paragraph of
Section 5.02 of the Standard Terms and Conditions of Trust
is amended by deleting "a certification from the independent
public accountants to the effect described in the second
paragraph of this Section 5.02" and in its place inserting
"a certification from the Depositor and Trustee to the
effect described in the second paragraph of this Section
5.02."
G. Paragraph (a) of subsection II of Section 3.05 of
the Standard Terms and Conditions of Trust is hereby amended
to substitute the following sentence for the first sentence
of such paragraph:
"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 Principal 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 with respect to
distributions other than the distribution occurring in
the month of December of each year, the Trustee shall
not be required to make a distribution from the
Principal Account unless the amount available for
distribution shall equal $1.00 per 1000 Units in the
case of Units initially offered at approximately $1.00
per Unit, or, $1.00 per 100 Units in the case of Units
initially offered at approximately $10.00 per Unit."
I. Section 3.12 of the Standard Terms and Conditions
of Trust is hereby deleted in its entirety and replaced with
the following language:
"Section 3.12. 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 Zero
Coupon Obligation, if any, (including but not limited
to the making of any demand, direction, request, giving
of any notice, consent or waiver or the voting with
respect to any amendment or supplement to any
indenture, resolution, agreement or other instrument
under or pursuant to which the Zero Coupon Obligations,
if any, have been issued) the Trustee shall promptly
notify the Depositor and shall thereupon take such
action or refrain from taking any action as the
Depositor shall in writing direct; provided, however,
that if the Depositor shall not within five Business
Days of the giving of such notice to the Depositor
direct the Trustee to take or refrain from taking any
action, the Trustee shall take such action as it, in
its sole discretion, shall deem advisable.
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 Equity 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 Equity Securities are voted as closely as
possible in the same manner and the same general
proportion as are the Equity Securities held by owners
other than the 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 exchange or substitution be
effected notwithstanding such rejection or without an
initial offer, any Securities, cash and/or property
received in exchange 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 Principal
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 3.12 other
than failure to notify the Depositor.
Whenever new securities or property is received
and retained by the Trust pursuant to this Section
3.12, the Trustee shall, within 5 days thereafter, mail
to all Unit holders of the Trust notices of such
acquisition unless legal counsel for the Trust
determines that such notice is not required by The
Investment Company Act of 1940, as amended."
J. 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."
K. Article III of the Standard Terms and Conditions
of Trust is hereby amended by inserting the following
paragraphs which shall be entitled Section 3.16.:
"Section 3.16. Bookkeeping and Administrative
Expenses. As compensation for providing bookkeeping
and other administrative services of a character
described in Section 26(a)(2)(C) of the Investment
Company Act of 1940 to the extent such services are in
addition to, and do not duplicate, the services to be
provided hereunder by the Trustee or the Portfolio
Supervisor, the Depositor shall receive against a
statement or statements therefor submitted to the
Trustee monthly or annually an aggregate annual fee in
an amount which shall not exceed that dollar amount set
forth in the Prospectus times the number of Units
outstanding as of January 1 of such year except for a
year or years in which an initial offering period as
determined by Section 4.01 of this Indenture occurs, in
which case the fee for a month is based on the number
of Units outstanding at the end of such month (such
annual fee to be pro rated for any calendar year in
which the Depositor provides service during less than
the whole of such year), but in no event shall such
compensation when combined with all compensation
received from other unit investment trusts for which
the Depositor hereunder is acting as Depositor for
providing such bookkeeping and administrative services
in any calendar year exceed the aggregate cost to the
Depositor providing services to such unit investment
trusts. 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 invoice therefor
from the Depositor, upon which, as to the cost incurred
by the Depositor of providing services hereunder the
Trustee may rely, and shall be charged against the
Income and Principal Accounts on or before the
Distribution Date following the Monthly Record Date on
which such period terminates. The Trustee shall have
no liability to any Certificateholder or other person
for any payment made in good faith pursuant to this
Section.
If the cash balance in the Income and Principal
Accounts shall be insufficient to provide for amounts
payable pursuant to this Section 3.16, 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 3.16,
provided, however, that Zero Coupon Obligations may not
be sold to pay for amounts payable pursuant to this
Section 3.16.
Any moneys payable to the Depositor pursuant to
this Section 3.16 shall be secured by a prior lien on
the Trust Fund except that no such lien shall be prior
to any lien in favor of the Trustee under the
provisions of Section 6.04 herein.
L. 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."
M. The first sentence of Section 3.14. shall be
amended to read as follows:
"Subject to Section 3.15 hereof, as compensation
for providing supervisory portfolio services under this
Indenture, the Portfolio Supervisor shall receive, in
arrears, against a statement or statements therefor
submitted to the Trustee monthly or annually an
aggregate annual fee in an amount which shall not
exceed the amount set forth under "Summary of Essential
Information-Supervisory Fee" in the Prospectus times
the number of Units outstanding as of January 1 of such
year except for a Trust during the year or years in
which an initial offering period as determined in
Section 4.01 of this Indenture occurs, in which case
the fee for a month is based on the number of Units
outstanding at the end of such month (such annual fee
to be pro rated for any calendar year in which the
Portfolio Supervisor provides services during less than
the whole of such year), but in no event shall such
compensation when combined with all compensation
received from other series of the Trust for providing
such supervisory services in any calendar year exceed
the aggregate cost to the Portfolio Supervisor for
providing such services.
N. 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. The expenses
incurred in establishing a Trust, including the cost of
the preparation and typesetting of the registration
statement, prospectuses (including preliminary
prospectuses), the indenture and other documents
relating to the Trust, printing of Certificates,
Securities and Exchange Commission and state blue sky
registration fees, the costs of the initial valuation
of the portfolio and audit of the Trust, the initial
fees and expenses of the Trustee, and legal and other
out-of-pocket expenses related thereto, but not
including the expenses incurred in the printing of
preliminary prospectuses and prospectuses, expenses
incurred in the preparation and printing of brochures
and other advertising materials and any other selling
expenses, to the extent not borne by the Depositor,
shall be borne by the Trust. To the extent the funds
in the Income and Principal Accounts of the Trust shall
be insufficient to pay the expenses borne by the Trust
specified in this Section 3.01, the Trustee shall
advance out of its own funds and cause to be deposited
and credited to the Income Account such amount as may
be required to permit payment of such expenses. The
Trustee shall be reimbursed for such advance on each
Record Date from funds on hand in the Income Account
or, to the extent funds are not available in such
Account, from the Principal Account, in the amount
deemed to have accrued as of such Record Date as
provided in the following sentence (less prior payments
on account of such advances, if any), and the
provisions of Section 6.04 with respect to the
reimbursement of disbursements for Trust expenses,
including, without limitation, the lien in favor of the
Trustee therefor and the authority to sell Securities
as needed to fund such reimbursement, shall apply to
the payment of expenses and the amounts advanced
pursuant to this Section. For the purposes of the
preceding sentence and the addition provided in clause
(4) of the first sentence of Section 5.01, the expenses
borne by the Trust pursuant to this Section shall be
deemed to have been paid on the date of the Trust
Agreement and to accrue at a daily rate over the time
period specified for their amortization provided in the
Prospectus; provided, however, that nothing herein
shall be deemed to prevent, and the Trustee shall be
entitled to, full reimbursement for any advances made
pursuant to this Section no later than the termination
of the Trust. For purposes of calculating the accrual
of organizational expenses under this Section 3.01, the
Trustee shall rely on the written estimates of such
expenses provided by the Depositor pursuant to Section
5.01."
O. 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 adding the following
at the conclusion thereof: ", plus (4) amounts
representing organizational expenses paid from the
Trust less amounts representing accrued organizational
expenses of the Trust, plus (5) all other assets of the
Trust"
(ii) The following shall be added at the end of
the first paragraph of Section 5.01:
Until the Depositor has informed the Trustee
that there will be no further deposits of
Additional Securities pursuant to section 2.01(b),
the Depositor shall provide the Trustee with
written estimates of (i) the total organizational
expenses to be borne by the Trust pursuant to
Section 3.01 and (ii) the total number of Units to
be issued in connection with the initial deposit
and all anticipated deposits of additional
Securities. For purposes of calculating the Trust
Fund Evaluation and Unit Value, the Trustee shall
treat all such anticipated expenses as having been
paid and all liabilities therefor as having been
incurred, and all Units as having been issued, in
each case on the date of the Trust Agreement, and,
in connection with each such calculation, shall
take into account a pro rata portion of such
expense and liability based on the actual number
of Units issued as of the date of such
calculation. In the event the Trustee is informed
by the Depositor of a revision in its estimate of
total expenses or total Units and upon the
conclusion of the deposit of additional
Securities, the Trustee shall base calculations
made thereafter on such revised estimates or
actual expenses, respectively, but such adjustment
shall not affect calculations made prior thereto
and no adjustment shall be made in respect
thereof.
P. For purposes of this Trust, Units of the Trust
will not be rated by Standard & Poor's Ratings Services and
any reference to such rating or any requirement that
information be forwarded to Standard & Poor's Ratings
Services in the Standard Terms and Conditions of Trust shall
be inapplicable.
Q. For purposes of this Trust, any reference in the
Standard Terms and Conditions of Trust to "140%" shall be
replaced with "110%" in relation to the amount of cash or a
Letter of Credit needed to acquire Treasury Obligations.
R. The second paragraph of Section 3.02 of the
Standard Terms and Conditions of Trust 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 the Trust)
received by the Trust shall be dealt with in the manner
described at Section 3.12, herein, and shall by
retained or disposed of by the Trust according to those
provisions. The proceeds of any disposition shall be
credited to the Income Account of the 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."
S. The title of Section 3.15 of the Standard Terms
and Conditions of Trust shall be replaced with "Abatement of
Compensation of the Trustee, Evaluator, Portfolio Supervisor
and Sponsor," and sub-section (v) of the first sentence of
such Section 3.15 shall be amended by inserting the
following immediately after the phrase "Portfolio
Supervisor":
", the Sponsor for Bookkeeping and Administrative
Expenses"
T. Article III of the Standard Terms and Conditions of
Trust is hereby amended by inserting the following paragraph which
shall be entitled Section 3.16:
"Section 3.16. 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,
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 the Depositor (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. 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, 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 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 less 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."
IN WITNESS WHEREOF, Nike Securities L.P., The Chase
Manhattan Bank (National Association) 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. Xxxxx
Senior Vice President
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
Trustee
(SEAL) By Xxxxxx Xxxxxxxx
Vice President
Attest:
Xxxxxxx X. Xxxxxxx
Second Vice President
FIRST TRUST ADVISORS L.P.,
Evaluator
By Xxxxxx X. Xxxxx
Senior Vice President
FIRST TRUST ADVISORS L.P.,
Portfolio Supervisor
By Xxxxxx X. Xxxxx
Senior Vice President
SCHEDULE A TO TRUST AGREEMENT
Securities Initially Deposited
The First Trust Special Situations Trust, Series 133
(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.)
