FT 570
TRUST AGREEMENT
Dated: October 10, 2001
The Trust Agreement among Nike Securities L.P., as Depositor, The Chase
Manhattan 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 6
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. The Evaluator'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
$.0030 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 Evaluator provides services during less than the whole of such year).
Such fee may exceed the actual cost of providing such evaluation services for
the Trust, but at no time will the total amount received for evaluation services
rendered to unit investment trusts of which Nike Securities L.P. is the sponsor
in any calendar year exceed the aggregate cost to the Evaluator of supplying
such services in such year.
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 Portfolio Supervisor's compensation as referred to in Section
3.13 of the Standard Terms and Conditions of Trust shall be an annual fee in
the amount of $.0035 per Unit.
J. The Initial Date of Deposit for the Trust is October 10, 2001.
K. 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.
L. The Depositor's compensation for providing bookkeeping and other
administrative services as described in Section 3.14 of the Standard Terms and
Conditions of Trust shall be an annual fee in the amount of $.0033 per Unit.
M. 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 1,000 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 The Chase Manhattan 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 The Chase
Manhattan 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 to include the following subsection:
"Section 3.05.I.(e) deduct from the Income Account or, to the
extent funds are not available in such Account, from the Capital Account
and pay to the Depositor the amount that it is entitled to receive
pursuant to Section 3.14."
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. The first sentence of Section 3.13. shall be amended to read as
follows:
"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 the per Unit
amount set forth in Part II of the Trust Agreement, 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 Portfolio Supervisor provides services during less than the whole of
such year). Such fee may exceed the actual cost of providing such
portfolio supervision services for the Trust, but at no time will the
total amount received for portfolio supervision services rendered to
unit investment trusts of which Nike Securities L.P. is the sponsor in
any calendar year exceed the aggregate cost to the Portfolio Supervisor
of supplying such services in such year."
Y. Article III of the Standard Terms and Conditions of Trust is
hereby amended by inserting the following paragraphs which shall be entitled
Section 3.14.:
"Section 3.14.Bookkeeping and Administrative Expenses. As
compensation for providing bookkeeping and other administrative services
of a character described in ss.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 the per Unit amount set forth in Part II of the
Trust Agreement, 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 Depositor provides
services during less than the whole of such year). Such fee may exceed
the actual cost of providing such bookkeeping and administrative
services for the Trust, but at not time will the total amount received
for bookkeeping and administrative services rendered to unit investment
trusts of which Nike Securities L.P. is the sponsor in any calendar year
exceed the aggregate cost to the Depositor 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
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 Capital 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 Capital Accounts shall be
insufficient to provide for amounts payable pursuant to this Section
3.14, 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 3.14.
Any moneys payable to the Depositor pursuant to this Section 3.14
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."
Z. Article III of the Standard Terms and Conditions of Trust is
hereby amended by inserting the following paragraph which shall be entitled
Section 3.15:
"Section 3.15. 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."
AA. Notwithstanding anything to the contrary in Sections 3.15 and
4.05 of the Standard Terms and Conditions of Trust, so long as Nike
Securities L.P. is acting as Depositor, the Trustee shall have no power
to remove the Portfolio Supervisor.
BB. The following Section 3.16 shall be added:
"Section 3.16. Creation and Development Fee. If the Prospectus related to
the Trust specifies a creation and development fee, the Trustee shall, on such
date or dates set forth in the Prospectus for a Trust withdraw from the Capital
Account, an amount equal to the accrued and unpaid creation and development
fee as of such date 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
creation and development fee will accrue on a daily basis over the period and
at a rate as set forth in such Prospectus based on a percentage of the average
daily net asset value of the Trust. 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. Notwithstanding the
foregoing, the Depositor shall not receive any amount of Creation and Develop-
ment Fee which exceeds the maximum amount per Unit stated in the Prospectus.
The Depositor shall notify the Trustee, not later than ten business days prior
to the date on which the Depositor anticipates that the maximum amount of the
creation and development fee the Depositor may receive has been accrued and
shall also notify the Trustee as of the date when the maximum amount of the
creation and development fee has been accrued. The Trustee shall have no
responsibility or liability for damages or loss resulting from any error in
the information in the preceding sentence. 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."
CC. Article III of the Standard Terms and Conditions of Trust
is hereby amended by adding the following new Section 3.17:
"Section 3.17. 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."
DD. Article IV, Section 4.01 of the Standard Terms and Conditions
of Trust is hereby amended in the following manner:
1. Section 4.01(b) is hereby amended by deleting that portion of
the first sentence appearing after the colon and the entire second
sentence and replacing them in their entirety with the following:
"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 it is determined that these
prices are 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 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."
2. Section 4.01(c) is hereby deleted and replaced in
its entirety with the following:
"(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 Equity
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."
EE. The first sentence of Section 4.03. shall be amended to read as
follows:
"As compensation for providing evaluation services under this Indenture,
the Evaluator shall receive, in arrears, against a statement or statements
therefor submitted to the Trustee monthly or annually an aggregate annual fee
equal to the amount specified as compensation for the Evaluator in the Trust
Agreement, 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
Evaluator provides services during less than the whole of 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 invoice therefor from
the Evaluator, upon which, as to the cost incurred by the Evaluator of providing
services hereunder the Trustee may rely, and shall be charged against the Income
and/or Capital Accounts, in accordance with Section 3.05."
FF. 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."
GG. 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."
HH. 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 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
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."
II. 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."
JJ. 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 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."
KK. 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)"
LL. 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."
MM. 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."
NN. 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.
OO. 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."
PP. 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."
QQ. 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., The Chase Manhattan 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
THE CHASE MANHATTAN BANK, Trustee
By Xxxxxxx Xxxxxxx
Vice President
[SEAL]
ATTEST:
Xxxx Xxxxxx
Assistant Treasurer
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 570
(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.)
