FT 392
TRUST AGREEMENT
Dated: December 9, 1999
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 E-INFRASTURCTURE SELECT PORTFOLIO SERIES
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 $.0095 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I.The Initial Date of Deposit for the Trust is December 9, 1999.
J.The minimum amount of Securities to be sold by the Trustee pursuant to
Section 5.02 of the Indenture for the redemption of Units shall be 100
shares.
K. The 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
$.0015 per Unit.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
FOR WORLD WIDE WIRELESS SELECT PORTFOLIO SERIES
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 $.0095 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I.The Initial Date of Deposit for the Trust is December 9, 1999.
J.The minimum amount of Securities to be sold by the Trustee pursuant to
Section 5.02 of the Indenture for the redemption of Units shall be 100
shares.
K. The 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
$.0015 per Unit.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
FOR E-INFRASTRUCTURE PORTFOLIO SERIES
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 $.0095 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I.The Initial Date of Deposit for the Trust is December 9, 1999.
J.The minimum amount of Securities t o be sold by the Trustee pursuant
to Section 5.02 of the Indenture for the redemption of Units shall be
100 shares.
K. 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.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
FOR REIT GROWTH & INCOME PORTFOLIO, SERIES 3
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 $.0095 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I.The Initial Date of Deposit for the Trust is December 9, 1999.
J.The minimum amount of Securities to be sold by the Trustee pursuant to
Section 5.02 of the Indenture for the redemption of Units shall be 100
shares.
K. The 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.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
FOR WORLD WIDE WIRELESS PORTFOLIO SERIES
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 $.0095 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I.The Initial Date of Deposit for the Trust is December 9, 1999.
J.The minimum amount of Securities to be sold by the Trustee pursuant to
Section 5.02 of the Indenture for the redemption of Units shall be 100
shares.
K. The 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.
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 FT 392.
B.The term "Principal Account" as set forth in the Standard Terms an
Conditions of Trust shall be replaced with the term "Capital Account."
C.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.
D.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."
E.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."
F.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."
G.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."
H.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."
I.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 earlier of six months after the Initial Date of
Deposit or the conclusion of the primary offering period (as certified
by the Depositor to the Trustee), the Trustee shall withdraw from the
Account or Accounts specified in the Prospectus or, if no Account is
therein specified, from the Capital Account, and pay to the Depositor
the Depositor's reimbursable expenses of organizing the 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
earlier of six months after the Initial Date of Deposit or the
conclusion of the primary offering period; nor shall the Depositor be
entitled to or request reimbursement for expenses of organizing the
Trust incurred after the earlier of six months after the Initial Date of
Deposit or the conclusion of the primary offering period. If the cash
balance of the Capital Account is insufficient to make such withdrawal,
the Trustee shall, as directed by the Depositor, sell Securities
identified by the Depositor, or distribute to the Depositor Securities
having a value, as determined under Section 4.01 as of the date of
distribution, sufficient for such reimbursement. Securities sold or
distributed to the Depositor to reimburse the Depositor pursuant to this
Section shall be sold or distributed by the Trustee, to the 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 earlier of six months after the Initial Date of
Deposit or the conclusion of the primary offering period. Any assets
deposited with the Trustee in respect of the expenses reimbursable under
this Section 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
earlier of the six months after the Initial Date of Deposit or the
conclusion of the primary offering period, shall not be subject to
distribution or, unless the Depositor otherwise directs, used for
payment of redemptions in excess of the per Unit amount payable pursuant
to the next sentence. If a Unit holder redeems Units prior to the
earlier of six months after the Initial Date of Deposit or the
conclusion of the primary offering period, the Trustee shall pay to the
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.
J.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."
K.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) 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."
L.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."
M.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."
N.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."
O.Section 3.07 of the Standard Terms and Conditions of Trust is hereby
amended by adding the following subsection:
"(h) that the sale 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."
P.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."
Q.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 amount of $.0035 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 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."
R.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 (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."
S.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, 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 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."
T.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.
U.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."
V.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 and (iv)";
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 earlier of six months after the Initial Date of
Deposit or the conclusion of the primary offering 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."
W.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, Unit holders
may redeem 1,000 Units or more of a Trust and 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 5.05 with respect to rollover Unit
holders, if applicable, 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."
X.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)"
Y.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:
"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 Unitholders. 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."
Z.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:
"In case at any time the Trustee shall become incapable of acting, or if
a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Trustee in an involuntary case, or
the Trustee shall commence a voluntary case, under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or any receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) for the Trustee or for any substantial part of its
property shall be appointed, or the Trustee shall make any general
assignment for the benefit of creditors, or shall generally fail to pay
its debts as they become due, or if the Sponsor shall determine in good
faith that there has occurred either (1) a material deterioration in the
creditworthiness of the Trustee or (2) one or more negligent acts on the
part of the Trustee having a materially adverse effect, either singly or
in the aggregate, on the Trust or on one or more Trusts of one or more
Funds, such that the replacement of the Trustee is in the best interests
of the Unit holders, the Sponsor may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, one copy of which
shall be delivered to the Trustee so removed and one copy to the
successor trustee."
AA.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."
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:
Xxxxxxxx Xxxxx
Assistant Treasurer
FIRST TRUST ADVISORS L.P.,
Evaluator
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 392
(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.)
