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NATIONAL EQUITY TRUST
LOW FIVE PORTFOLIO SERIES
and for all other series formed on or subsequent to the effective date
specified below to which this Trust Indenture and Agreement is applicable
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TRUST INDENTURE AND AGREEMENT
Among
PRUDENTIAL SECURITIES INCORPORATED
As Depositor
UNITED STATES TRUST COMPANY
OF NEW YORK
As Trustee
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Dated: April 25, 1995
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TRUST INDENTURE AND AGREEMENT
National Equity Trust
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions......................................................................................2
ARTICLE II
DEPOSIT OF SECURITIES; ACCEPTANCE OF TRUST
Section 2.01. Deposit of Securities............................................................................5
Section 2.02. Acceptance of Trust..............................................................................6
Section 2.03. Issue of Units...................................................................................6
Section 2.04. Uncertificated Units.............................................................................7
Section 2.05. Deposit of Additional Securities.................................................................7
Section 2.06. Register of Units................................................................................9
ARTICLE III
ADMINISTRATION OF TRUST
Section 3.01. Initial Cost.....................................................................................9
Section 3.02. Income Account...................................................................................9
Section 3.03. Principal Account................................................................................9
Section 3.04. Reserve Account..................................................................................9
Section 3.05. Distribution.....................................................................................9
Section 3.06. Distribution Statements.........................................................................11
Section 3.07. Replacement Securities..........................................................................13
Section 3.08. Sale of Securities..............................................................................13
Section 3.09. Notice and Sale by Trustee......................................................................15
Section 3.10. Refunding Securities............................................................................15
Section 3.11. Notice of Actions...............................................................................15
Section 3.12. Extraordinary Distributions.....................................................................15
Section 3.13. Extraordinary Event - Security Retention and Voting.............................................17
Section 3.14. Deferred Sales Charge...........................................................................17
ARTICLE IV
EVALUATION OF SECURITIES
Section 4.01. Evaluation of Securities........................................................................18
Section 4.02. Tax Reports.....................................................................................18
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Page
Section 4.03. Liability of the Trustee........................................................................18
ARTICLE V
TRUST EVALUATION, REDEMPTION,
TRANSFER OF UNITS
Section 5.01. Trust Evaluation................................................................................19
Section 5.02. Redemptions by Trustee; Purchases by Depositor..................................................20
Section 5.03. Redemption Upon Termination.....................................................................22
Section 5.04. Transfer of Units...............................................................................23
ARTICLE VI
TRUSTEE
Section 6.01. General Definition of Trustee's Liabilities, Rights and Duties..................................23
Section 6.02. Books, Records and Reports......................................................................26
Section 6.03. Indenture and List of Securities on File........................................................27
Section 6.04. Compensation of Trustee.........................................................................28
Section 6.05. Removal and Resignation of Trustee; Successor...................................................29
Section 6.06. Qualification of Trustee........................................................................31
Section 6.07. Trustee's Response to Inquiries.................................................................31
Section 6.08. Waiver of Liens.................................................................................31
ARTICLE VII
RIGHTS OF UNIT HOLDERS
Section 7.01. Beneficiaries of Trust..........................................................................31
Section 7.02. Rights, Terms and Conditions....................................................................31
ARTICLE VIII
DEPOSITOR
Section 8.01. Liabilities; Power of Attorney..................................................................32
Section 8.02. Discharge.......................................................................................32
Section 8.03. Successors......................................................................................33
Section 8.04. Resignation.....................................................................................34
Section 8.05. Additional Depositors...........................................................................34
Section 8.06. Exclusions from Liability.......................................................................34
Section 8.07. Compensation....................................................................................35
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Page
ARTICLE IX
ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS
Section 9.01. Amendments without the Consent of Unit Holders..................................................35
Section 9.02. Notice of Amendment.............................................................................36
Section 9.03. Termination.....................................................................................36
Section 9.04. Construction....................................................................................38
Section 9.05. Written Notice..................................................................................38
Section 9.06. Severability....................................................................................38
Section 9.07. Dissolution of Depositor Not To Terminate.......................................................38
Section 9.08. Name............................................................................................38
EXECUTION.......................................................................................................................
ACKNOWLEDGMENTS.................................................................................................................
SECURITIES INITIALLY DEPOSITED..................................................................................................
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This Table of Contents does not constitute part of the Indenture.
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TRUST INDENTURE AND AGREEMENT dated April 25, 1995, among
PRUDENTIAL SECURITIES INCORPORATED, as Depositor, and UNITED STATES TRUST
COMPANY OF NEW YORK, as Trustee.
WITNESSETH that:
WHEREAS, the Depositor and the Trustee are entering into this
Trust Indenture and Agreement for the purpose of establishing certain of the
terms, covenants and conditions of the National Equity Trust series and each
subsequent Series which may be established from time to time hereafter,
incorporating by reference the terms hereof; and
WHEREAS, for the National Equity Trust Low Five Portfolio
Series 1, and each subsequent Series of the National Equity Trust, to which this
Trust Indenture and Agreement is applicable, the Depositor and the Trustee shall
execute a separate Reference Trust Agreement incorporating by reference this
Trust Indenture and Agreement and effecting any amendment, supplement or
variation from or to such incorporation by reference with respect to the related
series, and specifying for that series: (i) the Securities deposited in trust
and the number of Units delivered by the Trustee in exchange for the Securities
pursuant to Section 2.03; (ii) the initial fractional undivided interest
represented by each Unit in each Trust; (iii) the first Settlement Date; (iv)
the first Computation Day; (v) the first and subsequent Distribution Date(s);
(vi) the first and subsequent Record Date(s); (vii) the name of the Depositor;
(viii) the Termination Date and (ix) any other change or addition contemplated
or permitted by this Trust Indenture and Agreement; and
WHEREAS, the Depositor will acquire and, concurrently with the
execution and delivery of the appropriate Reference Trust Agreement, will
deposit in trust with the Trustee the Securities to be listed in the Schedule
thereto, all to be held by the Trustee in trust upon the terms and conditions
hereinafter set forth as amended, supplemented or varied by such Reference Trust
Agreement, for the use and benefit of all registered holders of units of
fractional undivided interest in the Trust to which such Reference Trust
Agreement relates; and
WHEREAS, concurrently with the receipt of the aforesaid
deposit, the Trustee will record on its books the ownership by the Depositor
thereof of units of fractional undivided interest in such Securities and in the
Income Account and the Principal Account maintained under this Indenture in the
manner hereinafter provided (which units of fractional undivided interest so
recorded respectively will represent in the aggregate 100% of the beneficial
interest established hereby in such Securities, Income Account and Principal
Account) and if the Sponsor so directs, will execute in the name of the
Depositor thereof a certificate or certificates representing the aggregate
number of Units specified in such Reference Trust Agreement and deliver same to
such Depositor.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the Depositor and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions: Whenever used in this
Indenture, the following words and phrases, unless the context clearly indicates
otherwise, shall have the following meanings:
(1) "Additional Securities" shall
mean such Securities (as defined herein) as are
listed in Supplementary Schedules of the Reference
Trust Agreement and which have been deposited to
effect an increase over the number of Units initially
specified in Part II of the Reference Trust
Agreement.
(2) "Additional Units" shall mean
such Units (as defined herein) as are issued in
respect of Additional Securities.
(3) "Basic Agreement" shall mean
this Trust Indenture and Agreement dated as indicated
on the cover page hereof as originally executed, or
if amended as hereinafter provided, as so amended,
exclusive of the terms contained in any related
Reference Trust Agreement.
(4) "Business Day" shall mean any
day other than a Saturday or Sunday or other day on
which the New York Stock Exchange is closed for
trading, a legal holiday in the City of New York, or
a day on which banking institutions are authorized by
law to close.
(5) "Computation Day" shall have the
meaning assigned to it in Part II of the Reference
Trust Agreement.
(6) "Contract Securities" shall mean
Securities which are to be acquired by the Trust
pursuant to contracts, including (i) Securities
listed in the Schedule to the Reference Trust
Agreement and (ii) Securities which the Depositor has
contracted to purchase for the Trust pursuant to
Sections 2.05 and 3.07.
(7) "Deferred Sales Charge" shall
mean any deferred sales charge payable in accordance
with the provisions of Section 3.12 hereof, as set
forth in the prospectus for a Trust.
(8) "Depositor" of the Trust shall
have the meaning assigned to it in Part II of the
Reference Trust Agreement.
(9) "Distribution Agency Agreement"
shall mean the Distribution Agency Agreement dated
the date of this Indenture among the Trustee, the
Depositor and the Distribution Agent.
(10) "Distribution Agent" shall mean
the Distribution Agent appointed in the Distribution
Agency Agreement, or its successor as appointed
pursuant to the Distribution Agency Agreement.
(11) "Distribution Date" shall have
the meaning assigned to it in Part II of the
Reference Trust Agreement.
(12) "Evaluation Time" shall mean
the close of trading on the New York Stock Exchange,
presently 4:00 p.m. or such other time as is
designated as the Evaluation Time in the prospectus
for a Trust.
(13) "Indenture" shall mean the
Basic Agreement, as further amended, supplemented or
varied by the Reference Trust Agreement.
(14) "Prospectus" shall mean the
prospectus relating to a Trust in the form first used
to confirm sales of Units of such Trust.
(15) "Record Date" shall have the
meaning assigned to it in Part II of the Reference
Trust Agreement.
(16) "Reference Trust Agreement"
shall mean a supplement to the Basic Agreement, the
purpose of which shall be to amend, supplement and/or
vary certain of the terms contained in the Basic
Agreement. The Reference Trust Agreement, together
with the Basic Agreement to the extent that such
Reference Trust Agreement incorporates it by
reference, defines all the terms, rights and duties
relevant to the series of National Equity Trust
series, to which such Reference Trust Agreement
relates.
(17) "Replacement Security" shall
mean a Security purchased by the Trustee pursuant to
Section 3.07 hereof.
(18) "Securities" shall mean such
common stock and other securities (including for all
purposes hereof "when-issued" and/or "regular way"
contracts, if any, for the purchase thereof evidenced
by the purchasing broker's confirmation of, or list
of its confirmations of, such contracts and a
certified check or checks
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and/or an irrevocable letter or letters of credit in
the amount required for such purchase) as are (i)
deposited in irrevocable trust and listed in the
Schedule or Supplementary Schedules to the Reference
Trust Agreement and (ii) received in exchange or
substitution for any Securities pursuant to Section
3.07 hereof or pursuant to Section 3.13 hereof, as
may from time to time be acquired and continue to be
held as a part of the Trust to which such Reference
Trust Agreement relates.
(19) "Special Security" shall have
the meaning assigned to it in Section 3.07 hereof.
(20) "Termination Date" shall mean
the date set forth in Part II of the Reference Trust
Agreement.
(21) "Trust" shall mean the trust
created by this Indenture in conjunction with a
Reference Trust Agreement, which shall be denominated
as indicated in Part II of the Reference Trust
Agreement relating to such Trust, and which shall
consist of the Securities held pursuant and subject
to this Indenture together with all dividends
thereon, received but undistributed, any
undistributed cash realized from the sale, redemption
or liquidation thereof, such amounts as may be on
deposit in the Reserve Account hereinafter
established and all other property and rights to
which Unit Holders may be entitled under the
provisions of this Indenture.
(22) "Trustee" shall mean United
States Trust Company of New York, or any successor
trustee as hereinafter provided for.
(23) "Unit" shall mean the
fractional undivided interest in and ownership for
the Trust which shall be initially equal to the
fraction specified for the Trust in Part II of the
Reference Trust Agreement, the denominator of which
fraction shall be decreased by the number of any such
Units redeemed as provided in Sections 5.02 and 5.03
and increased by the number of any Additional Units
as provided in Section 2.06 or revised as provided in
Section 2.03.
(24) "Unit Holder" shall mean the
registered holder of any Unit as recorded on the
registration books of the Trustee, his legal
representatives and heirs and the successors of any
corporation, partnership or other legal entity which
is a registered holder of any Unit and as such shall
be deemed a beneficiary of the Trust created by this
Indenture to the extent of his pro rata share
thereof.
(25) The words "herein," "hereby,"
"herewith," "hereof," "hereinafter," "hereunder,"
"hereinabove," "hereafter," "heretofore" and similar
words or phrases of reference and association shall
refer to this Indenture in its entirety.
(26) Words importing the singular
number shall include the plural number in each case
and vice versa and words importing persons shall
include corporations and associations, as well as
natural persons.
ARTICLE II
DEPOSIT OF SECURITIES; ACCEPTANCE OF TRUST
Section 2.01. Deposit of Securities: The Depositor,
concurrently with the execution and delivery of the applicable Reference Trust
Agreement, has deposited with the Trustee in trust the Securities listed in the
Schedule or Schedules attached to the Reference Trust Agreement in bearer form
or duly endorsed in blank or accompanied by all necessary instruments of
assignment and transfer in proper form to be held, administered and applied by
the Trustee as herein provided and/or cash (or a letter of credit in lieu of
cash) with written instructions to the Trustee to purchase one or more of such
Securities which cash (or cash in an amount equal to the face amount of the
letter of credit), to the
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extent not used by the Trustee to purchase such Securities within the 90-day
period following the first deposit of Securities in the Trust, shall be
distributed to Unit Holders on the Distribution Date next following such 90-day
period or such earlier date as the Depositor and the Trustee determine. In the
event that the purchase of Securities represented by "when-issued" and/or
"regular way" contracts shall not be consummated in accordance with said
contracts, the Trustee shall credit to the Principal Account pursuant to Section
3.03 hereof the cash or cash equivalents (including such portion of any letter
of credit applicable to such contracts) deposited by the Depositor for the
purpose of such purchase. Such monies, unless invested in substitute Securities
in accordance with Section 3.07 hereof, shall be distributed to Unit Holders
pursuant to Section 3.05 hereof on the second Distribution Date following the
failure of consummation of such purchase or such earlier date as the Depositor
and the Trustee determine. The Depositor shall deliver the Securities listed on
said Schedule or Schedules to the Trustee which were not actually delivered
concurrently with the execution and delivery of the Reference Trust Agreement
within 90 days after said execution and delivery or, if Section 3.07 applies,
within such shorter period as is specified in Section 3.07.
The Trustee is irrevocably authorized hereby to effect
registration of transfer of the Securities in fully registered form in the name
of the Trustee or its nominee.
Section 2.02. Acceptance of Trust: The Trustee hereby
accepts the Trust created by this Indenture for the use and benefit of the Unit
Holders in the Trust, subject to the terms and conditions of this Indenture.
Section 2.03. Issue of Units: By executing the Reference
Trust Agreement and receipt for deposited property, the Trustee will thereby
acknowledge receipt of the deposit relating to the Trust to which such Reference
Trust Agreement relates, referred to in Section 2.01, and simultaneously with
the receipt of said deposit, will record on its books for the account of the
Depositor the aggregate number of Units of the Trust in exchange therefor as
specified in Part II of the Reference Trust Agreement. The number of Units may
be increased through a split of the Units or decreased through a reverse split
thereof, as directed by the Depositor, on any day on which the Depositor is the
only Unit Holder, which revised number of Units shall be recorded by Trustee on
its books.
The Trusts created by this Indenture are separate and distinct
trusts for all purposes and the assets of one such trust may not be commingled
with the assets of any other, nor shall the expenses of any such trust be
charged against the other. The Units representing the ownership of a fractional
undivided interest in one Trust shall not be exchangeable for Units representing
the ownership of an undivided fractional interest in any other except as set
forth in the applicable Prospectus.
Section 2.04. Uncertificated Units: All Units shall be
held in uncertificated form, unless and as the Trustee may deem it appropriate
to issue certificates or if so directed by the Depositor. The Trustee may deem
and treat the person in whose name any Unit is registered upon the books of the
Trustee as the owner thereof for all purposes and the Trustee shall not be
affected by any notice to the contrary.
Section 2.05. Deposit of Additional Securities: From time
to time and in the discretion of the Depositor, the Depositor may make deposits
of Additional Securities duly endorsed in blank or accompanied by all necessary
instruments of assignment and transfer in proper form (or contracts to purchase
Additional Securities and cash or an irrevocable letter of credit in an amount
necessary to consummate the purchase of any Additional Securities pursuant to
such contracts ("Additional Contract Securities")) and/or cash (or a letter of
credit in lieu of cash) with instructions to the Trustee to purchase one or more
additional Securities (which cash (or cash in an amount equal to the face amount
of the letter of credit), to the extent not used by the Trustee to purchase such
Additional Securities within the 90-day period following the first deposit of
Securities in the Trust, shall be distributed to Unit Holders on the
Distribution Date next following such 90-day period or such earlier date as the
Depositor and the Trustee determine) and Cash (as defined below), if Cash is an
asset of the Trust immediately prior to the supplemental deposit, provided that
each deposit during the 90-day period following the first deposit of Securities
in the Trust shall replicate, to the extent practicable as hereinafter provided,
the Securities (including Contract Securities) and shall exactly
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replicate Cash (other than Cash to be distributed solely to persons other than
persons receiving the distribution as holders of Additional Units created by the
deposit) held in the Trust immediately prior to each such deposit; and provided
further that each deposit of Additional Securities and Cash, if any, subsequent
to such 90-day period shall exactly replicate the Securities (including Contract
Securities) and Cash (other than Cash to be distributed solely to persons other
than persons receiving the distribution as holders of additional Units created
by the deposit) held in the Trust immediately prior to each such deposit. For
purposes of this paragraph, Cash means cash on hand in the Trust and/or cash
receivable by the Trust as of the date of the supplemental deposit reduced by
payables and accrued expenses.
Accordingly, for a deposit subsequent to the 90-day period
following the first deposit of Securities:
1. Any Additional Securities included in a deposit shall
be identical to Securities held in the Trust immediately prior to the deposit
and in amounts such that (i) the number of shares of Additional Securities of a
particular issue included in a deposit divided by (ii) the aggregate of the
number of shares of all Additional Securities included in the deposit results in
a fraction which is the same as the fraction resulting from division of (iii)
the aggregate number of shares of the Securities of the same issue held in the
Trust immediately prior to the deposit divided by (iv) the aggregate number of
shares of all Securities held in the Trust immediately prior to the deposit;
2. Any deposit of Additional Securities shall be
accompanied by Cash in an amount bearing the same ratio to the aggregate number
of shares of all Additional Securities in the deposit as the Cash held in the
Trust immediately prior to the deposit bears to the aggregate number of shares
of all Securities held in the Trust immediately prior to the deposit, exclusive
of Cash held in the Trust and designated for distribution solely to persons
other than persons receiving the distribution as holders of Additional Units
created by the deposit; and for deposit during the 90-day period following the
first deposit of Securities in the Trust, the rules stated in subparagraphs (1)
and (2) of this paragraph shall apply except that any Additional Securities
(including Additional Contract Securities) need be only substantially similar
(rather than identical to) Securities held in the Trust immediately prior to the
deposit and need meet the proportionality requirements only to the extent
practicable. Without limiting the generality of the phrase "to the extent
practicable", if the Depositor specifies a minimum number of shares of a
Security with respect to a particular trust to be included in a deposit and such
minimum requirement cannot be met or if a Security identical to a Security held
in the Trust is not readily obtainable, substitution of other substantially
similar Securities (including Securities of an issue originally deposited) in
order to meet the foregoing proportionality requirements shall be considered as
a meeting of such requirements "to the extent practicable". Each deposit of
Additional Securities shall be listed in a Supplementary Schedule to the
Reference Trust Agreement stating the date of such deposit and the number of
Additional Units being issued therefor. The Trustee shall acknowledge in such
Supplementary Schedule receipt of the deposit, and simultaneously with the
receipt of said deposit, reflect the aggregate number of Additional Units
specified in such Supplementary Schedule by recording such Additional Units on
its books. Such Additional Securities shall be held, administered and applied by
the Trustee in the same manner as herein provided for the Securities. The
execution by the Depositor in connection with the deposit of Additional
Securities of a Supplementary Schedule to the Reference Trust Agreement shall
constitute the approval by the Depositor as satisfactory in form and substance
of the contracts to be entered into or assumed by the Trustee with regard to any
Additional Securities listed on such Supplementary Schedule and authorization to
the Trustee on behalf of the Trust to enter into or assume such contracts and
otherwise to carry out the terms and provisions thereof or to take other
appropriate action in order to complete the deposit of the Additional Securities
covered thereby into the Trust. The parties hereto agree that a Supplementary
Schedule to the Reference Trust Agreement may be delivered by telecopier and
that such delivery shall have the same force and effect as the delivery of an
original executed document.
Section 2.06. Register of Units: A register shall be kept
by the Trustee containing the names and addresses of the Unit Holders and the
number of Units owned by each Unit Holder, and in which all issues, exchanges,
transfers and cancellations of Units shall be recorded.
ARTICLE III
ADMINISTRATION OF TRUST
Section 3.01. Initial Cost: With respect to the Trust, the
cost of the initial preparation, printing and execution of this Indenture shall
be paid by the
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Depositor, provided, however, that the liability on the part of the Depositor
for such initial costs, fees and expenses shall not include any fees, costs or
other expenses incurred in connection herewith after the execution of this
Indenture, and the deposit relating to the Trust, referred to in Section 2.01.
Section 3.02. Income Account: The Trustee shall collect
the dividends or other like cash distributions on the Securities in the Trust as
such are paid, and credit such amounts, as collected, to a separate account to
be known as the "Income Account."
Section 3.03. Principal Account: The Securities in the
Trust and all cash, other than amounts credited to the Income Account, received
by the Trustee in respect of the Securities in the Trust shall be credited to a
separate account for the Trust to be known as the "Principal Account."
Section 3.04. Reserve Account: From time to time the
Trustee shall withdraw from the cash on deposit in the Principal Account such
amounts as it, in its sole discretion, shall deem requisite to establish a
reserve for any applicable taxes or other governmental charges that may be
payable out of the Trust. Such amounts so withdrawn shall be credited to a
separate account which shall be known as the "Reserve Account." The Trustee
shall not be required to distribute to the Unit Holders any of the amounts in
the Reserve Account; provided, however, that if the Trustee shall, in its sole
discretion, determine that such amounts are no longer necessary for payment of
any applicable taxes or other governmental charges, then it shall promptly
deposit such amounts in the account from which previously withdrawn, or, if such
Trust has been terminated or is in the process of termination, the Trustee shall
distribute to each Unit Holder such holder's interest in the Reserve Account in
accordance with Section 9.04 hereof.
Section 3.05. Distribution: As of each Computation Day for
the Trust, the Trustee shall:
(a) deduct from the Income Account, or, to the extent funds
are not available in such Account, from the Principal Account, and pay
to itself individually the amounts that it is at the time entitled to
receive pursuant to Section 6.04 or this Section 3.05;
(b) deduct from the Income Account, or, to the extent funds
are not available in such Account, from the Principal Account, an
amount equal to the unpaid fees and expenses, if any, including
registration charges, Blue Sky fees, printing costs, attorneys' fees,
auditing costs and other miscellaneous out-of-pocket expenses, as
certified by the Depositor, incurred in keeping the registration of the
Units and the Trust on a current basis, provided, however, that no
portion of such amount shall be deducted or paid unless the payment
thereof from the Trust is at that time lawful; and
(c) deduct from the Income Account or, to the extent funds are
not available in such account, from the Principal Account the estimated
amount that the Depositor is entitled to receive pursuant to Section
8.07 and hold such amount without interest until such time as it is
payable to the Depositor as set forth below. The Trustee shall
distribute to the Depositor from the amount so held pursuant to the
immediately preceding sentence the amounts that the Depositor is
entitled to receive pursuant to Section 8.07 on account of its services
theretofore performed and expenses theretofore incurred. With respect
to Trusts having monthly, quarterly or semiannual Distribution Dates,
the Trustee shall deduct from the Income Account one-twelfth,
one-quarter or one-half, as the case may be, of the estimated annual
amount that the Depositor is entitled to receive and shall distribute
such amounts to the Depositor on the monthly, quarterly or semiannual
Distribution Dates, as the case may be. In the event of the appointment
of a successor depositor pursuant to Section 6.01(f)(1), deduct from
the Income Account, or, to the extent that funds are not available in
such Account, from the Principal Account, and pay to such successor
depositor the amounts, if any, that it is at the time lawful for it to
receive under said Section 6.01(f)(1).
All amounts (i) permitted to be withdrawn from the Principal
Account under this Indenture in order to satisfy obligations which, pursuant to
the terms hereof, are first to be paid out of the Income Account to the extent
funds are available, or (ii) permitted to be withdrawn from the Principal
Account pursuant to Section 5.02 hereof, may be made only
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from the balance in the Principal Account after excluding capital amounts being
held for distribution to Unit Holders of record on the Record Date for a prior
Distribution Date pursuant to the second following paragraph. The Principal
Account shall be reimbursed for any such amounts described in clause (i) of the
preceding sentence when sufficient funds are next available in the Income
Account after giving effect to the payment from the Income Account of all
amounts otherwise required to be deducted therefrom at that time.
On each Distribution Date or within a reasonable period of
time thereafter, the Trustee shall distribute by mail to each Unit Holder of
record at the close of business on the preceding Record Date at his address
appearing on the registration books of the Trustee such holder's pro rata share
of the balance of the Income Account, plus such holder's pro rata share of the
distributable cash balance of the Principal Account, each computed as of the
preceding Record Date after deduction of all amounts specified in paragraphs
(a), (b) and (c) of this Section 3.05; provided, however, that funds credited to
the Principal Account in the event of the failure of consummation of a contract
to purchase Securities pursuant to Section 2.01 hereof, funds representing the
proceeds of the sale of Securities pursuant to Section 3.08 hereof, and funds
representing the proceeds of the sale of Securities under Section 5.02, 5.03,
6.04 or this Section 3.05 in excess of the amounts needed for the purposes of
said Sections shall not be distributed until the second following Distribution
Date or at such earlier date as shall be determined by the Trustee or directed
by the Depositor. The Trustee shall not be required to make a distribution from
the Principal Account unless the cash balance on deposit therein available for
distribution shall be sufficient to distribute at least $1.00 per 1,000 Units.
The amounts to be so distributed to each Unit Holder of the
Trust of record as of each Record Date shall be that pro rata share of the cash
balance as of such Record Date of the Income and Principal Accounts of the
Trust, as shall be represented by a notation on the registration or other record
books of the Trustee.
In the computation of each such share, fractions of less than
one cent shall be omitted. After any such distribution provided for above, any
cash balance remaining in the Income Account or the Principal Account shall be
held in the same manner as other amounts subsequently deposited in each of such
Accounts, respectively.
For the purposes of distribution as herein provided, the
holders of record on the registration books of the Trustee at the close of
business on each Record Date shall be conclusively entitled to such
distribution, and no liability shall attach to the Trustee by reason of payment
to any such registered Unit Holder of record. Nothing herein shall be construed
to prevent the payment of amounts from the Income Account and the Principal
Account to individual Unit Holders by means of one check, draft or other proper
instrument, provided that the appropriate statement of such distribution shall
be furnished therein as provided in Section 3.06 hereof.
On each Deferred Sales Charge payment date set forth in the
prospectus for a Trust, the Trustee shall pay the account created pursuant to
Section 3.14 the amount of the Deferred Sales Charge payable on each such date
as stated in the prospectus for a Trust. Such amount shall be withdrawn from the
Principal Account from the amounts therein designated for such purpose or
otherwise deducted from such account.
Section 3.06. Distribution Statements: With each
distribution from the Income or Principal Accounts of the Trust, the Trustee
shall furnish Unit Holders a statement of the amount being distributed from each
such account, expressed in each case as a dollar amount per Unit.
Within a reasonable period of time after the last Business Day
of each calendar year, but not later than February 28th, the Trustee shall
furnish to each person who at any time during such calendar year was a Unit
Holder a statement setting forth, with respect to such calendar year:
(A) as to the Income Account of the Trust:
(1) the amount of dividends received on the
Securities,
(2) the amounts paid from the Income Account
for redemptions pursuant to Section 5.02,
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(3) the deductions from the Income Account for
payment of applicable taxes or other governmental charges, if any,
compensation of the Depositor, fees and expenses of the Trustee,
transfers to the Reserve Account, any expenses paid by the Trust
pursuant to Section 3.05 hereof and any Deferred Sales Charge
paid,
(4) the amount distributed from the Income
Account, identifying separately amounts distributed as dividends
and as other income,
(5) any other amount credited to or deducted
from the Income Account, and
(6) the balance remaining after such
distributions and deductions, expressed both as a total dollar
amount and as a dollar amount per Unit outstanding on the last
Business Day of such calendar year;
(B) as to the Principal Account of the Trust:
(1) the dates of the sale, liquidation or
redemption of any of the Securities, the identity of such
Securities and the net proceeds received therefrom, excluding any
portion thereof credited to the Income Account,
(2) the amount paid from the Principal Account
for redemption pursuant to Section 5.02,
(3) the deductions for payment of
applicable taxes and other governmental charges, if any, fees and
expenses of the Trustee, transfers to the Reserve Account, any
expenses paid by the Trust under Section 3.05 hereof and any
Deferred Sales Charge paid,
(4) the amount distributed from the Principal
Account for such period, pursuant to Section 3.05 hereof,
(5) any other amount credited to or deducted
from the Principal Account, and
(6) the balance remaining after such
distributions and deductions, expressed both as a total dollar
amount and as a dollar amount per Unit outstanding on the last
Business Day of such calendar year; and
(C) the following information:
(1) a list of the Securities held in the Trust
as of the last Business Day of such calendar year,
(2) the number of Units outstanding on the last
Business Day of such calendar year,
(3) the Unit Value (as defined in Section 5.01)
based on the last evaluation of such Trust made during such
calendar year, and
(4) the amounts actually distributed
during such calendar year from the Income and Principal Accounts
of the Trust, separately stated, expressed both as total dollar
amounts and as dollar amounts per Unit outstanding on the Record
Date for such distributions.
Section 3.07. Replacement Securities: In the event that
any Contract Security is not delivered due to any occurrence, act or event
beyond the control of the Depositor and of the Trustee (such a Contract Security
being herein called a "Special Security"), the Depositor may instruct the
Trustee to purchase Replacement Securities which have been selected by the
Depositor having a cost not in excess of the cost of the Special Securities not
so delivered. To be eligible for inclusion in the Trust, the Replacement
Securities which the Depositor selects must: (i) be of the same type as that
replaced (e.g., both will be common stock or preferred stock); (ii) in the
Depositor's judgment, closely resemble the Special Security as respects the
investment characteristics which led
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the Depositor to select the Special Security for inclusion in the Trust; and
(iii) be purchased within twenty days after delivery of notice of the failed
contract to the Trustee or to the Depositor, whichever occurs first. Any
Replacement Securities received by the Trustee shall be deposited hereunder and
shall be subject to the terms and conditions of this Indenture to the same
extent as other Securities deposited hereunder. No such deposit of Replacement
Securities shall be made after the earlier of (i) 90 days after the date of
execution and delivery of the applicable Reference Trust Agreement or (ii) the
first Distribution Date to occur after the date of execution and delivery of the
applicable Reference Trust Agreement.
Whenever a Replacement Security is acquired by the Depositor
pursuant to the provisions of this Section 3.07, the Trustee shall, within five
days thereafter, mail to all Unit Holders notices of such acquisition, including
an identification of the Special Security and the Replacement Security acquired.
The purchase price of a Replacement Security shall be paid out of the funds in
the principal account attributable to the Special Security which it replaces.
The Trustee shall not be liable or responsible in any way for depreciation or
loss incurred by reason of any purchase made pursuant to any such instructions
from the Depositor and in the absence of such instructions the Trustee shall
have no duty to purchase any Replacement Securities under this Indenture. The
Depositor shall not be liable for any failure to instruct the Trustee to
purchase any Replacement Security or for errors of judgment in selecting any
Replacement Security.
Section 3.08. Sale of Securities: In order to maintain the
sound investment character of the Trust, the Depositor may direct the Trustee to
sell or liquidate Securities at such price and time and in such manner as shall
be determined by the Depositor, provided that the Depositor has determined that
any one or more of the following conditions exist:
(a) that there has been a failure by the issuer of such
Securities to declare or pay an anticipated dividend thereon;
(b) that any action or proceeding has been instituted in law
or equity seeking to restrain or enjoin the payment of dividends on any
such Securities, or that there exists any other legal question or
impediment affecting such Securities or the payment of dividends on the
same;
(c) that there has occurred any breach of covenant or warranty
in any resolution, ordinance, trust, indenture or other agreement or
document, which would adversely affect either immediately or
contingently the payment of dividends on such Securities;
(d) that the price of any such Securities has declined to such
an extent, or such other market or credit factor exists, that in the
opinion of the Depositor the retention of such Securities would be
detrimental to the Trust and to the interest of the Unit Holders;
(e) that there has been a default in the payment of principal
or par or stated value of, premium, if any, or income on any other
outstanding securities of the issuer or the guarantor of such
securities which might materially and adversely, either immediately or
contingently, affect the declaration or payment of dividends on the
Securities; and
(f) that the tax treatment of the Trust as a grantor trust
would otherwise be jeopardized.
In order to pay the Deferred Sales Charge, the Trustee shall
sell or liquidate such an amount of Securities and at such time and from time to
time and in such manner as the Depositor shall direct such that the proceeds of
such sale or liquidation shall equal the amount required to be paid to the
Depositor pursuant to the Deferred Sales Charge program as set forth in the
prospectus for a Trust.
Upon receipt of such direction from the Depositor, upon which
the Trustee shall rely, the Trustee shall proceed to sell the specified
Securities in accordance with such direction. The Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any sale
made pursuant to any such direction or by reason of the failure of the Depositor
to give any such direction, and in the absence of such direction
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the Trustee shall have no duty to sell any Securities under this Section 3.08.
The Depositor shall not be liable for errors of judgment in directing or failing
to direct the Trustee pursuant to this Section 3.08.
Section 3.09. Notice and Sale by Trustee: If at any time
there has been a failure by the issuer of any of the Securities to pay a
dividend that is due and payable, the Trustee shall notify the Depositor
thereof. If within thirty days after such notification the Trustee has not
received any instruction from the Depositor to sell or to hold or to take any
other action in connection with such Security, the Trustee shall sell such
Security forthwith, and the Trustee shall not be liable or responsible in any
way for depreciation or loss incurred by reason of such sale or by reason of
any action or inaction in accordance with such written instructions of the
Depositor. The Trustee shall promptly notify the Depositor of such action in
writing and shall set forth therein the Security sold and the proceeds received
therefrom.
Section 3.10. Refunding Securities: Except as otherwise
provided in Section 3.13, 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, the
Trustee shall reject such offer. However, should any exchange or substitution
be effected notwithstanding such rejection or without an initial offer, any
Securities, cash and/or property received in exchange shall be deposited
hereunder and shall be promptly sold, if securities or property, by the
Trustee. The cash then remaining shall be distributed to Unit Holders on the
next Distribution Date in the manner set forth in Section 3.05 regarding
distributions from the Principal Account.
Section 3.11. Notice of Actions: Except as otherwise
provided in Section 3.13, 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
holders of any Securities held by the Trust (including, but not limited to, the
making of any demand, direction, request, giving of any notice, consent or
waiver or the voting with respect to election of directors or any amendment or
supplement to any corporate resolution, agreement or other instrument under or
pursuant to which such Securities have been issued) the Trustee shall promptly
notify the Depositor and shall thereupon take such action or refrain from
taking any action as the Depositor shall in writing direct; provided, however,
that if the Depositor shall not within five business days of the giving of such
notice to the Depositor direct the Trustee to take or refrain from taking any
action, the Trustee shall take such action as it, in its sole discretion, shall
deem advisable. Neither the Depositor nor the Trustee shall be liable to any
person for any action or failure to take action with respect to this Section.
Section 3.12. Extraordinary Distributions: Except as
otherwise provided in Section 3.13, any property received by the Trustee after
the initial date of Deposit in a form other than cash or additional shares of
the Securities listed on Schedule A or of a Replacement Security, shall be
either (i) dealt with under the Distribution Agreement as though such property
were an asset of the Trust other than cash remaining on hand at the termination
of the Trust or (ii) sold, and the proceeds of sale credited to the Principal
Account of the Trust, all as the Depositor may direct. In no event shall the
Trustee hold as part of the Trust, except temporarily pending sale or
distribution as described in the preceding sentence, any property other than
cash (including a letter of credit) and the Securities described on Schedule A
or a Replacement Security.
The Securities and cash represented by a Unit shall be
uniform so that each Unit shall at all times represent property identical to
that represented by every other Unit. Securities identical to those represented
by a Unit and received as the result of a stock dividend or stock split may be
retained in the Trust and the number of shares of such a Security represented
by a Unit adjusted accordingly. All other non-cash distributions in respect of
any Securities held in the Trust shall be sold or distributed to Unit Holders
through the Distribution Agent, as referred to above.
Section 3.13. Extraordinary Event - Security Retention and
Voting. In the event the Trustee is notified of any action to be taken or
proposed to be taken by holders of the securities held by the Trust in
connection with any proposed merger, reorganization, spin-off, split-off or
split-up by the issuer of stock or Securities held in the Trust, the Trustee
shall take such action or refrain from taking any action, as appropriate, so as
to insure that the Securities are voted as closely as possible in the same
manner and in the same general proportion as are the Securities held by owners
other than the Trust. If stock or Securities are received by the Trustee, with
or without cash, as a result of any merger, reorganization, spin-off, split-off
or split-up by the issuer of stock or
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Securities held in the Trust, the Trustee at the direction of the Depositor may
retain such stock or Securities in the Trust. Neither the Depositor nor the
Trustee shall be liable to any person for any action or failure to take action
with respect to this section.
Section 3.14. Deferred Sales Charge. If the Reference
Trust Agreement and Prospectus for a Trust specifies a Deferred Sales Charge,
the Trustee shall, on the dates specified in and as permitted by the
prospectus, withdraw from the Income Account if such account is designated in
the prospectus as the source of the payments of the Deferred Sales Charge, or
to the extent funds are not available in that account or if such account is not
so designated, from the Principal Account, an amount per Unit specified in the
prospectus and credit such amount to a special, non-Trust account maintained at
the Trustee out of which the Deferred Sales Charge will be distributed to the
Depositor. If the Income Account is not designated as the source of the
Deferred Sales Charge payment or if the balances in the Income and Principal
Accounts are insufficient to make any such withdrawal, the Trustee, shall, as
directed by the Depositor, either advance funds in an amount equal to the
proposed withdrawal and be entitled to reimbursement of such advance upon the
deposit of additional monies in the Income Account or the Principal Account,
sell Securities and credit the proceeds thereof to such special Depositor's
account or credit Securities in kind to such special Depositor's Account. Such
directions shall identify the Securities, if any, to be sold or distributed in
kind and shall contain, if the Trustee is directed by the Depositor to sell a
Security, instructions as to execution of such sales. If a Unit Holder redeems
Units prior to full payment of the Deferred Sales Charge, the Trustee shall, if
so provided in the Reference Trust Agreement and Prospectus, on the Redemption
Date, withhold from the Redemption Price payment to such Unit Holder an amount
equal to the unpaid portion of the Deferred Sales Charge as such amount is
certified by the Depositor to the Trustee prior to the Redemption Date, upon
which certification the Trustee shall be entitled to rely, and distribute such
amount to such special Depositor's account or, if the Depositor shall purchase
such Unit pursuant to the terms of Section 5.02 hereof, the Depositor shall pay
the Redemption Price for such Unit less the unpaid portion of the Deferred
Sales Charge. The Depositor may at any time instruct the Trustee to distribute
to the Depositor cash or Securities previously credited to the special
Depositor's account.
ARTICLE IV
EVALUATION OF SECURITIES
Section 4.01. Evaluation of Securities: The Trustee shall
determine separately and promptly furnish to the Depositor upon request the
value of each issue of the Securities in the Trust (determined as set forth
below) as of the Evaluation Time on each of the days on which the Trustee shall
make the Trust Evaluation required by Section 5.01. In making the evaluations
the Trustee shall determine the value of each issue of the Securities in the
Trust by the following methods: If the Securities are listed on one or more
national securities exchanges, such valuation shall be based on the closing
price on such exchange which is the principal market thereof, deemed to be the
New York Stock Exchange if the Securities are listed thereon (unless the
Trustee deems such price inappropriate as a basis for valuation). If the
Securities are not so listed, or, if so listed and the principal market
therefor is other than such exchange or there is no closing price on such
exchange, such valuation shall be based on the closing price in the
over-the-counter market (unless the Trustee deems such price inappropriate as a
basis for valuation) or if there is no such closing price, by any of the
following methods which the Trustee deems appropriate: (i) on the basis of
current bid prices of such Securities as obtained from investment dealers or
brokers (including the Depositor) who customarily deal in securities comparable
to those held by the Trust, or (ii) if bid prices are not available for any of
such Securities, on the basis of bid prices for comparable securities, or (iii)
by appraisal of the value of the Securities on the bid side of the market or by
such other appraisal as is deemed appropriate, or (iv) by any combination of
the above. The Trustee shall also make an evaluation of the Securities
deposited in the Trust as of the time said Securities are deposited under this
Indenture. Such evaluation shall be made on the same basis as set forth above.
The Trustee's determination of the closing prices of the Securities on the date
of deposit shall be included in the Schedules attached to the Reference Trust
Agreement.
Section 4.02. Tax Reports: For the purpose of permitting
Unit Holders to satisfy any reporting requirements of applicable Federal or
State tax law, the Trustee shall transmit to any Unit Holder upon written
request any determinations made by the Trustee pursuant to Section 4.01.
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Section 4.03. Liability of the Trustee: The Depositor and
Unit Holders may rely on any evaluation furnished by the Trustee and shall have
no responsibility for the accuracy thereof. The determinations made by the
Trustee hereunder shall be made in good faith upon the basis of the best
information available to it. The Trustee shall be under no liability to the
Depositor or Unit Holders for errors in judgment, provided, however, that this
provision shall not protect the Trustee against any liability to which it would
otherwise be subject by reason of willful misfeasance, bad faith or negligence
in the performance of its duties or by reason of its reckless disregard of its
obligations and duties hereunder. The Trustee shall not be liable or
responsible for depreciation or losses incurred by reason of the purchase, sale
or retention of any Securities.
ARTICLE V
TRUST EVALUATION, REDEMPTION,
TRANSFER OF UNITS
Section 5.01. Trust Evaluation: The Trustee shall make an
evaluation of the Trust as of the Evaluation Time (i) on the last Business Day
of each of the months of June and December, (ii) on the day on which any Unit
of the Trust is tendered for redemption (unless tender is made after the
Evaluation Time on such day, in which case tender shall be deemed to have been
made on the next day subsequent thereto on which the New York Stock Exchange is
open for trading), and (iii) on any other day desired by the Trustee or
requested by the Depositor. Such evaluations shall take into account and
itemize separately (a)(1) the cash on hand in the Trust (other than monies on
deposit in the Reserve Account, funds deposited on the date hereof by the
Depositor for the purchase of Securities and not theretofore credited to the
Principal Account pursuant to Section 3.03 and funds in the Principal Account
with respect to which contracts for the purchase of the Replacement Securities
have been entered into pursuant to Section 3.07 hereof), including dividends
receivable on stocks trading ex dividend, (a)(2) the value of each issue of the
Securities in the Trust as determined by the Trustee pursuant to Section 4.01,
and (a)(3) all other assets of the Trust. For each such evaluation there shall
be deducted from the sum of the above (b)(1) amounts representing any
applicable taxes or other governmental charges payable out of the Trust and for
which no deductions shall have previously been made for the purpose of addition
to the Reserve Account, (b)(2) amounts representing accrued fees of the Trustee
and expenses of the Trust including but not limited to unpaid fees of the
Trustee and expenses of the Trust (including legal and auditing expenses),
accrued fees and expenses of the Depositor and its respective successors, if
any, and (b)(3) cash held for distribution to Unit Holders of record as of a
date on or prior to the evaluation then being made. The value of the pro rata
share of each Unit of the Trust determined on the basis of any such evaluation
shall be referred to herein as the "Unit Value."
The sum of (a)(1) and (a)(3) reduced by the sum of (b)(1) and
(b)(2) and (b)(3) shall be referred to herein as the "Unit Cash Value."
The Trustee shall promptly advise the Depositor of each
determination of Unit Value made by it as above provided, and, in addition,
upon each evaluation by the Trustee under Section 4.01 other than those
involved in such calculations of Unit Value, the Trustee shall promptly furnish
to the Depositor, for purposes of assisting it in maintaining a market in the
Units, with such information regarding the Principal, Income and Reserve
Accounts as the Depositor may reasonably request.
Section 5.02. Redemptions by Trustee; Purchases by
Depositor: On any Business Day on which any Unit or Units are tendered for
redemption (the "Tender Day") by a Unit Holder or his duly authorized attorney
to the Trustee at its corporate trust office in the City of New York, such
Units shall be redeemed by the Trustee on that Tender Day. Units in
uncertificated form shall be tendered by means of an appropriate request for
redemption in form approved by the Trustee. Unit Holders must sign exactly as
their name appears on the register with the signature guaranteed by an officer
of a national bank or trust company, or by a member firm of either the New
York, Midwest, or Pacific Coast Stock Exchanges, or in such other manner as may
be acceptable to the Trustee. The Trustee may also require additional
documents such as, but not limited to, trust instruments, certificates of
death, appointments as executor or administrator or certificates of corporate
authority. Subject to payment by such Unit Holder of any tax or other
governmental charges which may be imposed thereon, such redemption is to be
made by distribution to the Distribution Agent on behalf of the redeeming Unit
Holder on the Tender Day and subsequent distribution to such Unit Holder by the
Distribution Agent no later than
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the next Business Day following the Tender Day (such next Business Day being
hereinafter the "Redemption Date") of (i) the Holder's pro rata portion as of
the Tender Day of the Securities in the Trust, in whole shares, as designated by
the Sponsor and (ii) cash equal to the Unit Cash Value multiplied by the number
of Units being redeemed (herein called the "Redemption Distribution"). In
addition, the Trustee shall distribute to the Distribution Agent no later than
the seventh calendar day after Tender Day (or if such is not a Business Day,
then the first Business Day prior thereto), for distribution to a redeeming Unit
Holder on such day, cash equal to the value of any fractional shares included in
such Unit Holder's pro rata portion of the Securities as of the Tender Day.
The Depositor shall maintain with the Trustee a current list
of Securities held in the Trust designated to be sold for the purpose of
satisfying amounts for the payment of cash equivalent to the value of
fractional shares; provided that if the Depositor shall for any reason fail to
maintain such a list, the Trustee, in its sole discretion, may designate a
current list of Securities for such purposes. The net proceeds of any sales of
Securities from such list shall be credited to the Principal Account of the
Trust and paid therefrom, to the extent necessary in accordance with this
Section and otherwise distributed pursuant to this Indenture. The Trustee shall
not be liable or responsible in any way for depreciation or loss incurred by
reason of any sale or sales made in accordance with this Section 5.02.
The portion of the Redemption Distribution which represents
the Unit Holder's interest in the Income Account shall be withdrawn from the
Income Account to the extent available. The balance paid on any redemption,
including dividends receivable on stocks trading ex dividend, if any, shall be
withdrawn from the Principal Account to the extent that funds are available for
such purpose. If such available balance shall be insufficient, the Trustee
shall advance funds sufficient to pay such amount to the Unit Holder and shall
be entitled to reimbursement of such advance upon the deposit of additional
monies in the Income Account or Principal Account, whichever happens first.
Should any amounts so advanced with respect to declared but unreceived
dividends prove uncollectible because of default in payment of such dividends,
the Trustee shall have the right immediately to liquidate Securities in amount
sufficient to reimburse itself for such advances, without interest. In the
event that funds are withdrawn from the Principal Account for payment of any
portion of the Redemption Distribution representing dividends receivable on
stocks trading ex dividend, the Principal Account shall be reimbursed when
sufficient funds are next available in the Income Account for such funds so
applied.
Unit Holders requesting a cash distribution shall receive
such distribution in accordance with ss. 1.01(b) of the Distribution Agency
Agreement.
The Trustee may in its discretion, and shall when so directed
by the Depositor, suspend the right of redemption or postpone the date of
payment of the Redemption Distribution for more than seven calendar days
following the day on which tender for redemption is made (1) for any period
during which the New York Stock Exchange is closed other than customary weekend
and holiday closings or during which trading on the New York Stock Exchange is
restricted; (2) for any period during which an emergency exists as a result of
which disposal by the Trust of the Securities is not reasonably practicable or
it is not reasonably practicable fairly to determine in accordance herewith the
value of the Securities; or (3) for such other period as the Securities and
Exchange Commission may by order permit. The Trustee shall not be liable to any
person or in any way for any loss or damage which may result from any such
suspension or postponement.
Not later than the close of business on the day any Unit is
tendered for redemption by a Unit Holder other than the Depositor, the Trustee
shall notify the Depositor of such tender. The Depositor shall have the right
to purchase such Unit by notifying the Trustee of its election to make such
purchase no later than the close of business on the Tender Day. Such purchase
shall be made by payment for such Unit by the Depositor to the Unit Holder not
later than the close of business on the Redemption Date of an amount not less
than the Redemption Distribution which would otherwise be payable by the
Trustee to such Unit Holder.
Any Unit so purchased by the Depositor may at the option of
the Depositor be tendered to the Trustee for redemption at the corporate trust
office of the Trustee in the manner provided in the first paragraph of this
Section 5.02.
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The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any sale or redemption of Securities
made pursuant to this Section 5.02.
Section 5.03. Redemption Upon Termination: Should the
Trust terminate on the Termination Date specified in the Reference Trust
Agreement (the "Termination Date"), Securities will be distributed to the
Distribution Agent as agent for the Unit Holders as provided in Section
9.03(b)(i). A Unit Holder may notify the Distribution Agent in writing at
least 3 days prior to the Evaluation Time on the Termination Date as to whether
such Unit Holder desires: 1) to receive his pro rata share of the Securities
in-kind; 2) to receive the cash proceeds from the sale of his pro rata share of
underlying securities; or 3) to participate in the reinvestment program by
investing his interest in the Trust including the proceeds from the sale of his
pro rata share of underlying securities and one or more of the underlying
securities in units of a new trust. Unit Holders who do not notify the
Distribution Agent of their election will receive cash from the sale of their
pro rata share of underlying securities (Option 2). Unit Holders who elect
Options 2 or 3 will have their securities sold and distributed or invested
pursuant to Section 1.02(b) of the Distribution Agency Agreement.
A Unit Holder choosing in-kind distribution will receive such
distribution on the first business day following the Termination Date subject
to payment by such Unit Holder of any tax or governmental charges which may be
imposed thereon. This distribution shall consist of such Unit Holder's pro rata
portion of each of the Securities in whole shares based on the number of Units
owned as of the Termination Date plus the Unit Holder's pro rata share of the
balances in the Income and Principal Accounts distributed to the Distribution
Agent as provided in Section 9.03 hereof (herein called the "Termination
Distribution"). In addition, the Distribution Agent shall distribute no later
than the seventh calendar day after the Termination Date (or if such is not a
Business Day, then the first Business Day prior thereto), cash equal to the
value of any fractional shares included in such Unit Holder's pro rata portion
of the Securities as of the Termination Date.
The Depositor shall provide the Distribution Agent with a
list of Securities held in the Trust designated to be sold for the purpose of
satisfying amounts for the payment of cash equal to the value of fractional
shares; provided that if the Depositor shall for any reason fail to provide
such a list, the Distribution Agent, in its sole discretion, may designate a
list of Securities for such purposes. The excess proceeds of any sales of
Securities from such list shall be credited to the cash account to be
distributed pro rata at the time of the settlement of the last sale pursuant to
Section 1.02(b) of the Distribution Agency Agreement.
Notwithstanding the option to reinvest the proceeds in the
next National Equity Trust Low Five Portfolio Series to be offered after the
Termination Date (the "New Series"), the Depositor may, in its sole discretion
at any time, decide not to offer any Series of the Trust in the future. If the
Depositor so decides, the Depositor shall notify the Trustee of that decision,
and the Trustee shall notify Unit Holders before the Termination Date.
Moreover, the Trustee may in its discretion, and shall when so directed by the
Depositor in writing, postpone the Termination Date (1) for any period during
which the New York Stock Exchange is closed other than customary weekend and
holiday closings; (2) for any period during which (as determined by the
Securities and Exchange Commission by rule, regulation or order) (i) trading on
the New York Stock Exchange is restricted or (ii) an emergency exists as a
result of which disposal by the Trust of the Securities is not reasonably
practicable or it is not reasonably practicable fairly to determine in
accordance herewith the value of the Securities for the purposes of any Trust
Evaluation; or (3) for such other periods as the Securities and Exchange
Commission may by order permit.
Section 5.04. Transfer of Units: Units may be transferred
by the registered Unit Holder thereof by presentation of transfer instructions,
at the principal office of the Trustee accompanied by such documents executed
by the registered Unit Holder or his authorized attorney as the Trustee deems
necessary to evidence the authority of the person making such transfer. The
Trustee may deem and treat the person in whose name any Unit shall be
registered upon the books of the Trustee as the owner of such Unit for all
purposes hereunder and the Trustee shall not be affected by any notice to the
contrary. The transfer books maintained by the Trustee for the purposes of
this Section 5.04 shall be closed in connection with the termination of the
Trust pursuant to Section 9.03 hereof.
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A sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such transfer shall be paid
to the Trustee. A Unit Holder may be required to pay $2 (or such other amount
as may be specified by the Trustee and approved by the Depositor) on any such
transfer.
The Trustee may also adopt other reasonable rules and
regulations for the transfer, tender and redemption of Units.
ARTICLE VI
TRUSTEE
Section 6.01. General Definition of Trustee's
Liabilities, Rights and Duties: In addition to and notwithstanding the other
duties, rights, privileges and liabilities of the Trustee as otherwise set
forth, the liabilities of the Trustee are further defined as follows:
(a) all monies deposited with or received by the Trustee
hereunder shall be held by it without interest in trust as part of the
Trust until required to be disbursed in accordance with the provisions
of this Indenture and such monies will be segregated by separate
recordation on the trust ledger of the Trustee so long as such
practice preserves a valid preference under applicable law, or if such
preference is not so preserved the Trustee shall handle such monies in
such other manner as shall constitute the segregation and holding
thereof in trust within the meaning of the Investment Company Act of
1940, as part of the Trustee's compensation the Trustee may benefit
from reasonable cash balances in the Income Account and the Principal
Account as provided in Section 6.04;
(b) the Trustee shall be under no liability for any action
taken in good faith on any appraisal, paper, order, list, demand,
request, consent, affidavit, notice, opinion, direction, evaluation,
endorsement, assignment, resolution, draft or other document whether or
not of the same kind prima facie properly executed, or for the
disposition of monies, Securities or Units pursuant to this Indenture,
or in respect of any evaluation which it is required to make or is
required or permitted to have made by others under this Indenture or
otherwise, except by reason of its own wilful misfeasance, bad faith or
negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties hereunder. The parties
hereto may construe any of the provisions of this Indenture, insofar as
the same may appear to be ambiguous or inconsistent with any other
provisions hereof which construction shall be binding upon the Unit
Holders and the parties hereto. The Trustee shall be under no liability
for any construction of any such provisions hereof;
(c) the Trustee shall not be responsible for or in respect of
the recitals herein, the validity or sufficiency of this Indenture or
for the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any
Securities, and the Trustee shall in no event assume or incur any
liability, duty or obligation to any Unit Holder or the Depositor other
than as expressly provided for herein. The Trustee shall not be
responsible for or in respect of the validity of any signatures by or
on behalf of the Depositor;
(d) the Trustee shall be under no obligation to appear in,
prosecute or defend any action which in its opinion may involve it in
expense or liability, unless as often as required by the Trustee, it
shall be furnished with reasonable security and indemnity against such
expense or liability, and any pecuniary cost to the Trustee from such
action shall be deductible from and a charge against the Income and
Principal Accounts of the Trust. Subject to the foregoing, the Trustee
shall in its discretion undertake such action as it may deem necessary
at any and all times to protect the Trust and the rights and interest
of the Unit Holders pursuant to the terms of this Indenture, provided,
however, that the expenses and costs of such actions, undertakings or
proceedings shall be reimbursable to the Trustee from the Income and
Principal Accounts, and the payment of such costs and expenses shall be
secured by a lien on the Trust prior to the interests of the Unit
Holders;
(e) the Trustee may employ agents, attorneys, accountants and
auditors and shall not be answerable for the default or misconduct of
any such agents, attorneys, accountants or auditors if such agents,
attorneys, accountants or auditors shall have
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been selected with reasonable care; provided, however, that if the
Trustee chooses to employ the Depository Trust Company in connection
with the storage and handling of, and the furnishing of administrative
services in connection with the Securities, the Trustee will be
answerable for any default or misconduct of the Depository Trust
Company and its employees and agents as fully and to the same extent as
if such default or misconduct had been committed or occasioned by the
Trustee. 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 its counsel. The accounts of the
Trust shall be audited not less frequently than annually by independent
certified public accountants designated from time to time by the
Depositor, and the reports of such accountants shall be furnished by
the Trustee to Unit Holders upon request. The fees and expenses charged
by such agents, attorneys, accountants or auditors shall constitute an
expense of the Trust reimbursable from the Interest and Principal
Accounts as set forth in Section 6.04 hereof;
(f) if the Depositor shall resign pursuant to Section 8.04
hereof or shall fail to undertake or perform any of the duties which by
the terms of this Indenture are required by it to be undertaken or
performed or if the Depositor shall be dissolved or become incapable of
acting or shall be adjudged a bankrupt or insolvent, or a receiver of
the property of the Depositor shall be appointed or any public officer
shall take charge or control of the Depositor or its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then in any such case, the Trustee may: (1) appoint a successor
depositor meeting the qualifications set forth in Section 8.03 who
shall act hereunder in all respects in place of the Depositor which
successor shall be satisfactory to the Trustee, and which may be
compensated at rates deemed by the Trustee to be reasonable under the
circumstances, by deduction from the Income Account of the Trust or, to
the extent funds are not available in such Account, from the Principal
Account of the Trust but no such deduction shall be made exceeding such
reasonable amount as the Securities and Exchange Commission may
prescribe in accordance with Section 26(a)(2)(C) of the Investment
Company Act of 1940, or (2) terminate this Indenture and the trust
created hereby and liquidate the Trust in the manner provided in
Section 9.03 or (3) act as Depositor itself without terminating the
Trust;
(g) if the value of the Trust as shown by any Trust Evaluation
shall be less than 40% of the value of the Securities in the Trust
determined as of the date on which the most recent deposit of
Securities occurred, the Trustee may in its discretion, and shall if so
directed by the Depositor, terminate this Indenture and the trust
created hereby and liquidate the Trust all in the manner provided in
Section 9.03;
(h) the Trustee is authorized and empowered, at the request
and direction of the Depositor, to execute and file on behalf of the
Trust any and all documents, in connection with consents to service of
process, required to be filed under the securities laws of the various
States in order to permit the sale of Units of the Trust in such States
by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or
other governmental charges imposed upon or in respect of the Securities
or upon the dividends thereon or upon it as Trustee hereunder or upon
or in respect of the Trust which it may be required to pay under any
present or future law of the United States of America or of any other
taxing authority having jurisdiction in the premises. For all such
taxes and charges and for any expenses, including counsel fees, which
the Trustee may sustain or incur with respect to such taxes or charges,
the Trustee shall be reimbursed and indemnified out of the Reserve
Account and/or the Income and Principal Accounts of the Trust, and the
payment of such amounts so paid by the Trustee shall be secured by a
lien on the Trust prior to the interests of the Unit Holders.
The Depositor shall, upon request by the Trustee, provide the
Trustee with a current list of Securities designated to be sold for the
purpose of payment of expenses hereunder, provided that if the
Depositor shall for any reason fail to provide such a list, the
Trustee, in its sole discretion, may designate a current list of
Securities for such purposes. The net proceeds of any such sales of
Securities from such list representing principal shall be credited to
the Principal Account.
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(j) the trustee except by reason of its own
negligence, bad faith or wilful misconduct shall not be liable for any
action taken, omitted or suffered to be taken by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(k) so long as shall be required by Section
26(a)(2)(C) of the Investment Company Act of 1940, no payment to the
Depositor or to any principal underwriter (as defined in such Act) for
the Trust or to any affiliated person (as so defined) or agent of the
Depositor or such underwriter shall be allowed the Trustee as an
expense except for payment not in excess of such reasonable amounts as
compensation for performing bookkeeping and other administrative
services of a character normally performed by the Trustee itself;
(l) the Trustee in its individual or any other
capacity may become an owner or pledgee of, or be an underwriter or
dealer in respect of, common stock and other securities issued by the
same issuer (or an affiliate of such issuer) of any of the Securities
at any time held as part of the Trust and may deal with such common
stock or other securities in any manner with the same rights and powers
as if it were not the Trustee hereunder; and
(m) the Trust may include a letter or letters of
credit for the purchase of Securities or Contract Securities issued by
the Trustee in its individual capacity for the account of the Depositor
and the Trustee may otherwise deal with the Depositor and the Trust
with the same rights and powers as if it were not the Trustee
hereunder.
Section 6.02. Books, Records and Reports: The Trustee
shall keep proper books of record and account of all the transactions under
this Indenture and keep a register described in Section 2.06 at its corporate
trust office, and such books, records and register shall be open to inspection
by any Unit Holder at all reasonable times during the usual business hours.
The Trustee shall make such annual or other reports as may
from time to time be required under any applicable state or federal statute or
rule or regulation thereunder and the Trustee shall, upon the request of a Unit
Holder, provide such Unit Holder and such Unit Holder's designated
representative with the cost basis of the Securities backing the Unit Holder's
Units and a calculation of the gain or loss on such Securities in the case of
Unit Holders of record on the Termination Date.
Section 6.03. Indenture and List of Securities on File:
The Trustee shall keep a certified copy or duplicate original of this Indenture
(including the Reference Trust Agreement) on file at its corporate trust office
available for inspection at all reasonable times during the usual business
hours by any Unit Holder, together with a current list of the Securities.
Section 6.04. Compensation of Trustee: For services performed
under this Indenture the Trustee shall be paid an annual fee in an amount set
forth in Part II of the Reference Trust Agreement. Such compensation shall be
payable quarterly in an amount equal to one-fourth of the estimated annual
compensation of the Trustee and shall be computed on the basis of the greatest
amount of Units in the Trust at any time during the period with respect to
which such compensation is being computed. The Trustee may from time to time
adjust its compensation as set forth above; provided, however, that 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" or, if such Index is no longer
published, in a similar index as determined by the Trustee and Depositor.
Further provided, however, that the right of the Trustee to increase its fees
shall not be cumulative and, if not exercised by the Trustee for any calendar
year, shall be deemed waived for such calendar year. No exercise of its right
to such increase shall be effective unless made by the Trustee by means of
notification to the Depositor within 60 days following the publication of the
annual consumer price information referred to above. The consent or concurrence
of any Unit Holder shall not be required for any such adjustment or increase.
Such compensation shall be deemed to provide only for the usual normal and
proper functions undertaken as Trustee pursuant to this Indenture and, in
addition, the Trustee may charge, to the extent then lawful, the Income and
Principal Accounts of the Trust for any and all expenses including legal,
auditing and printing expenses of
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maintaining registration or qualification of the Units and/or the Trust under
Federal or state securities laws subsequent to initial registration so long as
the Depositor is maintaining a market for the Units and including the fees of
counsel which may be retained by the Trustee in connection with its activities
hereunder, and disbursements incurred hereunder and additional compensation for
any extraordinary services performed by the Trustee hereunder. In addition to
the foregoing compensation, as part of the Trustee's compensation for ordinary
services performed under this Indenture, the Trustee shall be entitled to the
benefits to the Trustee that may result from reasonable cash balances in the
Income Account and the Principal Account. The Trustee shall be indemnified and
held harmless against any loss or liability accruing to it without negligence,
bad faith or wilful misconduct on its part, arising out of or in connection with
the acceptance or administration of this Trust, including the costs and expenses
(including counsel fees) of defending itself against any claim of liability in
the premises and including any loss, liability or expense incurred in acting
pursuant to directions to the Trustee given by the Depositor from time to time
in accordance with the provisions of this Indenture or in undertaking actions
from time to time which the Trustee deems necessary in its discretion to protect
the Trust and the rights and interests of Unit Holders pursuant to the
provisions of this Indenture. If the cash balances in the Income and Principal
Accounts shall be insufficient to provide for amounts payable pursuant to this
Section 6.04 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 6.04. The Trustee shall promptly notify the Depositor of such action in
writing and shall set forth therein the Securities sold and the proceeds
received therefrom. The Trustee shall not be liable or responsible in any way
for depreciation or loss incurred by reason of any sale of Securities made
pursuant to this Section 6.04. Any monies payable to the Trustee pursuant to
this Section shall be secured by lien on the Trust prior to the interests of the
Unit Holders.
Section 6.05. Removal and Resignation of Trustee;
Successor: The following provisions shall provide for the removal and
resignation of the Trustee and the appointment of any successor trustee:
(a) the Trustee or any trustee or trustees hereafter appointed
may resign and be discharged of the trusts created by this Indenture,
by executing an instrument in writing resigning as Trustee of the Trust
and filing the same with the Depositor and mailing a copy of a notice
of resignation to all Unit Holders then of record, not less than sixty
days before the date specified in such instrument when, subject to
Section 6.05(e), such resignation is to take effect. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a
successor trustee as hereinafter provided, by written instrument, in
duplicate, one copy of which shall be delivered to the resigning
Trustee and one copy to the successor trustee. If at any time the
Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purposes of
rehabilitation, conservation or liquidation, or, if the Depositor 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 material adverse
effect, either singly or in the aggregate, on the Trust or on one or
more Trusts, such that the replacement of the Trustee is in the best
interests of the Unit Holders, then in any such case the Depositor 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; provided that
a notice of such removal and appointment of a successor trustee shall
be mailed by the Depositor to each Unit Holder then of record;
(b) any successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Depositor and to the retiring Trustee an
instrument accepting such appointment hereunder, and such successor
trustee without any further act, deed or conveyance shall become vested
with all the rights, powers, duties and obligations of its predecessor
hereunder with the like effect as if originally named Trustee herein
and shall be bound by all the terms and conditions of this Indenture.
Upon the request of such successor trustee, the retiring Trustee shall,
upon payment of any amounts due the retiring Trustee, or provision
therefor to the satisfaction of such retiring Trustee, execute and
deliver an instrument acknowledged by it transferring
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to such successor trustee all the rights and powers of the retiring
Trustee; and the retiring Trustee shall transfer, deliver and pay over
to the successor trustee all Securities and monies at the time held by
it hereunder, together with all necessary instruments of transfer and
assignment or other documents properly executed necessary to effect
such transfer and such of the records or copies thereof maintained by
the retiring Trustee in the administration hereof as may be requested
by the successor trustee, and shall thereupon be discharged from all
duties and responsibilities under this Indenture. The retiring Trustee
shall, nevertheless, retain a lien upon all Securities and monies at
the time held by it hereunder to secure any amounts then due the
retiring Trustee;
(c) in case at any time the Trustee shall resign and no
successor trustee shall have been appointed or, if appointed, shall not
have accepted appointment within thirty days after notice of
resignation has been received by the Depositor, the retiring Trustee
may forthwith apply to a court of competent jurisdiction for the
appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee;
(d) any corporation into which any Trustee hereunder may be
merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which any Trustee
hereunder shall be a party, or any corporation succeeding to all or
substantially all of the business of the Trustee shall be the successor
trustee under this Indenture without the execution or filing of any
paper, instrument or further act to be done on the part of the parties
hereto; anything herein or in any agreement relating to such merger or
consolidation, by which any such trustee may seek to retain certain
powers, rights and privileges theretofore obtaining for any period of
time following such merger or consolidation, to the contrary
notwithstanding; and
(e) any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to this Section shall become effective
only upon acceptance of appointment by the successor trustee as
provided in subsection (b) hereof.
Section 6.06. Qualification of Trustee: The Trustee shall
be a corporation organized and doing business under the laws of the United
States or any state thereof which is authorized under such laws to exercise
corporate trust powers and having at all times an aggregate capital, surplus,
and undivided profits of not less than $5,O0O,000.
Section 6.07. Trustee's Response to Inquiries: The
Trustee shall deliver to the Depositor a copy of any written response to any
non-routine question or request at least one day before sending the response.
Section 6.08. Waiver of Liens: No lien, encumbrance or
priority in favor of the Trustee against the assets of the Trust will affect
such assets or their proceeds after such assets or proceeds have been
distributed or paid to Unit Holders or to the Distribution Agent on their
behalf pursuant to the terms of the Indenture and upon any such distribution
any lien, encumbrance or priority previously attaching to such assets or their
proceeds shall without any further action on the part of the Trustee be
automatically thereupon released and relinquished by the Trustee.
ARTICLE VII
RIGHTS OF UNIT HOLDERS
Section 7.01. Beneficiaries of Trust: By the purchase and
acceptance or other lawful delivery and acceptance of a Unit of the Trust the
Unit Holder shall be deemed to be a beneficiary of such Trust and vested with
all rights, title and interest in the Trust to the extent of the Unit or Units
owned, subject to the terms and conditions of this Indenture.
Section 7.02. Rights, Terms and Conditions: In addition
to the other rights and powers set forth in the other provisions and conditions
of this Indenture the Unit Holders shall have the following rights and powers
and shall be subject to the following terms and conditions:
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(a) a Unit Holder may at any time on any Business Day
redeem his Units in accordance with Section 5.02;
(b) the death or incapacity of any Unit Holder shall not
operate to terminate this Indenture or the Trust, nor entitle his legal
representatives or heirs to claim an accounting or to take any action
or proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them. Each Unit Holder expressly waives any
right he may have under any rule of law, or the provisions of any
statute, or otherwise, to require the Trustee at any time to account,
in any manner other than as expressly provided in this Indenture, in
respect of the Securities or monies from time to time received, held
and applied by the Trustee hereunder; and
(c) no Unit Holder shall have any right to vote or in any
manner otherwise control the operation and management of the Trust, or
the obligations of the parties hereto, nor shall anything herein set
forth be construed so as to constitute the Unit Holders from time to
time as partners or members of any association; nor shall any Unit
Holder ever be under any liability to any third persons by reason of
any action taken by the parties to this Indenture, or any other cause
whatsoever.
ARTICLE VIII
DEPOSITOR
Section 8.01. Liabilities; Power of Attorney: The
Depositor, or the Depositors if there be more than one, shall be severally
liable in accordance herewith for the obligations imposed upon and undertaken
by the Depositor hereunder, provided, however, that, without in any way
affecting or diminishing such several liability, each Depositor of the Trust
shall indemnify the other Depositors thereof and hold such other Depositors
harmless from and against any and all costs, expenses and liabilities
(including attorneys' fees) which such other Depositors may suffer or incur as
a result of or by reason of any act or failure to act hereunder on the part of
the indemnifying Depositor. At all times prior to the termination of the Trust
and while the Depositors thereof shall continue to act jointly hereunder, there
shall be maintained on file with the Trustee a power of attorney executed in
favor of one Depositor by the other Depositors constituting and appointing the
non-executing Depositor the true and lawful agent and attorney-in-fact of the
executing Depositors to execute and deliver for and on behalf of the executing
Depositors any and all notices, opinions, certificates, lists, demands,
directions, instruments, or other documents provided or permitted to be
executed or delivered by the Depositors hereunder in connection with the Trust
or to take any other action in respect hereof. Such power of attorney shall
continue in effect as to the executing Depositors until written notice of
revocation thereof has been given by such executing Depositors to the Trustee.
Prior to receipt of such notice of revocation the Trustee shall be entitled to
rely conclusively upon such power of attorney as authorizing the non-executing
Depositor to give any notice, opinion, certificate, list, demand, direction,
instrument or other document provided for or permitted hereunder or to take any
other action in respect hereof on behalf of the executing Depositors as to
which such power of attorney is in effect.
Section 8.02. Discharge: If there be more than one
Depositor, the following provisions shall provide for the discharge of a
Depositor and the liability of the Depositors in the event of the discharge of
a Depositor:
(a) in the event that any Depositor shall fail to undertake or
perform any of the duties which by the terms of this Agreement are
required by it to be undertaken or performed and such failure shall
continue for 30 days after notice to the Depositors from the Trustee or
if any Depositor shall become incapable of acting or shall have an
order of relief entered with respect to it, or a receiver of the
property of any Depositor shall be appointed or any public officer
shall take charge or control of any Depositor or its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then such Depositor shall forthwith be and shall be deemed to be
discharged forever as a Depositor hereunder and thereupon the remaining
Depositors shall act hereunder without the necessity of any other or
further action on its part or on the part of the Trustee;
(b) in the event that the power of attorney referred to in
Section 8.01 shall be revoked by written notice given by an executing
Depositor and it shall not be
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replaced within one business day by another power of attorney
conforming with the requirements of said Section 8.01, the Depositors
of the Trust shall be deemed to have been unable to reach agreement
with respect to action to be taken jointly by them hereunder in
connection with the Trust and thereupon the Depositor which has revoked
the power of attorney executed by it shall be discharged hereunder upon
the expiration of such one-day period and thereupon the other
Depositors shall act thereunder without the necessity of any other or
further action on their part or on the part of the Trustee; and
(c) notwithstanding the discharge of a Depositor of the Trust
in accordance with this Section 8.02, such Depositor shall continue to
be fully liable in accordance with the provisions hereof in respect of
action taken or refrained from under this Agreement by the Depositors
before the date of such discharge or by the undischarged Depositors
before or after the date of such discharge, as fully and to the same
extent as if no discharge has occurred.
Section 8.03. Successors: The covenants, provisions and
agreements herein contained shall in every case be binding upon any successor
or successors to any Depositor and shall be binding upon the General Partners
of any Depositor which may be a partnership and upon the capital interest of
the limited partners of any Depositor which may be a partnership. In the event
of the death, resignation or withdrawal of any partner of any Depositor which
may be a partnership, the partner so dying, resigning or withdrawing shall be
relieved of all further liability hereunder if at the time of such death,
resignation or withdrawal such Depositor maintains a net worth (determined in
accordance with generally accepted accounting principles) of at least
$1,000,000. In the event of an assignment by any Depositor to a successor
corporation or partnership as permitted by the next following sentence, such
Depositor and, if such Depositor is a partnership, its partners shall be
relieved of all further liability under this Indenture. Any Depositor may
transfer all or substantially all of its assets to a corporation or partnership
which carries on the business of such Depositor, if at the time of such
transfer such successor duly assumes all the obligations of such Depositor
under this Indenture.
Section 8.04. Resignation: If at any time any Depositor
of the Trust shall desire to resign its position as such a Depositor hereunder
and if at such time the other Depositors of the Trust each maintains a net
worth (determined in accordance with generally accepted accounting principles)
of at least $1,000,000 and is agreeable to such resignation, the Depositor
desiring to resign may resign by delivering to the Trustee an instrument
executed by such resigning Depositor and consented to by the remaining
Depositors and upon such delivery, the resigning Depositor shall be discharged
and shall no longer be liable in any manner hereunder except as to acts or
omissions occurring prior to such delivery and the remaining Depositors shall
thereupon perform all duties and be entitled to all rights under the Agreement;
provided, however, that concurrently with or subsequent to such resignation the
remaining Depositors and the Trustee may appoint a new Depositor to act with
the remaining Depositors and to assume the duties of the resigning Depositor by
an instrument executed by the remaining Depositors, the Trustee and the new
Depositor or proceed as provided in Section 6.01(f). Such new Depositor shall
not be under any liability hereunder for occurrences or omissions prior to the
effective time of execution of such instrument.
Section 8.05. Additional Depositors: The Depositor may at
any time appoint one or more corporations or partnerships to act as new
Depositor, in addition to those currently serving, by an instrument executed by
such Depositor, the Trustee, and such corporations or partnerships; provided,
however, that at the time of such execution each new Depositor maintains a net
worth (determined in accordance with generally accepted accounting principles)
of at least $1,000,000. Upon such execution, a new Depositor shall be deemed
to be a depositor for all purposes under this Indenture, and the covenants,
provisions and agreements herein contained shall in every case be binding upon
such new Depositor and shall be binding upon the General Partner of any such
new Depositor which may be a partnership and upon the capital interest of the
limited partners of any such new Depositor which may be a partnership, but such
new Depositor shall not be liable hereunder for occurrences or omissions prior
to the effective time of execution of such instrument.
Section 8.06. Exclusions from Liability: The following
provisions provide for certain exclusions from the liability of the Depositor:
(a) no Depositor shall be under any liability to any other
Depositor, the Trust or the Unit Holders thereof, for any action taken
or for refraining from the
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taking of any action in good faith pursuant to this Agreement, or for
errors in judgment or liable or responsible in any way for depreciation
or loss incurred by reason of the acquisition or sale of any
Securities; provided, however, that this provision shall not protect
the Depositor against any liability to which it would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence
in the performance of its duties or by reason of its reckless disregard
of its obligations and duties hereunder. The Depositor may rely in good
faith on any paper, order, notice, list, affidavit, receipt,
evaluation, opinion, endorsement, assignment, draft or any other
document of any kind prima facie properly executed and submitted to
them, or any of them, by any other Depositor, the Trustee, counsel to
an issuer of a Security, or any other person. The Depositor shall in no
event be deemed to have assumed or incurred any liability, duty, or
obligation to any Unit Holder or the Trustee other than as expressly
provided for herein;
(b) the Depositor shall not be under any obligation to appear
in, prosecute or defend any legal action which in its opinion may
involve it in any expense or liability; provided, however, that the
Depositor may in its discretion undertake any such action which it may
deem necessary or desirable in respect of this Indenture and the rights
and duties of the parties hereto and the interests of the Unit Holders
hereunder; and
(c) none of the provisions of this Indenture shall be deemed
to protect or purport to protect the Depositor against any liability to
the Trust or to the Unit Holders thereof or to each other (if there is
more than one Depositor) to which the Depositor would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence
in the performance of the duties of the Depositor, or by reason of the
Depositor's reckless disregard of the obligations and duties of the
Depositor under this Indenture.
Section 8.07. Compensation: The Depositor shall receive
at the times set forth in Section 3.05 as compensation for performing portfolio
supervisory services, such amounts, and for such periods, as are specified in
the Reference Trust Agreement. The computation of such compensation shall be
made on the basis of the greatest number of Units in the Trust at any time
during which such compensation is being computed. At no time, however, will the
total amount received by the Depositor for services rendered to all series of
the National Equity Trust in any calendar year exceed the aggregate cost to it
of supplying such services in such year except to the extent permitted by law.
Such rate may be increased from time to time, without the consent or approval
of any Unit Holder or the Trustee, by amounts not exceeding the proportionate
increase during the period from the date of such Reference Trust Agreement to
the date of any such increase, in consumer prices as published either under the
classification "All Services Less Rent" in the Consumer Price Index published
by the United States Department of Labor or, if such Index is no longer
published, a similar index.
ARTICLE IX
ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS
Section 9.01. Amendments without the Consent of Unit
Holders: This Indenture may be amended from time to time by the parties hereto
or their respective successors, without the consent of any of the Unit Holders
(a) to cure any ambiguity or to correct or supplement any provisions contained
herein which may be defective or inconsistent with any other provisions
contained herein; (b) to change any provision hereof as may be required by the
Securities and Exchange Commission or any successor governmental agency
exercising similar authority; or (c) to make such other provision in regard to
matters or questions arising hereunder as shall not adversely affect the
interest of the Unit Holders; provided, that the Indenture may also be amended
from time to time by the parties hereto (or the performance of any of the
provisions of this Indenture may be waived) with the consent of Unit Holders
evidencing 51% of the Units at the time outstanding under the Indenture for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Unit Holders; provided, further, however, that this Indenture
(including any Reference Trust Agreement) may not be amended (nor may any
provision thereof be waived) so as to (1) increase the number of Units issuable
in respect of the Trust above the aggregate number specified in Part II of the
Reference Trust Agreement or such lesser amount as may be outstanding at any
time during the term of this Indenture, except as the result of the deposit of
Additional Securities, as herein provided, or as otherwise
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provided herein, or reduce the relative interest in the Trust of any Unit Holder
without his consent, (2) permit the deposit or acquisition hereunder of
securities or other property either in addition to or in substitution for any of
the Securities except in the manner permitted by the Trust Indenture as in
effect on the date of the first deposit of Securities under a particular
Indenture or permit the Trustee to engage in business or investment activities
not specifically authorized in this Indenture as originally executed or (3)
adversely affect the characterization of the Trust as a grantor trust for
federal income tax purposes.
Section 9.02. Notice of Amendment: Promptly after the
execution of any amendment the Trustee shall furnish written notification of
the substance of such amendment to all Unit Holders then of record at their
addresses appearing on the registration books of the Trustee.
Section 9.03. Termination: This Indenture and the Trust
created hereby shall terminate upon the redemption, sale or other disposition,
as the case may be, of the last Security held in the Trust hereunder unless
sooner terminated as hereinbefore specified and may be terminated at any time
by the written consent of the Holders of Fifty One percent of the Units of the
Trust then outstanding; provided, that in no event shall this Trust continue
beyond the Termination Date as set forth in Part II of the Reference Trust
Agreement. Written notice of any termination shall be given by the Trustee to
each Unit Holder of record at his address appearing on the registration books
of the Trustee.
(a) Within a reasonable period of time after
termination of the Trust the Trustee shall liquidate such Securities as it
shall deem necessary for payment of Trust expenses and shall:
(i) deduct from the Income Account of the Trust or,
to the extent that funds are not available in such account, from the
Principal Account of the Trust and pay to itself individually an amount
equal to the sum of (1) its accrued compensation for its ordinary
recurring services in connection with the Trust, (2) any compensation
due it for its extraordinary services and (3) any costs, expenses or
indemnities in connection with the Trust as provided herein;
(ii) deduct from the Income Account or, to the extent that funds are
not available in such Account, from the Principal Account and pay
accrued and unpaid fees to the Depositor pursuant to Section 3.05;
(iii) deduct from the Income Account of the Trust or, to the extent
that funds are not available in such Account, from the Principal
Account of the Trust, any amounts which may be required to be deposited
in the Reserve Account of the Trust to provide for payment of any
applicable taxes or other governmental charges and any other amounts
which may be required to meet expenses incurred under this Indenture in
connection with the Trust;
(b) (i) If the Trust shall terminate on the Termination Date provided
in the Reference Trust Agreement, the Trustee shall distribute the remaining
Securities in the Principal Account plus the cash balances in the Principal and
Income Accounts to the Distribution Agent for distribution in accordance with
the Distribution Agency Agreement.
(ii) If the Trust shall terminate on a date other
than the Termination Date, the Trustee shall fully liquidate the remaining
Securities in the Principal Account and shall distribute to each Unit Holder
such Unit Holder's pro rata interest in the balance of the Income Account and
Principal Account of the Trust.
The amounts to be so distributed to each Unit Holder shall be
that pro rata share of the balance of the total Income and Principal Accounts of
the Trust as shall be represented by the Units therein held by such Unit Holder.
(c) Together with such distribution to each Unit
Holder as provided for in (b) of this Section, the Trustee shall furnish to each
such Unit Holder a final distribution statement as of the date of computation of
the amount distributable to Unit Holders, setting forth the information in
substantially the form and manner provided for in Section 3.06 hereof, except
that, with respect to distribution made pursuant to such Paragraph b(i) of this
Section, such statement shall show the Securities delivered to the Distribution
Agent.
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(d) The Trustee shall distribute to each Unit
Holder any dividends, which on the Termination Date were declared, but not
received, net of any and all expenses not previously deducted, within a
reasonable time of their receipt.
The Trustee shall be under no liability with respect to monies
held by it in the Income, Reserve and Principal Accounts upon termination except
to hold the same in trust without interest until disposed of in accordance with
the terms of this Indenture.
Section 9.04. Construction: This Indenture is executed
and delivered in the State of New York and all laws or rules of construction of
such State shall govern the rights of the parties hereto and the Unit Holders
and the interpretation of the provisions hereof. Headings and titles herein
are for convenience only and should not influence such interpretation.
Section 9.05. Written Notice: Any notice, demand,
direction or instruction to be given to the Depositor hereunder shall be in
writing and shall be duly given if mailed or delivered to the Depositor c/o
Prudential Securities Incorporated at One Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 or at such other address as shall be specified by the Depositor to the
other parties hereto in writing. Any notice to be given to the Unit Holders
shall be duly given if mailed or delivered to each Unit Holder at the address
of such holder appearing on the registration books of the Trustee. Any notice,
demand, direction or instruction to be given to the Trustee hereunder shall be
in writing and shall be given if mailed or delivered to the Trustee at its
office at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, or such other address as
shall reasonably be specified by the Trustee in writing to the other parties
hereto.
Section 9.06. Severability: If any one or more of the
covenants, agreements, provisions or terms of this Indenture shall be held
contrary to any express provision of law or contrary to policy of express law,
though not expressly prohibited, or against public policy, or shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Indenture and shall in no way affect the validity
or enforceability of the other provisions of this Indenture or the rights of
the holders thereof.
Section 9.07. Dissolution of Depositor Not To Terminate:
The dissolution of one or all of the Depositors (if more than one) from or for
any cause whatsoever shall not operate to terminate this Indenture insofar as
the duties and obligations of the Trustee are concerned.
Section 9.08. Name: Depositor reserves the right to use
the name "National Equity Trust," with a distinguishing series number or name,
without the consent of the Trustee.
IN WITNESS WHEREOF, Prudential Securities Incorporated has
caused this Trust Indenture and Agreement to be executed by one of its
authorized officers and its corporate seal to be hereto affixed and attested by
its Secretary or Assistant Secretary and United States Trust Company of New
York has caused this Trust Indenture and Agreement to be executed by one of its
Vice Presidents or Assistant Vice Presidents and its corporate seal to be
hereto affixed and attested by one of its Assistant Secretaries all as of the
day, month and year first above written.
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PRUDENTIAL SECURITIES INCORPORATED,
Depositor
By: /s/Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Senior Vice President
Manager - Unit Investment Trust Department
(SEAL)
ATTEST:
By: /s/ Xxxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx
Assistant Xxxxxxxxx
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XXXXXX XXXXXX TRUST COMPANY OF NEW YORK,
TRUSTEE
By: /s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
Assistant Vice President
(SEAL)
ATTEST:
By: /s/ Xxxxx Xxxxx
---------------
Xxxxx Xxxxx
Assistant Secretary
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
I,Ada Xxxx Xxxx, a Notary Public in and for the said County in
the State aforesaid, do hereby certify that Xxxx Xxxxxxxxx and Xxxxx Xxxxx
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument and personally known to me to be an Assistant Vice
President and Assistant Secretary, respectively, of United States Trust Company
of New York, a corporation, appeared before me this day in person, and
acknowledged that they signed, sealed with the corporate seal of United States
Trust Company of New York, and delivered the said instrument as their free and
voluntary act as such Assistant Vice President and Assistant Secretary,
respectively, and as the free and voluntary act of said United States Trust
Company for the uses and purposes therein set forth.
GIVEN, under my hand and notarial seal this 21st day of April,
1995.
/s/Ada Xxxx Xxxx
Ada Xxxx Xxxx
Notary Public
(SEAL)
