GLICKENHAUS
SPECIAL SITUATIONS TRUST,
SERIES 1
(and Subsequent Series)
===============================================================================
TRUST INDENTURE AND AGREEMENT
Among
GLICKENHAUS & CO.
as Depositor
THE BANK OF NEW YORK
as Trustee
and
XXXXXX DATA CORPORATION
as Evaluator
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Dated: October 28, 1996
406909.1
TRUST INDENTURE AND AGREEMENT
GLICKENHAUS
SPECIAL SITUATIONS TRUST,
SERIES 1
(and Subsequent Series)
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS, CERTIFICATE
SECTION 1.1. Definitions.................................................. 2
SECTION 1.2. Form of Certificate.......................................... 5
ARTICLE II DEPOSIT OF BONDS, ACCEPTANCE OF TRUST, FORM AND
ISSUANCE OF CERTIFICATES, INSURANCE
SECTION 2.1. Deposit of Bonds............................................. 14
SECTION 2.2. Acceptance of Trust.......................................... 14
SECTION 2.3. Issue of Certificates........................................ 14
SECTION 2.4. Form of Certificates......................................... 14
SECTION 2.5. Bond Insurance............................................... 15
ARTICLE III ADMINISTRATION OF FUND
SECTION 3.1. Initial Cost................................................. 16
SECTION 3.2. Interest Account............................................. 17
SECTION 3.3. Principal Account............................................ 17
SECTION 3.4. Reserve Account.............................................. 18
SECTION 3.5. Distribution................................................. 18
SECTION 3.6. Distribution Statements...................................... 22
SECTION 3.7. Sale of Bonds................................................ 24
SECTION 3.8. Refunding Bonds.............................................. 26
SECTION 3.9. Bond Counsel................................................. 26
SECTION 3.10. Notice and Sale by Trustee................................... 26
SECTION 3.11. Trustee not to Amortize...................................... 26
SECTION 3.12. Liability of Depositor....................................... 27
SECTION 3.13. Notice to Depositor.......................................... 27
SECTION 3.14. Limited Replacement of Special Bonds......................... 27
ARTICLE IV EVALUATION OF BONDS; EVALUATOR
SECTION 4.1. Evaluation by Evaluator...................................... 29
SECTION 4.2. Tax Reports.................................................. 30
SECTION 4.3. Evaluator's Compensation..................................... 30
SECTION 4.4. Liability of Evaluator....................................... 30
SECTION 4.5. Successor Evaluator.......................................... 30
(i)
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Page
ARTICLE V TRUST FUND EVALUATION, REDEMPTION, PURCHASE
TRANSFER, INTERCHANGE OR REPLACEMENT OF
CERTIFICATES
SECTION 5.1. Trust Fund Evaluation......................................... 32
SECTION 5.2. Redemption by Trustee; Purchases by Depositor................. 33
SECTION 5.3. Transfer or Interchange of Certificates....................... 35
SECTION 5.4. Certificates Mutilated, Destroyed, Stolen or Lost............. 35
ARTICLE VI TRUSTEE
SECTION 6.1. General Definition of Trustee's Liabilities,
Rights and Duties.................................... 36
SECTION 6.2. Books, Records and Reports.................................... 39
SECTION 6.3. Indenture and List of Bonds on File........................... 40
SECTION 6.4. Compensation.................................................. 40
SECTION 6.5. Removal and Resignation of Trustee;
Successor............................................ 41
SECTION 6.6. Qualifications of Trustee..................................... 43
ARTICLE VII RIGHTS OF CERTIFICATEHOLDERS
SECTION 7.1. Beneficiaries of Trust........................................ 43
SECTION 7.2. Rights, Terms and Conditions.................................. 43
ARTICLE VIII DEPOSITOR
SECTION 8.1. Discharge..................................................... 44
SECTION 8.2. Successors.................................................... 45
SECTION 8.3. Resignation................................................... 45
SECTION 8.4. Exclusions from Liability..................................... 45
SECTION 8.5. Annual Fee.................................................... 46
ARTICLE IX ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS
SECTION 9.1. Amendments.................................................... 47
SECTION 9.2. Termination................................................... 48
SECTION 9.3. Construction.................................................. 49
SECTION 9.4. Registration of Units and Trust Fund.......................... 50
SECTION 9.5. Written Notice................................................ 50
SECTION 9.6. Severability.................................................. 50
SECTION 9.7. Dissolution of Depositor not to Terminate..................... 50
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This "Table of Contents" does not constitute part of the
Indenture.
(ii)
406909.1
TRUST INDENTURE AND AGREEMENT DATED October 28, 1996
AMONG GLICKENHAUS & CO., as Depositor,
THE BANK OF NEW YORK, as Trustee,
and
XXXXXX DATA CORPORATION, as Evaluator
W I T N E S S E T H that:
WHEREAS, it is desired to expand the market for certain
obligations the interest income on which is exempt from Federal income tax
pursuant to the applicable provisions of the United States Internal Revenue
Code of 1986, as amended, or pursuant to other provisions of law, some of which
obligations, as individual issues or parts thereof, might be unavailable or
impracticable as investments to certain individual investors, and to provide
diversification to such investors, particularly those with limited investment
capital; and
WHEREAS, the Depositor desires to provide for the collection
and distribution of the principal of and interest on such obligations by the
Trustee to such persons as shall purchase an interest therein, as hereinafter
provided; and
WHEREAS, the Depositor, concurrently with the execution and
delivery hereof, is establishing Glickenhaus Special Situations Trust, Series
1, wherein certain interest bearing obligations will be deposited by the
Depositor, to be held by the Trustee in trust for the use and benefit of the
registered holders of certificates of ownership to be issued as hereinafter
provided. The parties hereto are entering into this Indenture for the purpose
of establishing certain of the terms, covenants and conditions of Glickenhaus
Special Situations Trust, Series 1 and of each additional series of such Trust
which may be established from time to time hereafter. For Glickenhaus Special
Situations Trust, Series 1 and each subsequent series of Glickenhaus Special
Situations Trust (as to which this Indenture is to be applicable) the parties
hereto shall execute a separate Reference Trust Agreement incorporating by
reference this Indenture and effecting any amendment, supplement or variation
from or to this Indenture with respect to the related series and specifying for
that series (i) the Bonds deposited in trust and the number of Units delivered
by the Trustee in exchange for the Bonds pursuant to Section 2.3; (ii) the
initial fractional undivided interest represented by each Unit; (iii) the First
Record Date; (iv) the First Distribution Date; (v) the First
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Settlement Date; (vi) the Evaluator's fee; (vii) the Trustee's fee and (viii)
any other change or addition contemplated or permitted by this Indenture.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the Depositor, the Trustee and the
Evaluator agree as follows:
ARTICLE I
DEFINITIONS, CERTIFICATE
SECTION 1.1. Definitions. Whenever used in this
Indenture, the following words and phrases, unless the context
clearly indicates otherwise, shall have the following meanings:
(1) "Bonds" shall mean such of the tax-exempt obligations,
including delivery statements, relating to "when-issued" and/or "regular way"
contracts, if any, for the purchase of certain bonds and receipts which will
entitle the Trustee to receive such tax-exempt bonds, and certified checks,
cash, or an irrevocable letter of credit or a combination thereof in the amount
required for such purchase, deposited in irrevocable trust and listed in
Schedule A, and any obligations received in exchange, substitution or
replacement for such obligations pursuant to Sections 3.8 and 3.14 hereof, as
may from time to time continue to be held as a part of the Trust Fund.
(2) "Business Day" shall mean any day other than a Saturday
or Sunday, or a legal holiday or a day on which banking institutions are
authorized by law to close in the City of New York, or a day on which the New
York Stock Exchange, Inc. is closed.
(3) "Certificate" shall mean any one of the certificates
substantially in the form hereinafter recited executed by the Trustee and the
Depositor evidencing ownership of a fractional undivided interest in the Trust
Fund.
(4) "Certificateholder" shall mean the registered holder of
any Certificate as recorded on the 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 Certificate and as
such shall be deemed a beneficiary of the trust created by this Indenture to
the extent of his pro rata share thereof.
(5) "Contract Bonds" shall mean Bonds which are to be
acquired by the Trust Fund pursuant to contracts, including (i) Bonds listed in
Schedule A and (ii) Bonds which the Depositor
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has contracted to purchase for the Trust Fund pursuant to Sec-
tion 3.14 hereof.
(6) "Date of Deposit" shall mean the date of the applicable
Reference Trust Agreement.
(7) "Depositor" shall mean Glickenhaus & Co. and its
successors in interest, or any successor depositor or depositors
as hereinafter provided for.
(8) "Evaluation Time" shall mean 4:00 P.M. New York
Time during the initial offering period and 2:00 P.M. New York
Time thereafter.
(9) "Evaluator" shall mean Xxxxxx Data Corporation or any
corporation into which such firm may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which such firm shall be a party, or any firm succeeding to all or
substantially all of the business of such firm as an evaluator of tax-exempt
bonds, or any successor evaluator as hereinafter provided for.
(10) "First Distribution Date" shall mean the date specified
in Part II of the applicable Reference Trust Agreement.
(11) "First Record Date" shall mean the date specified in
Part II of the applicable Reference Trust Agreement.
(12) "First Settlement Date" shall mean the date as specified
in Part II of the applicable Reference Trust Agreement.
(13) "Indenture" shall mean this Trust Indenture and
Agreement as originally executed or, if amended by an applicable Reference
Trust Agreement or as hereinafter provided, as so amended.
(14) "Insurance" shall mean the contract or contracts or
policy or policies of insurance obtained by the Depositor guaranteeing the
scheduled payment when due of the principal of and interest on the Bonds
(except Pre-Insured Bonds held pursuant and subject to this Indenture) held
pursuant and subject to this Indenture, together with the proceeds, if any,
thereof payable to or received by the Trustee for the benefit of the Trust and
the Certificateholders thereof and guaranteeing the stated payment of interest
and principal with respect to any such Bonds as long as they remain
outstanding.
(15) "Insurer" shall mean that bond insurance company from
which the Depositor, or in the case of Pre-Insured Bonds the issuer or parties
other than the Trust, has purchased Insurance or any corporation into which it
may be merged or with which it may be consolidated or any corporation resulting
from the merger
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or consolidation to which it shall be a party, or any corporation succeeding to
all or substantially all of its business, or any successor bond insurer
designated as such by operation of law.
(16) "Monthly Computation Date" shall mean the fifteenth day
of each month commencing with the first such day of the month after the First
Record Date.
(17) "Monthly Distribution Date" shall mean the first day of
each month following a Monthly Computation Date.
(18) "Permanent Insurance" shall mean the insurance obtained
from the Insurer by the Trustee on a Bond upon the sale of such Bond from the
Trust, as described in the Prospectus.
(19) "Pre-insured Bonds" shall mean Bonds which are insured
as long as they are outstanding under insurance policies obtained by the
issuers of such Bonds or by parties other than the Trust.
(20) "Prospectus" shall mean the prospectus included in the
registration statement, as amended, on Form S-6 under the Securities Act of
1933, as amended, relating to the Trust on file with the Securities and
Exchange Commission at the time such registration statement, as amended,
becomes effective, except that if the prospectus filed pursuant to Rule 497(b)
under the Securities Act of 1933, as amended, differs from the prospectus on
file at the time such registration statement, as amended, becomes effective,
the term Prospectus shall refer to the Rule 497(b) prospectus from and after
the time it is mailed or otherwise delivered to the Securities and Exchange
Commission for filing.
(21) "Reference Trust Agreement" shall mean that Reference
Trust Agreement executed by the parties hereto for a particular series of
Glickenhaus Special Situations Trust into which the terms of this Indenture are
incorporated.
(22) "Reserve Account" shall mean the account established
pursuant to Section 3.4 hereof.
(23) "Schedule A" shall mean the Schedule A to the applicable
Reference Trust Agreement for this or any future series of Glickenhaus Special
Situations Trust established
pursuant to this Indenture.
(24) "Semi-Annual Computation Date" shall mean the fifteenth
day of May and November commencing with the first such day after the First
Record Date.
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(25) "Semi-Annual Distribution Date" shall mean the first day
of June and December following a Semi-Annual Computation Date.
(26) "Trust Fund" shall mean the trust created by this
Indenture and the applicable Reference Trust Agreement, and which shall consist
of the Bonds held pursuant and subject to this Indenture together with all
undistributed interest received or accrued thereof, and any undistributed cash
realized from the sale, redemption, liquidation, or maturity thereof. Such
amounts as may be on deposit in the Reserve Account hereinafter established
shall be excluded from the Trust Fund.
(27) "Trustee" shall mean The Bank of New York or any
successor trustee as hereinafter provided for.
(28) "Unit" shall mean the fractional undivided interest in
and ownership of the Trust Fund set forth in Part II of the applicable
Reference Trust Agreement the denominator of which shall be decreased by the
number of any such Units redeemed as provided in section 5.2.
(29) Words importing singular number shall include the plural
number in each case and vice versa, and words importing person shall include
corporations and associations, as well as natural persons.
(30) 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.
SECTION 1.2. Form of Certificate. The form of
Certificate evidencing ownership of fractional undivided
interests in the Trust established hereunder shall be
substantially as follows:
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[FACE]
Plan of Distribution
No. _________________ _______Units
CERTIFICATE OF OWNERSHIP
--evidencing--
An Undivided Interest
in the
GLICKENHAUS SPECIAL SITUATIONS TRUST
CUSIP [ ]
This is to certify that _______________________ is the owner
and registered holder of this Certificate evidencing the ownership of the
number of units specified on the face hereof of undivided interest in the
GLICKENHAUS SPECIAL SITUATIONS TRUST of the series specified on the face hereof
(hereinafter called the "Fund") created by the Trust Indenture and Agreement
(hereinafter called the "Indenture") among Glickenhaus & Co. (hereinafter
called the "Depositor"), The Bank of New York (hereinafter called the
"Trustee") and Xxxxxx Data Corporation (hereinafter called the "Evaluator").
The Fund consists of (1) such of the tax-exempt obligations deposited in trust
and listed in Schedule A of the Indenture and any other obligations that may be
deposited in the Fund in exchange or substitution therefor by reason of
replacement of failed contracts or refunding of the obligations initially
deposited in accordance with the Indenture, as may from time to time continue
to be held as part of the Fund, (2) such cash amounts as from time to time may
be held in the Interest Account and the Principal Account maintained under the
Indenture in the manner described on the reverse side hereof and (3) units of
previously-issued Series of the Fund.
This Certificate shall not become valid or binding for any
purpose until properly executed by the Trustee under the Indenture.
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IN WITNESS WHEREOF, the Depositor has caused this Certificate
to be executed in facsimile by a General Partner thereof and The Bank of New
York, as Trustee, has caused this Certificate to be executed in its corporate
name by an authorized officer.
Date: ________________
GLICKENHAUS & CO., Depositor
By:
------------------------------------
General Partner
THE BANK OF NEW YORK, Trustee
By:
------------------------------------
Authorized Officer
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[REVERSE)
GLICKENHAUS SPECIAL SITUATIONS TRUST
At any given time this Certificate shall represent a
fractional undivided interest in the Fund, the numerator of which fraction
shall be the number of units set forth on the face hereof and the denominator
of which shall be the total number of units of fractional undivided interest
represented by all Certificates of the Fund which are outstanding at such time.
The Depositor hereby grants and conveys all of its right,
title and interest in and to the Fund to the extent of the fractional undivided
interest represented hereby to the registered holder of this Certificate
subject to and in pursuance of the Indenture, all the terms, conditions and
covenants of which are incorporated herein as if fully set forth at length.
The registered holder of this Certificate is entitled at any
time upon tender of this Certificate to the Trustee at its corporate trust
office in the City of New York, and upon payment of any tax or other
governmental charges, to receive, on the third business day following the day
on which such tender is made, an amount in cash equal to the evaluation of the
fractional undivided interest in the Fund evidenced by this Certificate, upon
the basis provided for in the Indenture. The right of redemption may be
suspended and the date of payment may be postponed for any period during which
the New York Stock Exchange, Inc. is closed or trading on that Exchange is
restricted, for any period during which an emergency exists so that disposal of
the obligations held in the Fund is not reasonably practicable or it is not
reasonably practicable to determine fairly the value of such obligations, or
for such other periods as the Securities and Exchange Commission may by order
permit.
Interest received by the Trustee as part of the Fund
(including interest accrued and unpaid prior to the day of deposit of any
obligation in the Fund and that part of the proceeds of the sale, liquidation,
redemption or maturity of or any insurance on any such obligation which
represents accrued interest) shall be credited by the Trustee to the Interest
Account. The fractional undivided interest represented by this Certificate in
the balance in the Interest Account (after the deductions referred to below)
shall be computed as of the First Settlement Date, as defined in the Indenture,
and paid to the Depositor on such date. The next computation shall be made as
of the First Record Date, as defined in the Indenture, and thereafter as of May
15 and November 15 of each year commencing with the first such day following
the First Record Date.
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All moneys (other than interest) received by the Trustee as
part of the Fund (including amounts received from the sale, liquidation,
redemption or maturity of or any insurance on any obligations held in the Fund)
shall be credited by the Trustee to a separate Principal Account. The
fractional undivided interest represented by this Certificate in the cash
balance in the Principal Account (after the deductions referred to below) shall
be computed as of the First Record Date and thereafter as of May 15 and
November 15 of each year commencing with the first such day following the First
Record Date. The second distribution of funds from the Interest Account shall
be made on the First Distribution Date as provided in the Indenture and,
thereafter, an amount in cash equal to the sum of said fractional undivided
interests in the Interest Account and Principal Account, computed as set forth
above, shall be distributed on the first day of June and December,
respectively, or within a reasonable period of time thereafter to the
registered holder of this Certificate at the close of business on the fifteenth
day of the month next preceding the date on which such distribution is made.
The Trustee shall not be required to make a distribution from the Principal
Account unless the cash balance on deposit therein available for such
distribution shall be sufficient to distribute at least $1.00 per unit.
Distributions from the Interest and Principal Accounts shall
be made by mail at the post office address of the holder hereof appearing in
the registration books of the Trustee.
From time to time deductions shall be made from the Interest
Account and Principal Account, as more fully set forth in the Indenture, for
redemptions, compensation of the Trustee and Evaluator, reimbursement of
certain expenses incurred by or on behalf of the Trustee, certain legal and
auditing expenses and payment of, or the establishment of a reserve for,
applicable taxes, if any.
Within a reasonable period of time after the end of each
calendar year the Trustee shall furnish to the registered holder of this
Certificate a statement setting forth, among other things, the amounts received
and deductions therefrom and the amounts distributed during the preceding year
in respect of interest on, and sales, redemptions or maturities of obligations
held in the Fund.
This Certificate shall be transferable by the registered
holder hereof by presentation and surrender hereof at the corporate trust
office of the Trustee properly endorsed and accompanied by a written instrument
or instruments of transfer in form satisfactory to the Trustee and executed by
the registered holder hereof or his authorized attorney. Certificates of the
Fund are interchangeable for one or more Certificates in an equal aggregate
number of units of undivided interest at the corporate
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trust office of the Trustee, in denominations of a single unit of undivided
interest or any multiple thereof.
The holder hereof may be required to pay a charge of $2.00
per Certificate issued in connection with the transfer or interchange of this
Certificate and any tax or other governmental charge that may be imposed in
connection with the transfer, interchange or other surrender of this
Certificate.
The holder of this Certificate, by virtue of the acceptance
hereof, assents to and shall be bound by the terms of the Indenture, a copy of
which is on file and available for inspection at the corporate trust office of
the Trustee, to which reference is made for all the terms, conditions and
covenants thereof.
The Trustee may deem and treat the person in whose name this
Certificate is registered upon the books of the Trustee as the owner hereof for
all purposes and the Trustee shall not be affected by any notice to the
contrary.
The Indenture, and the trust created thereby, shall terminate
upon the maturity, redemption, sale or other disposition of the last obligation
held thereunder, provided, however, that in no event shall the Indenture and
the trust continue beyond the end of the calendar year immediately preceding
the fiftieth anniversary of the date of the Indenture. The Indenture also
provides that the trust may be terminated at any time by the written consent of
one hundred percent of the Certificateholders and under certain circumstances
which include a decrease in the value of the Fund to less than $1,000,000 or
20% of the value of the Fund as of the date of deposit therein by the
Depositor, whichever is lower. Upon any termination the Trustee shall fully
liquidate the obligations then held, if any, and distribute pro rata the funds
then held in the trust upon surrender of the Certificates, all in the manner
provided in the Indenture. Upon termination, the Trustee shall be under no
further obligation with respect to the Fund except to hold the funds in trust
without interest until distribution as aforesaid and shall have no duty upon
any such termination to communicate with the holder hereof other than by mail
at the address of such holder appearing on the registration books of the
Trustee.
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STATEMENT REGARDING DISTRIBUTIONS
On the face of this Certificate it is indicated whether the
registered holder hereof has elected to receive distributions from the Interest
Account monthly or semi-annually.
The Certificate by its terms provides that distributions from
the Interest Account shall be computed as of the First Settlement Date and paid
to the Depositor on such date. The next computation shall be made as of the
First Record Date and an amount in cash equal to the share of the Interest
Account represented by this Certificate shall be distributed on the first day
of the month following the month in which the First Record Date occurs, or
within a reasonable period of time thereafter, to or upon the order of the
registered holder of this Certificate at the close of business on the First
Record Date. Thereafter distributions will be made as of the 15th day of May
and November of each year, commencing with the first such day following the
First Record Date and subsequent to the date of this Certificate, and an amount
in cash equal to the share of the Interest Account represented by this
Certificate will be distributed on the 1st day of June and December,
respectively, or within a reasonable period of time thereafter, to or upon the
order of the registered holder of this Certificate at the close of business on
the 15th day of the month next preceding the date on which the distribution is
made.
If the registered holder hereof has elected the monthly
option, then he agrees that, in lieu of the distributions provided by this
Certificate, the fractional undivided interest represented by this Certificate
in the balance of the Interest Account shall be computed monthly as indicated
on the face hereof. All Certificateholders of record, however, regardless of
the plan of distribution selected, will receive the distribution to be made on
the First Distribution Date and thereafter distributions will be made monthly
or semi-annually, depending upon the plan of distribution chosen by the holder
hereof.
If monthly distributions have been selected, the fractional
undivided interest represented by this Certificate in the balance in the
Interest Account, after the First Distribution Date and after the deductions
referred to in the Certificate, will be computed as of the 15th day of each
month of each year, commencing with the first such day after the First Record
Date, and subsequent to the date of this Certificate, and an amount in cash as
thus computed distributed to or upon the order of the holder at such date of
computation on or shortly after the 1st day of each subsequent month.
The plan of distribution chosen by the registered
holder hereof may be changed by written notice to the Trustee not
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later than May 15 in any calendar year by surrender to the Trustee of this
Certificate, together with a completed form for selection of a plan of
distribution provided by the Trustee. A plan of distribution shall continue in
effect until changed as herein provided. A change in a plan of distribution may
only be made as indicated herein and will be effective as of May 16 for the
ensuing twelve months.
In the event the amount on deposit in the Interest Account is
not sufficient for the payment of the amount of interest to be distributed to
Certificateholders participating in a distribution, the Trustee shall advance
its own funds and cause to be deposited in and credited to the Interest Account
such amounts as may be required to permit payment of the distribution to be
made and shall be entitled to be reimbursed, without interest, out of interest
received by the Fund subsequent to the date of such advance and subject to the
condition that any such reimbursement shall be made only under conditions which
will not reduce the funds in or available for the Interest Account to an amount
less than that required for the next ensuing distribution of interest.
Distributions to Certificateholders who are participating in one of the
optional plans for distributions of interest shall not be affected because of
advancements by the Trustee for the purpose of equalizing distributions to
Certificateholders participating in a different plan.
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FORM OF ASSIGNMENT
For Value Received __________________________________
hereby sells, assigns and transfers unto
[ ]
Please Insert Social Security
or Other Identifying Number
of Assignee
the within Certificate and does hereby irrevocably constitute and appoint
_____________________________ attorney, to transfer the within Certificate on
the books of the Trustee, with full power of substitution in the premises.
Date:
---------------------
Signature Guarantee
-------------------------------
NOTICE: The signature to this
assignment must correspond with
the name as written upon the
face of the Certificate in every
particular, without any
alteration or enlargement
whatsoever.
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ARTICLE II
DEPOSIT OF BONDS, ACCEPTANCE OF TRUST,
FORM AND ISSUANCE OF CERTIFICATES,
INSURANCE
SECTION 2.1. Deposit of Bonds. The Depositor, concurrently
with the execution and delivery hereof, has deposited with, or otherwise
transferred to, the Trustee in trust the Bonds listed in Schedule A 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. The Depositor shall deliver the Bonds listed on
said Schedule A to the Trustee which were not actually delivered concurrently
with the execution and delivery of the Indenture within 90 days after said
execution and delivery, or if the contract to buy any Bond between the
Depositor and the seller of such Bond is terminated by such seller for any
reason beyond the control of the Depositor, the Depositor shall forthwith take
the remedial action specified in Section 3.14.
SECTION 2.2. Acceptance of Trust. The Trustee hereby
accepts the trust herein created for the use and benefit of the
Certificateholders, subject to the terms and conditions of this
Indenture.
SECTION 2.3. Issue of Certificates. The Trustee hereby
acknowledges receipt of the deposit referred to in Section 2.1, and
simultaneously with the receipt of said deposit, has executed Certificates
substantially in the form above recited representing the ownership of the
aggregate number of Units set forth in Part II of the applicable Reference
Trust Agreement. Pending receipt of evidence satisfactory to it of the
registration of the Certificates under the Securities Act of 1933, as amended,
the Certificates will be held by the Trustee for the account of the Depositor.
SECTION 2.4. Form of Certificates. Each Certificate referred
to in Section 2.3 is, and each Certificate hereafter issued shall be, in
substantially the form hereinabove recited, numbered serially for
identification, in fully registered form, transferable only on the books of the
Trustee as herein provided, executed manually by an authorized officer of the
Trustee and in facsimile by a General Partner of the Depositor and dated the
date of execution and delivery by the Trustee. Certificates bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Depositor and Trustee shall bind the Depositor and Trustee,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior
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to the authentication and delivery of such Certificates or did not hold such
offices at the date of such Certificates.
SECTION 2.5. Bond Insurance. (a) For those Trusts in which
the Depositor has obtained Insurance, concurrently with the delivery to the
Trustee of the Bonds listed in Schedule A the Insurer shall deliver to and
deposit with the Trustee the Insurance to protect the Trust and the
Certificateholders against nonpayment of principal and interest when due on any
Bond as long as such Bond is held by the Trust pursuant and subject to this
Indenture.
The Trustee shall take all action deemed necessary or
advisable in connection with the Insurance to continue the Insurance in full
force and effect, all in such manner as in its sole discretion shall appear to
result in the most protection and least expense to the Trust.
At all times during the existence of the Trust, the Insurance
shall provide for payment by the Insurer to the Trustee of any amounts of
principal and interest due, but not paid, by the issuer of the Bond or by the
insurer of a Pre-insured Bond, as long a such Bond is held by the Trust. The
Trustee shall promptly notify the Insurer of any nonpayment, or significant
risk of nonpayment known to the Trustee, of principal or interest and the
Insurer shall, in accordance with the terms of the policy or policies, make
payment to the Trustee of all amounts of principal and interest at the time
due, but not paid.
Notwithstanding any other provision hereof, upon the making
of any payment by the Insurer to the Trustee as set forth in the preceding
paragraphs, the Insurer shall succeed to the rights of the Trustee under the
Bond or Bonds involved to the extent of the payments made. Concurrently with
the payment of any amounts by the Insurer occasioned by the nonpayment thereof
by the issuer of a Bond or by the issuer or insurer of a Pre-insured Bond, the
Trustee shall execute and deliver to the Insurer any receipt, instrument or
document required to evidence the right of the Insurer in the Bond or Bonds
involved to payment of principal and/or interest thereon to the extent of the
payments made by the Insurer to the Trustee.
With respect to Pre-insured Bond in the Trust, the Trustee
shall promptly notify both the Insurer of such Pre-insured Bonds and the
insurer of any nonpayment of such principal of or interest on such Bonds and if
such Insurer shall fail to make payments to the Trustee, shall present evidence
to the Insurer that demand for payment has been made to such Insurer. Upon
receipt of such notice and of such evidence of demand for payment made to the
Insurer, the Insurer shall pay to the Trustee any amount of principal and
interest due but not paid on such Pre-insured Bonds.
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The Trustee shall also take such action required under
Sections 3.7, 3.8, 3.10, 5.2 and 6.4 hereof with respect to Permanent
Insurance.
(b) For those Trusts in which the Depositor has not obtained
Insurance, the Pre-insured Bonds shall be guaranteed from their respective date
of issuance by the respective insurance companies designated for each Bond in
the prospectus for the Trust. With respect to the Pre-insured Bonds in the
Trust, the Trustee shall promptly notify the insurer of such Pre-insured Bonds
of any nonpayment of such principal of or interest on such Bonds and if an
insurer should fail to make payment to the Trustee within 30 days after receipt
of such notice, the Trustee shall take all action against such insurer deemed
necessary by the Trustee to collect all amounts of principal and interest at
that time due, but not collected.
ARTICLE III
ADMINISTRATION OF FUND
SECTION 3.1. Initial Cost. The cost of the initial
preparation, printing and execution of the Certificates and this Indenture,
Registration Statement and other documents relating to the Trust, Federal and
State registration fees and costs, the initial fees and expenses of the Trustee
and Evaluator, legal and auditing expenses and other out-of-pocket expenses
(excluding expenses incurred in the preparation and printing of preliminary
prospectuses and prospectuses, expenses incurred in the preparation and
printing of brochures and other advertising materials and any other selling
expenses), to the extent not borne by the Depositor, shall be paid by the
Trust; provided, however, the Trust shall not bear such expenses in excess of
the amount shown in the Statement of Condition included in the Prospectus, and
any such excess shall be borne by the Depositor. To the extent the funds in the
Interest and Principal Accounts of the Trust shall be insufficient to pay the
expenses borne by the Trust specified in this Section 3.1, the Trustee shall
advance out of its own funds and cause to be deposited and credited to the
Interest Account such amount as may be required to permit payment of such
expenses. The Trustee shall be reimbursed for such advance in the manner
provided in Section 3.5, and the provisions of Section 6.4 with respect to the
reimbursement of disbursements for Trust expenses, including, without
limitation, the lien in favor of the Trustee therefor, shall apply to the
payment of expenses made pursuant to this Section. For purposes of calculation
of distributions under Section 3.5 and the addition provided in clause (4) of
Section 5.1, the expenses borne by the Trust pursuant to this Section shall be
deemed to accrue at a daily rate over the time period specified for their
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amortization provided in the Prospectus; provided, however, that nothing herein
shall be deemed to prevent, and the Trustee shall be entitled to, full
reimbursement for any advances made pursuant to this Section no later than the
termination of the Trust.
SECTION 3.2. Interest Account. The Trustee shall collect the
interest on the Bonds as it becomes payable (including all interest accrued but
unpaid prior to the date of deposit of the Bonds in trust and including that
part of the proceeds of the sale, liquidation, redemption or maturity of any
Bonds or insurance on any Bonds which represents accrued interest thereon and
including all moneys representing penalties for the failure to make timely
payments on the Bonds, or as liquidated damages for default or breach of any
conditions or term of the Bonds or of any instrument underlying such Bonds) and
credit such interest to a separate account to be known as the "Interest
Account."
SECTION 3.3. Principal Account. (a) The Bonds and all moneys
(except moneys held by the Trustee pursuant to subsection (b) hereof), other
than amounts credited to the Interest Account or the Reserve Account, received
by the Trustee in respect of the Bonds or insurance on any Bonds shall be
credited to a separate account to be known as the "Principal Account."
(b) Moneys and/or irrevocable letters of credit required to
purchase Contract Bonds or deposited to secure such purchases are hereby
declared to be held specially by the Trustee for such purchases and shall not
be deemed to be part of the Principal Account until (i) the Depositor fails to
timely purchase a Contract Bond and has not given the Failed Contract Notice
(as defined in Section 3.14) at which time the moneys and/or letters of credit
attributable to the Contract Bond not purchased by the Depositor shall be
credited to the Principal Account; or (ii) the Depositor has given the Trustee
the Failed Contract Notice at which time the moneys and/or letters of credit
attributable to failed contracts referred to in such Notice shall be credited
to the Principal Account; provided, however, that if the Depositor also
notifies the Trustee in the Failed Contract Notice that it has purchased or
entered into a contract to purchase a New Bond (as defined in Section 3.14),
the Trustee shall not credit such moneys and/or letters of credit to the
Principal Account unless the New Bond shall also have failed or is not
delivered by the Depositor within two business days after the settlement date
of such New Bond, in which event the Trustee shall forthwith credit such moneys
and/or letters of credit to the Principal Account. The Trustee shall in any
case forthwith credit to the Principal Account, and/or cause the Depositor to
deposit in the Principal Account, the difference, if any, between the purchase
price of the failed Contract Bond and the purchase price of the New Bond,
together with any sales charge and accrued
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interest applicable to such difference and distribute such moneys to the
Certificateholders pursuant to Section 3.5.
SECTION 3.4. Reserve Account. From time to time the Trustee
shall withdraw from the cash on deposit in the Interest Account or 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 Fund. 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
Certificateholders any of the amount in the Reserve Account; provided, however,
that if it 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 appropriate
account, or if the Trust has been terminated or shall be in the process of
termination, the Trustee shall distribute to each Certificateholder such
holder's interest in the Reserve Account in accordance with Section 9.2.
SECTION 3.5. Distribution. The Trustee, as of the First
Settlement Date, shall advance out of its own funds and cause to be deposited
in and credited to the Interest Account such amount as may be required to
permit payment of the amount of interest accrued on the Bonds in the Trust
through such date (less the amount which the Trustee is entitled to receive at
such time pursuant to Section 6.4, the amount which the Evaluator is entitled
to receive at such time pursuant to Section 4.3, the amount which the Depositor
is entitled to receive at such time pursuant to Section 8.6, and shall pay to
the Certificateholders then of record, namely the Depositor, such amount. The
Trustee shall be entitled to be reimbursed, without interest, for such
advancement, and such reimbursement shall be made from the interest received by
the Trust. Subsequent distributions shall be made as hereinafter provided.
The first distribution shall be made on the First
Distribution Date to all holders of record as of the First Record Date.
Thereafter, as of the Monthly Computation Date the Trustee shall:
(a) deduct from the Interest 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 6.4 or pursuant to this Section 3.5;
(b) deduct from the Interest Account, or, to the extent funds
are not available in such Account, from the Principal Account, and pay to the
Evaluator the amount that it is at the time entitled to receive pursuant to
Section 4.3;
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(c) deduct from the Interest Account, or, to the extent funds
are not available in such Account, from the Principal Account, and pay to the
Depositor the amount that it is at the time entitled to receive pursuant to
Section 8.5; and
(d) deduct from the Interest Account, or, to the extent funds
are not available in such Account, from the Principal Account, and pay to bond
counsel and auditors, as hereinafter provided for, an amount equal to unpaid
fees and expenses, if any, of such bond counsel or auditors as certified to by
the Depositor.
Any amount withdrawn from the Principal Account in order to
satisfy requirements which, pursuant to the terms of this Indenture, are first
to be satisfied out of the Interest Account to the extent funds are available
therein shall be reimbursed to the Principal Account when sufficient funds are
next available in the Interest Account.
On the Semi-Annual Distribution Date, or within a reasonable
period of time thereafter, the Trustee shall distribute by mail to each
Certificateholder of record at the close of business on the preceding
Semi-Annual Computation Date at his post office address such holder's pro rata
share of the balance of the Interest Account, plus such holder's pro rata share
of the cash balance of the Principal Account, each computed as of such
Computation Date. 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 Unit.
In the event that (i) the amount on deposit in the Interest
Account on a Semi-Annual Distribution Date is not sufficient for the payment of
the amount of interest to be distributed on the basis of the foregoing
computation, the Trustee shall advance out of its own funds and cause to be
deposited in and credited to the Interest Account such amount as may be
required to permit payment of the interest distribution to be made on such
Semi-Annual Distribution Date or (ii) in order to acquire any Bond for the
Trust Fund, it is necessary to pay on the settlement date for delivery of such
Bond an amount covering accrued interest on such Bond that exceeds the amount
of interest accrued on such Bond to the date on which the Certificateholder
settles on the purchase of his Units, the Trustee shall advance out of its own
funds any amounts necessary to cover such excess, then in either event, the
Trustee shall be entitled to be reimbursed, without interest, out of interest
received by the Trust Fund on the first Semi-Annual Computation Date following
the date of such advance on which such reimbursement may be made without
reducing the amount of the Interest Account to an amount less than that
required of the next ensuing semi-annual or monthly interest distribution.
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In lieu of the semi-annual distributions of interest set
forth above, a Certificateholder may elect to receive payments from the
Interest Account, represented by the Units in a Certificate, monthly. The first
distribution to Certificateholders as of the First Record Date, however, shall
be made to or upon the order of all holders of Certificates regardless of
whether they have chosen to receive subsequent distributions on a different
basis.
Certificateholders desiring to receive monthly distributions
and who purchase their Certificates prior to the Record Date for the first
distribution may elect at the time of purchase to receive distributions on a
monthly basis by notice to the Trustee. Those indicating no preference will be
deemed to have elected to receive semi-annual distributions. Such notice shall
be effective with respect to subsequent distributions until changed by further
notice to the Trustee. In April of each year, the Trustee will furnish each
Certificateholder a card to be returned to the Trustee by May 15 of each year
if the Certificateholder wishes to change his plan of distribution. Those
wishing to change shall so indicate on the card and return it to the Trustee
and accompany the card by the surrender of the Certificate to which it relates.
Changes may be made only as herein provided and will become effective as of the
following May 16 to continue until further notice.
For monthly distributions the share of the balance in the
Interest Account to be distributed to or upon the order of a Certificateholder
who has elected to receive monthly distributions, after the First Distribution
Date, shall be computed as of the Monthly Computation Date commencing with the
first such day subsequent to the First Record Date and distribution made as
provided herein on or shortly after the Monthly Distribution Date to the
Certificateholder of record on the Monthly Computation Date. Such computation
shall be made on the basis of one-twelfth of the estimated annual interest
income to the Fund for the ensuing twelve months for the account of
Certificateholders who have elected to receive monthly distributions, after
deduction of the estimated costs and expenses to be incurred on behalf of such
Certificateholders during the twelve-month period for which such interest
income has been estimated.
If on any Monthly Computation Date the pro rata share of the
distributable cash balance of the Principal Account exceeds $10.00 per Unit
then outstanding, the Trustee shall, to the extent permitted by the Investment
Company Act of 1940 and the rules and regulations thereunder or an exemptive
order issued by the Securities and Exchange Commission thereunder, on the next
succeeding Monthly Distribution Date distribute by mail to each
Certificateholder of record as of the close of business on the immediately
preceding Monthly Computation Date at his or her address appearing on the
registration books of the Trustee, such
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Certificateholder's pro rata share of the balance of the Principal Account.
To the extent practicable, the Trustee shall allocate the
expenses of the Fund among Units, giving effect to differences in
administrative and operational cost among those who have chosen to receive
distributions semi-annually or monthly.
In the event the amount on deposit in the Interest Account
for a monthly distribution is not sufficient for the payment of the amount of
interest to be distributed to Certificateholders participating in such
distributions on the basis of the aforesaid computations, the Trustee shall
advance its own funds and cause to be deposited in and credited to the Interest
Account such amounts as may be required to permit payment of the monthly
interest distribution to be made as aforesaid and shall be entitled to be
reimbursed, without interest, out of interest received by the Fund subsequent
to the date of such advance and subject to the condition that any such
reimbursement shall be made only under conditions which will not reduce the
funds in or available for the Interest Account to an amount less than required
for the next ensuing distribution of interest. Distributions to
Certificateholders who are participating in one of the optional plans for
distribution of interest shall not be affected because of advancements by the
Trustee for the purpose of equalizing distributions to Certificateholders
participating in a different plan.
If the Depositor (i) fails to replace any Special Bond (as
defined in Section 3.14) or (ii) is unable or fails to enter into any contract
for the purchase of any New Bond in accordance with Section 3.14, the Trustee
shall distribute to all Certificateholders, as of the expiration of the
Purchase Period (as defined in Section 3.14), the principal, accrued interest
(determined at the coupon rate of the Special Bond from the Date of Deposit to
the expiration of the Purchase Period) and the sales charge attributable to
such Special Bonds at the next Monthly Distribution Date which is more than
thirty days after the expiration of the Purchase Period.
If any contract for a New Bond in replacement of a Special
Bond shall fail, the Trustee shall distribute the principal, accrued interest
and sales charge attributable to the Special Bond to the Certificateholders at
the next Monthly Payment Date which is more than thirty days after the date on
which the contract in respect of such New Bond failed.
If, at the end of the Purchase Period, less than all moneys
attributable to a failed Special Bond have been applied or allocated by the
Trustee pursuant to a contract to purchase New Bonds, the Trustee shall
distribute the remaining moneys to
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Certificateholders at the next Monthly Payment Date which is more than thirty
days after the end of the Purchase Period.
The amounts to be so distributed to each Certificateholder
shall be that pro rata share of the cash balance of the Interest and Principal
Accounts, computed as set forth above, as shall be represented by the Units
evidenced by the outstanding Certificate or Certificates registered in the name
of such Certificateholder.
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 Interest 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 purpose of distribution as herein provided, the
holders of record on the registration books of the Trustee at the close of
business on each Semi-Annual or Monthly Computation Date shall be conclusively
entitled to such distribution, and no liability shall attach to the Trustee by
reason of payment to any such registered Certificateholder of record. Nothing
herein shall be construed to prevent the payment of amounts from the Interest
Account and the Principal Account to individual Certificateholders 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 3.6 hereof.
SECTION 3.6. Distribution Statements. With each distribution
from the Interest or Principal Accounts the Trustee shall set forth, either in
the instrument by means of which payment of such distribution is made or in an
accompanying statement, the amount being distributed from each such account
expressed as a dollar amount per unit.
In the event that the issuer of any of the Bonds shall fail
to make payment when due of any interest or principal and such failure results
in a change in the amount which would otherwise be paid as a distribution of
interest the Trustee shall, with the first such distribution to each
Certificateholder following such failure, set forth in an accompanying
statement (a) the name of the issuer and the Bond, (b) the amount of the
reduction in the distribution per Unit resulting from such failure, (c) the
percentage of the aggregate principal amount of Bonds which such Bond
represents, and (d) to the extent then determined, information regarding any
disposition or legal action with respect to such Bonds.
Within a reasonable period of time after the last business
day of each calendar year, the Trustee shall furnish to
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each person who at any time during such calendar year was a Certificateholder a
statement setting forth, with respect to such calendar year:
(A) as to the Interest Account:
(1) the amount of interest received on the Bonds,
(2) the amounts paid in connection with purchases of
New Bonds pursuant to Section 3.14 and for
redemption pursuant to Section 5.2,
(3) the deduction for payment of applicable taxes,
compensation of the Evaluator, fees and expenses of
the Trustee and bond counsel and the annual fee of
the Depositor for portfolio supervisory services,
and
(4) 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:
(1) the dates of the sale, maturity, liquidation or
redemption of any of the Bonds and the net
proceeds received therefrom, excluding any portion
thereof credited to the Interest Account,
(2) the amounts paid for purchases of New Bonds
pursuant to Section 3.14 and for redemptions
pursuant to Section 5.2,
(3) the deductions for payment of applicable taxes,
compensation of the Evaluator, fees and expenses of
the Trustee and bond counsel and the annual fee of
the Depositor for portfolio supervisory services,
and
(4) 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 Bonds disposed of or acquired during
such calendar year and a list of the Bonds as of
the last business day of such calendar year,
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(2) the number of Units outstanding on the last
business day of such calendar year,
(3) the Unit Value (as defined in Section 5.1) based
on the last Trust Fund evaluation made during such
calendar year; and
(4) the amounts actually distributed during such
calendar year from the Interest and Principal
Accounts, separately stated, expressed both as total
dollar amounts and as dollar amounts per Unit
outstanding on the record dates for such
distributions.
SECTION 3.7. Sale of Bonds. In order to maintain the sound
investment character of the Trust Fund, the Depositor may direct the Trustee to
sell Bonds, provided the Depositor deems such sale to be in the best interest
of Certificateholders in accordance with Section 2.5 hereof, 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 default on such Bonds in the
payment of principal or interest, or both, when due and payable;
(b) that any action or proceeding has been instituted in law
or equity seeking to restrain or enjoin the payment of principal or interest on
any such Bonds, attacking the constitutionality of any enabling legislation or
alleging and seeking to have judicially determined the illegality of the
issuing body or the constitution of its governing body or officers, the
illegality, irregularity or omission of any necessary acts or proceedings
preliminary to the issuance of such Bonds, the tax-exempt nature of the
interest paid on such Bonds under the Internal Revenue Code of 1986, as
amended, or seeking to restrain or enjoin the performance by the officers or
employees of any such issuing body of any improper or illegal act in connection
with the administration of funds necessary for debt service on such Bonds or
otherwise; or that there exists any other legal question or impediment
affecting such Bonds or the payment of debt service on the same;
(c) that there has occurred any breach of covenant or
warranty in any resolution, ordinance, trust, indenture or other document, of
which the Depositor has received notice, which would adversely affect either
immediately or contingently the payment of debt service on such Bonds, or other
general credit standing, or otherwise impair the sound investment character of
such Bonds;
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(d) that there has been a default in the payment of
principal of or interest on any other outstanding obligations of
an issuer of such Bonds;
(e) that in the case of revenue bonds, the revenues and
income of the facility or project or other special funds expressly charged and
pledged for debt service on any such Bonds shall fall substantially below the
estimated revenues or income calculated by the engineers or other proper
officials charged with the acquisition, construction or operation of such
facility or project, so that, in the opinion of the Depositor, the retention of
such Bonds would be detrimental to the sound investment character of the Trust
Fund and to the interest of the Certificateholders;
(f) that the price of any such Bonds has declined to such an
extent, or such other market or credit factor exists, so that in the opinion of
the Depositor, with consideration of the insurance, the retention of such Bonds
would be detrimental to the Trust Fund and to the interest of the
Certificateholders;
(g) that such Bonds are the subject of an advance refunding.
For the purposes of this Section 3.7(g), "an advance refunding" shall mean when
refunding bonds are issued and the proceeds thereof are deposited in
irrevocable trust to retire the Bonds on or before their redemption date; or
(h) that as of any Computation Date such Bonds are scheduled
to be redeemed and paid prior to the next succeeding Distribution Date;
provided, however, that as the result of such sale the Trustee will receive
funds in an amount sufficient to enable the Trustee to include in the
distribution from the Principal Account on such next succeeding Distribution
Date at least $1.00 per Unit.
Upon receipt of such direction from the Depositor, upon which
the Trustee shall rely, the Trustee shall proceed to sell the specified Bond in
accordance with such direction; provided, however, that the Trustee shall not
sell any Bond upon receipt of a direction from the Depositor that it is
determined that the conditions in subdivision (h) above exist, unless the
Trustee shall receive on account of such sale the full principal amount of such
Bonds, plus the premium, if any, and the interest accrued and to accrue thereon
to the date of the redemption of such Bonds. 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 of the Depositor or by reason of the
failure of the Depositor to give any direction, and in the absence of such
direction the Trustee shall have no duty to sell any Bonds under this Section
3.7 except to the extent otherwise required by Section 3.10 of this Indenture.
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SECTION 3.8. Refunding Bonds. In the event that an offer
shall be made by an obligor of any of the Bonds to issue new obligations in
exchange and substitution for any issue of Bonds pursuant to a plan for the
refunding or refinancing of such Bonds, the Depositor shall instruct the
Trustee in writing to reject such offer and either to hold or sell such Bonds
in accordance with Section 3.7, except that if (1) the issuer is in default
with respect to such Bonds or (2) in the opinion of the Depositor, given in
writing to the Trustee, the issuer will probably default with respect to such
Bonds in the reasonably foreseeable future, the Depositor shall instruct the
Trustee in writing to accept or reject such offer or take any other action with
respect thereto as the Depositor may deem proper; provided, however, that the
Trustee may accept such an offer only if such substitute or refunding bonds
shall be eligible for coverage of, and upon deposit into the Trust shall be
subject to the terms and conditions of this Indenture to the same extent as the
Bonds originally deposited hereunder. Within five days after such deposit,
notice of such exchange and deposit shall be given by the Trustee to each
Certificateholder, including an identification of the Bonds eliminated and the
Bonds substituted thereof. Except as set forth in this Section 3.8, the
acquisition by the Trust Fund of any securities other than the Bonds is
prohibited.
SECTION 3.9. Bond Counsel. The Depositor may employ from time
to time as they may deem necessary a firm of municipal bond attorneys for any
legal services that may be required in connection with the disposition of Bonds
pursuant to Section 3.7 or the substitution of any securities for Bonds as the
result of any refunding permitted under Section 3.8. The fees and expenses of
such bond counsel shall be paid by the Trustee from the Interest and Principal
Accounts as provided for in Section 3.5(d) hereof.
SECTION 3.10. Notice and Sale by Trustee. If at any time the
principal of or interest on any of the Bonds shall be in default and not paid
or provision for payment thereof shall not have been duly made, the Trustee
shall notify the Depositor thereof. If within thirty days after such
notification the Depositor has not given any instructions to sell or to hold or
have not taken any other action in connection with such Bonds, the Trustee
shall sell such Bonds forthwith in accordance with Sections 3.7 and 3.8, and
neither the Trustee nor the Depositor shall be liable or responsible in any way
for depreciation or loss incurred by reason of such sale.
SECTION 3.11. Trustee not to Amortize. Nothing in this
Indenture, or otherwise, shall be construed to require the Trustee to make any
adjustments between the Interest and Principal Accounts by reason of any
premium or discount in respect of any of the Bonds.
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SECTION 3.12. Liability of Depositor. The Depositor shall be
under no liability to the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Indenture or for errors in judgment, but shall be liable only for its own gross
negligence, bad faith or willful misconduct. The Depositor may rely in good
faith on any paper, order, notice, list, affidavit, receipt, opinion,
endorsement, assignment, draft or any other document of any kind prima facie
properly executed and submitted to it by the Trustee, the Evaluator, bond
counsel, or any other person pursuant to this Indenture and in furtherance of
their duties.
SECTION 3.13. Notice to Depositor. In the event that the
Trustee shall have been notified at any time of any action to be taken or
proposed to be taken by holders of the Bonds (including but not limited to the
making of any demand, direction, request, giving of any notice, consent or
waiver or the voting with respect to any amendment or supplement to any
indenture, resolution, agreement or other instrument under or pursuant to which
the Bonds 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, subject to the requirements of Section 3.7, 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 3.13.
SECTION 3.14. Limited Replacement of Special Bonds. If any
contract in respect of Contract Bonds other than a contract to purchase a New
Bond (as defined below), including those purchased on a when, as and if issued
basis, shall have failed due to any occurrence, act or event beyond the control
of the Depositor or the Trustee (such failed Contract Bonds being herein called
the "Special Bonds"), the Depositor shall notify the Trustee (such notice being
herein called the "Failed Contract Notice") of its inability to deliver the
Special Bond to the Trustee after it is notified that the Special Bond will not
be delivered by the seller thereof to the Depositor. Such Failed Contract
Notice shall be given no later than 90 days after the Date of Deposit for the
Trust. Prior to, or simultaneously with, giving the Trustee the Failed Contract
Notice, or within a maximum of twenty days after giving such Notice (such
twenty-day period being herein called the "Purchase Period", unless the
Depositor determine not to replace the Special Bond, in which case the
"Purchase Period" will terminate on the date of such determination), the
Depositor shall, if possible, purchase or enter into a contract to purchase an
obligation to be held as a Bond hereunder (herein called the "New Bond") as
part of the
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Trust in replacement of the Special Bond, subject to the satisfaction of all of
the following conditions in the case of each purchase or contract to purchase:
(a) The New Bonds (i) shall be tax-exempt bonds issued by a
state or a county, municipality, authority or political subdivision thereof or
by certain United States territories or possessions or their public
authorities, (ii) shall have a fixed maturity date (whether or not entitled to
the benefits of any sinking, redemption, purchase or similar fund) not
exceeding the date of maturity of the Special Bond they replace and not less
than ten years after the date of purchase, (iii) shall be purchased at a price
that results in a yield to maturity and a current return, in each case as of
the Date of Deposit, at least equal to the yield to maturity and the current
return of the Special Bond which they replace, (iv) shall be payable as to
principal and interest in United States currency, and (v) shall not be when, as
and if issued Bonds.
(b) Each New Bond shall be rated at least equal to the
Special Bond which it replaces by Standard & Poor's Corporation or Xxxxx'x
Investors Service, or comparably rated by any other nationally recognized
credit rating service rating debt obligations which shall be designated by the
Depositor and shall be satisfactory to the Trustee.
(c) The purchase price of the New Bonds (exclusive of accrued
interest) shall not exceed the principal attributable to the Special Bonds.
(d) The Depositor shall furnish a notice to the Trustee
(which may be part of the Failed Contract Notice) in respect of the New Bonds
purchased or to be purchased that shall (i) identify the New Bonds, (ii) state
that the contract to purchase, if any, entered into by the Depositor is
satisfactory in form and substance, and (iii) state that the foregoing
conditions of clauses (a) through (c) have been satisfied with respect to the
New Bonds.
Upon satisfaction of the foregoing conditions with respect to
any New Bond, the Depositor shall pay the purchase price for the New Bond from
its own resources or, if the Trustee has credited any moneys and/or letters of
credit attributable to the failed Special Bond to the Principal Account, the
Trustee shall pay the purchase price of the New Bond upon directions from the
Depositor from the moneys and/or letters of credit so credited to the Principal
Account. If the Depositor has paid the purchase price, and, in addition, the
Trustee has credited moneys of the Depositor to the Principal Account, the
Trustee shall forthwith return to the Depositor the portion of such moneys that
is not properly distributable to Certificateholders pursuant to Section 3.5.
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Whenever a New Bond is acquired by the Depositor pursuant to
the provisions of this Section 3.14, the Trustee shall, within five days
thereafter, mail to all Certificateholders notices of such acquisition,
including an identification of the failed Special Bond and the New Bond
acquired. 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 directions and in the absence of such directions the Trustee shall have no
duty to purchase any Bonds under this Indenture. The Depositor shall not be
liable for any failure to instruct the Trustee to purchase any New Bonds or for
errors of judgment in respect of this Section 3.14; provided, however, that
this provision shall not protect the Depositor against any liability to which
it would otherwise be subject by reason of willful misconduct, bad faith or
gross negligence in the performance of its duties.
Notwithstanding anything to the contrary in this Section
3.14, no substitution of New Bonds will be made without an opinion of counsel
that such substitution will not adversely affect the Federal income tax status
of the Trust, if such New Bonds when added to all previously purchased New
Bonds in the Trust exceed 15% of the principal amount of Bonds initially
deposited.
ARTICLE IV
EVALUATION OF BONDS; EVALUATOR
SECTION 4.1. Evaluation by Evaluator. The Evaluator shall
determine separately and promptly furnish to the Trustee and the Depositor upon
request the value of each issue of Bonds (treating separate maturities of Bonds
as separate issues) as of the Evaluation Time on the bid side of the market on
the days on which the Trustee shall make the Trust Fund Evaluation required by
Section 5.1 and, in addition, as of the Evaluation Time on the offering side of
the market each business day during the initial public offering period. In
making the evaluation the Evaluator may determine the value of each issue of
the Bonds in the Trust Fund by the following methods or any combination thereof
which it deems appropriate: (i) on the basis of current bid or offering prices
of such Bonds as obtained from investment dealers or brokers (including the
Depositor) who customarily deal in public bonds comparable to those held by the
Trust Fund, (ii) if bid or offering prices are not available for any of such
Bonds, on the basis of bid or offering prices for comparable bonds, (iii) by
appraisal, or (iv) in its evaluation of Bonds which are in default in payment
of principal or interest or, in the Depositor's opinion, in significant risk of
such default ("Defaulted Bonds"), on the basis of the value of the insurance as
well as
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the current bid and offering prices of such Bonds and the current bid and
offering prices of such issuers whose securities, if identifiable, carry
identical interest rates and maturities and are of a creditworthiness
comparable to the issuer of such Bonds prior to the default or significant risk
of default. If such other bonds are not identifiable, the Evaluator will
compare prices of bonds with substantially identical interest rates and
maturities and which are of a creditworthiness of minimum investment grade or
(v) by any combination of the above which it deems appropriate. The Evaluator
shall also make an evaluation of the Bonds deposited in the Trust Fund as of
the time said Bonds are deposited under this Indenture. Such evaluation shall
be made on the same basis set forth above and shall be based upon offering
prices of said Bonds. In addition to the methods of determining the value of
the Bonds described above, the Evaluator may make the initial evaluation in
whole or in part by reference to the Blue List of Current Municipal Offerings
(a daily publication containing the current public offering prices of public
bonds of all grades currently being offered by dealers and banks). The
Evaluator's determination of the offering price of the Bonds on the Date of
Deposit shall be included in Schedule A.
SECTION 4.2. Tax Reports. For the purpose of permitting
Certificateholders to satisfy any reporting requirements of applicable Federal
or State tax law, the Evaluator shall make available to the Trustee and the
Trustee shall transmit to any Certificateholder upon request any determinations
made by it pursuant to Section 4.1.
SECTION 4.3. Evaluator's Compensation. As compensation for
its services hereunder, the Evaluator shall receive against a statement
therefor submitted to the Trustee monthly on or before each monthly Computation
Day the amount set forth in Part II of the applicable Reference Trust
Agreement, provided that if at any time the fee of the Trustee shall have been
increased pursuant to Section 6.4, the compensation of the Evaluator shall at
the same time be ratably increased.
SECTION 4.4. Liability of Evaluator. The Trustee and the
Depositor may rely on any evaluation furnished by the Evaluator and shall have
no responsibility for the accuracy thereof. The determinations made by the
Evaluator hereunder shall be made in good faith upon the basis of the best
information available to it. The Evaluator shall be under no liability to the
Trustee, Depositor or Certificateholders for errors in judgment, provided,
however, that this provision shall not protect the Evaluator against any
liability to which it would otherwise be subject by reason of its willful
misconduct, bad faith or gross negligence.
SECTION 4.5. Successor Evaluator. (a) The Evaluator
may resign and be discharged hereunder, by executing an instru-
ment in writing resigning as Evaluator and filing the same with
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the Depositor and the Trustee, not less than 60 days before the date specified
in such instrument when, subject to Section 4.5(e), such resignation is to take
effect. Upon receiving such notice of resignation, the Depositor and the
Trustee shall use their best efforts to appoint a successor evaluator having
qualifications and at a rate of compensation satisfactory to the Depositor and
the Trustee. Such appointment shall be made by written instrument executed by
the Depositor and the Trustee, in duplicate, one copy of which shall be
delivered to the resigning Evaluator and one copy to the successor evaluator.
The Depositor and the Trustee may remove the Evaluator at any time upon 30
days' written notice and appoint a successor evaluator having qualifications
and at a rate of compensation satisfactory to the Depositor and the Trustee.
Such appointment shall be made by written instrument executed by the Depositor
and the Trustee, in duplicate, one copy of which shall be delivered to the
Evaluator so removed and one copy to the successor evaluator. Notice of such
resignation or removal and appointment of a successor evaluator shall be mailed
by the Trustee to each Certificateholder.
(b) Any successor evaluator appointed hereunder shall
execute, acknowledge and deliver to the Depositor and the Trustee an instrument
accepting such appointment hereunder, and such successor evaluator without any
further act, deed or conveyance shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder with like effect as
if originally named Evaluator herein and shall be bound by all the terms and
conditions of this Agreement.
(c) In case at any time the Evaluator shall resign and no
successor evaluator shall have been appointed and have accepted appointment
within 30 days after notice of resignation has been received by the Depositor
and the Trustee, the Evaluator may forthwith apply to a court of competent
jurisdiction for the appointment of a successor evaluator. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor evaluator.
(d) Any corporation into which the Evaluator hereunder may be
merged or with which it may consolidate, or any corporation resulting from any
merger or consolidation to which the Evaluator hereunder shall be a party,
shall be the successor evaluator under this Agreement 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 the Evaluator 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.
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(e) Any resignation or removal of the Evaluator and
appointment of a successor evaluator pursuant to this Section 4.5 shall become
effective upon acceptance of appointment by the successor evaluator as provided
in subsection (b) hereof.
ARTICLE V
TRUST FUND EVALUATION, REDEMPTION, PURCHASE
TRANSFER, INTERCHANGE OR REPLACEMENT OF CERTIFICATES
SECTION 5.1. Trust Fund Evaluation. The Trustee shall make an
evaluation of the Trust Fund as of the Evaluation Time (i) on each Business Day
on which any Unit is tendered for redemption if prior to the Evaluation Time
that day, otherwise on the following Business Day, (ii) on each Business Day
during the initial offering period, and (iii) on any other day desired by the
Trustee or requested by the Depositor. Such evaluations shall take into account
and itemize separately (1) the cash on hand in the Trust Fund (other than cash
declared held specially for purchase of Contract Bonds under Section 3.14
hereof or cash credited to the Reserve Account) or moneys in the process of
being collected from matured interest coupons or bonds matured or called for
redemption prior to maturity, (2) the value of each issue of the Bonds
(including Contract Bonds) on the bid side of the market as determined by the
Evaluator pursuant to Section 4.1, (3) interest accrued thereon not subject to
collection and distribution, and (4) amounts representing organizational
expenses paid less amounts representing accrued organizational expenses of the
Trust. For each such evaluation there shall be deducted from the sum of the
above (i) amounts representing any applicable taxes or governmental charges
payable out of the Trust Fund and for which no deductions shall have previously
been made for the purpose of addition to the Reserve Account, (ii) amounts
representing accrued expenses of the Trust Fund including but not limited to
unpaid fees and expenses of the Trustee, the Evaluator and bond counsel and
those relating to the annual audit, in each case as reported by the Trustee to
the Evaluator on or prior to the date of evaluation, and (iii) cash held for
distribution to Certificateholders of record as of a date prior to the
evaluation then being made. The value of the pro rata share of each Unit
determined on the basis of any such evaluation shall be referred to herein as
the "Unit Value," and shall be effective as to (i) all orders received by the
Sponsors for the purchase or sale of Units and (ii) all Units received by the
Trustee for redemption prior to the Evaluation Time utilized but subsequent to
the preceding evaluation.
The Trustee shall make an evaluation of the Bonds deposited
in the Fund as of the time said Bonds are deposited under this Indenture. Such
evaluation shall be made on the same
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basis as set forth in Section 4.1, except that it shall be based upon the
offering prices of said Bonds and upon the bid prices of the Trust Units. The
Trustee, in lieu of making the evaluation required hereby, may use an
evaluation prepared by the Evaluator and in so doing shall not be liable or
responsible under any circumstances whatever for the accuracy or correctness
thereof or for any error or omission therein. The Trustee's determination of
the offering price of the Bonds on the date of deposit determined as herein
provided shall be included in Schedule A.
SECTION 5.2. Redemption by Trustee; Purchases by Depositor.
Any Certificate, properly endorsed or accompanied by a written instrument of
transfer, tendered for redemption by a Certificateholder or his duly authorized
attorney to the Trustee at its corporate trust office in the City of New York
shall be redeemed by the Trustee on the third Business Day following the day on
which tender for redemption is made (being herein called the "Redemption
Date"). Subject to payment by such Certificateholder of any tax or other
governmental charges which may be imposed thereon, such redemption is to be
made by payment on the Redemption Date of cash equivalent to the Unit Value,
determined by the Trustee as of the next subsequent Evaluation Time, multiplied
by the number of Units represented by such Certificate (herein called the
"Redemption Price").
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 Price for more than three Business Days following the
day on which tender for redemption is made (1) for any period during which the
New York Stock Exchange, Inc. is closed other than customary weekend and
holiday closings or during which trading on the New York Stock Exchange, Inc.
is restricted; (2) for any period during which an emergency exists as a result
of which disposal by the Trust Fund of the Bonds is not reasonably practicable
or it is not reasonably practicable fairly to determine in accordance herewith
the value of the Bonds; or (3) for such other period as the Securities and
Exchange Commission may by order permit; and neither the Trustee nor the
Depositor shall be liable to any person or in any way for any loss or damage
which may result from any such suspensions or postponement.
Not later than the close of business on the day of tender of
a Certificate for redemption by a Certificateholder other than the Depositor,
the Trustee shall notify the Depositor of such tender. The Depositor shall have
the right to purchase such Certificate by notifying the Trustee of its election
to make such purchase as soon as practicable thereafter but in no event
subsequent to the close of business on the second Business Day after the day on
which such Certificate was tendered for redemption. Such purchase shall be made
by payment for such Certificate by the Depositor to the Certificateholder not
later
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than the close of business on the Redemption Date of an amount not less than
the Redemption Price which would otherwise be payable by the Trustee to such
Certificateholder.
Any Certificate 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 5.2, provided that in no event shall the Depositor
receive a greater amount on such redemption than the amount the Depositor paid
in purchasing such Certificate plus accrued interest from the date of purchase
of such Certificate by the Depositor, less the amount, if any, of any
distributions from the Principal Account received by the Depositor with respect
to such Certificate.
If the Depositor does not elect to purchase any Certificate
tendered to the Trustee for redemption, or if a Certificate is being tendered
by the Depositor for redemption, that portion of the Redemption Price which
represents interest shall be withdrawn from the Interest Account to the extent
available. The balance paid on any redemption, including accrued interest, 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 sell, in accordance with the provisions set forth below, such
of the Bonds currently designated for such purposes by the Depositor as the
Trustee in its sole discretion shall deem necessary. In the event that funds
are withdrawn from the Principal Account for payment of accrued interest, the
Principal Account shall be reimbursed for such funds so withdrawn when
sufficient funds are next available in the Interest Account.
The Depositor shall maintain with the Trustee a current list
of Bonds designated to be sold for the purpose of redemption of Certificates
tendered for redemption and not purchased by the Depositor, and for payment of
expenses hereunder, 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 Bonds for such purposes. The net proceeds of any sales of Bonds
from such list representing principal shall be credited to the Principal
Account, and the proceeds of such sales representing accrued interest shall be
credited to the Interest Account.
Neither the Depositor nor the Trustee shall be liable or
responsible in any way for depreciation or loss incurred by reason of any sale
of Bonds made pursuant to this Section 5.2.
Certificates evidencing Units, redeemed pursuant to this
Section 5.2 shall be cancelled by the Trustee and the Units evidenced by such
Certificates shall be terminated by such redemptions.
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SECTION 5.3. Transfer or Interchange of Certificates. A
Certificate may be transferred by the registered holder thereof by presentation
and surrender of such Certificate at the corporate trust office of the Trustee
properly endorsed or accompanied by a written instrument or instruments of
transfer in form satisfactory to the Trustee and executed by the
Certificateholder or his authorized attorney, whereupon a new registered
Certificate or Certificates for the same number of Units executed by the
Trustee and the Depositor will be issued in exchange and substitution therefor.
Certificates issued pursuant to this Indenture are interchangeable for one or
more other Certificates in an equal aggregate number of Units and all
Certificates issued shall be issued in denominations of one unit or any
multiple thereof as may be requested by the Certificateholder. The Trustee may
deem and treat the person in whose name any Certificate shall be registered
upon the books of the Trustee as the owner of such Certificate for all purposes
hereunder and the Trustee shall not be affected by any notice to the contrary,
nor be liable to any person or in any way for so deeming and treating the
person in whose name any Certificate shall be so registered.
A sum sufficient to pay any tax or other governmental charge
that may be imposed in connection with any such transfer or interchange shall
be paid by the Certificateholder to the Trustee. The Trustee may require a
Certificateholder to pay $2.00 for each new Certificate issued on any such
transfer or interchange.
All Certificates cancelled pursuant to this Indenture shall
be disposed of by the Trustee without liability on its part.
SECTION 5.4. Certificates Mutilated, Destroyed, Stolen or
Lost. In case any Certificate shall become mutilated or be destroyed, stolen or
lost, the Trustee shall execute and deliver a new Certificate in exchange and
substitution therefor upon the holder's furnishing the Trustee with proper
identification and indemnity satisfactory to the Trustee, complying with such
other reasonable regulations and conditions as the Trustee may prescribe and
paying such expenses as the Trustee may incur. Any mutilated Certificate shall
be duly surrendered and cancelled before any new Certificate shall be issued in
exchange and substitution therefor. Upon the issuance of any new Certificate a
sum sufficient to pay any tax or other governmental charge and the fees and
expenses of the Trustee may be imposed. Any such new Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust Fund, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
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In the event the Trust Fund has terminated or is in the
process of termination, the Trustee may, instead of issuing a new certificate
in exchange and substitution for any Certificate which shall have become
mutilated or shall have been destroyed, stolen or lost, make the distributions
in respect of such mutilated, destroyed, stolen or lost Certificate (without
surrender thereof except in the case of a mutilated Certificate as provided in
Section 9.2 hereof) if the Trustee is furnished with such security or indemnity
as it may require to save it harmless, and in the case of destruction, loss or
theft of a Certificate, evidence to the satisfaction of the Trustee of the
destruction, loss or theft of such Certificate and of the ownership thereof.
ARTICLE VI
TRUSTEE
SECTION 6.1. 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 herein, the
liabilities of the Trustee are further defined as follows:
(a) all moneys deposited with or received by the Trustee
hereunder shall be held by it without interest in trust as part of the Trust
Fund or the Reserve Account until required to be disbursed in accordance with
the provisions of this Indenture and such moneys 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 moneys in such other manner as shall
constitute the segregation and holding thereof in trust within the meaning of
the Investment Company Act of 1940;
(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 moneys, Bonds or
Certificates 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
the Indenture or otherwise, except by reason of its own willful misconduct, bad
faith or gross negligence; provided, however, that the Trustee shall not in any
event be liable or responsible for any evaluation made by the Evaluator. The
Trustee may construe any of the provisions in this Indenture, insofar as the
same may appear to be ambiguous or inconsistent
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with any other provisions hereof, and any construction of any such provisions
hereof by the Trustee in good faith shall be binding upon the parties hereto;
(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 the Evaluator, or for the form,
character, genuineness, sufficiency, value or validity of any Bonds or for or
in respect of the validity or sufficiency of the Certificates or of the due
execution thereof by the Depositor, and the Trustee shall in no event assume or
incur any liability, duty or obligation to any Certificateholder 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 or the Evaluator;
(d) the Trustee shall not be under any 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 of the Trustee from such actions shall be
deductible from and a charge against the Interest and Principal Accounts. The
Trustee shall in its discretion undertake such action as it may deem necessary
at any and all times to protect the Trust Fund and the rights and interests of
the Certificate- 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 Interest and
Principal Accounts, and the payment of such costs and expenses shall be secured
by a lien on the Trust Fund prior to the interests of the Certificateholders;
(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 been selected with reasonable care. 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 report of such accountants shall be furnished by the Trustee
to the Certificateholders upon request. The Trustee shall be fully protected in
respect of any action under this Agreement taken, or suffered, in good faith by
the Trustee, in accordance with the opinion of its counsel. The fees and
expenses charged by such agents, attorneys, accountants or auditors shall
constitute an expense of the Trustee reimbursable from the Interest and
Principal Accounts as set forth in Section 6.4 hereof;
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(f) upon the occurrence of any of the events stated in
Section 8.1(a) or Section 8.3 hereof, the Trustee may:
(1) appoint a successor depositor (having a net worth,
determined in accordance with generally accepted accounting principles, of at
least $1,000,000) 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 semi-annually, at rates deemed by the Trustee to be reasonable
under the circumstances, by deduction from the Interest Account, or, to the
extent funds are not available in such Account, from the Principal Account 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 any successor provision,
or
(2) if no depositor or successor depositor has been
appointed, terminate this Agreement and the trust created hereby, and liquidate
the Trust Fund in the manner provided in Section 9.3;
(g) the Trustee shall notify all Certificateholders if the
value of the Trust Fund as shown by any evaluation by the Trustee pursuant to
Section 5.1 hereof shall be less than $2,000,000 or less than 20% of the value
of the Trust Fund as of the Date of Deposit and, after such notice is given,
this Indenture and the trust created hereby may be terminated and the Trust
Fund liquidated, all in the manner provided in Section 9.3, (i) by the consent
of 66 2/3% of the Units at the time outstanding under this Indenture or (ii) by
the Trustee, in its discretion, provided, however, upon written notification to
the Certificateholders of their opportunity to object to such termination and
to the Depositor, at least 33 1/3% of the Units at the time outstanding under
this Indenture do not instruct the Trustee not to terminate the trust and
liquidate the Trust Fund;
(h) in no event shall the Trustee be liable for any taxes or
other governmental charges imposed upon or in respect of the Bonds or upon the
interest thereon or upon it as Trustee hereunder or upon or in respect of the
Trust Fund 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 and audit 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 Interest and Principal Accounts of the Trust Fund,
except as otherwise provided in Section 6.1(e) and the payment of such amounts
so paid by the Trustee shall be secured by a lien on the Trust Fund prior to
the interests of the Certificateholders;
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(i) the Trustee, except by reason of its own gross
negligence, bad faith or willful misconduct, shall not be liable for any action
taken, omitted or suffered to be taken by it or believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(j) the Trustee is authorized and empowered to execute and
file on behalf of the Trust Fund 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 Fund in
such states by the Depositor; and
(k) no payment to the Depositor or to any principal
underwriter (as defined in the Investment Company Act of 1940) for the Trust or
to any affiliated person (as defined in the Investment Company Act of 1940) or
agent of a Depositor or such underwriter shall be allowed the Trustee as an
expense by the Trustee except for payment of such reasonable amounts as the
Securities and Exchange Commission may prescribe as compensation for performing
bookkeeping and other administrative services of a character normally performed
by the Trustee. Notwithstanding any provision of this Agreement to the
contrary, the Trustee is authorized and empowered, subject to the approval of
the Depositor and its counsel, to enter into a servicing arrangement or
arrangements as it deems necessary or appropriate for the performance by a
service organization (which may be a corporation under common ownership with
the Trustee) of bookkeeping, accounting, reporting, distribution and other
activities and duties allocated to it under this Agreement. The Trustee is
further authorized and empowered, subject to the approval of the Depositor and
its counsel, to amend, supplement or terminate any such servicing arrangement
or arrangements made pursuant to this provision.
SECTION 6.2. Books, Records and Reports. The Trustee shall
keep proper books of record and account of all the transactions under this
Indenture at its corporate trust office including a record of the name and
address of, and the Certificates issued by the Trust Fund and held by every
Certificateholder, and such books and records shall be open to inspection by
any Certificateholder at all reasonable times during the usual business hours,
and such books and records shall be made available to the Depositor upon the
request of the Depositor including, but not limited to, a record of the name
and address of every Certificateholder.
Unless the Depositor otherwise directs, the Trustee shall
cause audited statements as to the assets and income of the Trust to be
prepared on an annual basis by independent public accountants selected by the
Depositor, provided, however, that if the Depositor is then making a market for
units of the Trust, the
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Depositor shall bear the cost of such audit to the extent that it exceeds
$.50/unit of approximately $1,000 initial value (or such proportionate amount
in the case of units of greater or lesser initial value). In the event that the
Depositor is not making a market for the Units of a Trust, then the Depositor
may instruct the Trustee not to prepare such statements. Such audited statement
will be made available to Certificateholders upon request.
To the extent permitted under the Investment Company Act of
1940 as evidenced by an opinion of counsel to the Depositor, the Trustee shall
pay, or reimburse to the Depositor or others, the costs of the preparation of
documents and information with respect to each Trust required by law or
regulation in connection with the maintenance of a secondary market in units of
each Trust. Such costs may include but are not limited to accounting and legal
fees, blue sky registration and filing fees, printing expenses and other
reasonable expenses related to documents required under Federal and state
securities laws.
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.
SECTION 6.3. Indenture and List of Bonds on File. The Trustee
shall keep a certified copy in duplicate original of this Indenture on file at
its corporate trust office available for inspection at all reasonable times
during the usual business hours by any Certificateholder, together with a
current list of the Bonds.
SECTION 6.4. Compensation. For services performed under this
Indenture, the Trustee shall be paid an amount set forth in Part II of the
applicable Reference Trust Agreement; provided, however, if interest on any
bonds in the Trust Fund does not commence accruing to the benefit of
Certificateholders on the First Settlement Date due to the fact that any
contract to purchase such Bond settles after the First Settlement Date, then
the compensation of the Trustee hereunder during the first year of the Trust
Fund shall be adjusted downward to reflect the amount of interest that would
have accrued on such Bond during the period from the First Settlement Date to
the settlement on such contract to purchase. Such compensation shall be payable
in monthly installments equal to one-twelfth of the estimated annual
compensation and shall be computed on the basis of the greatest amount of such
principal amount of Bonds in the Trust Fund 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
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hereof, in consumer prices for services as measured by the United States
Department of Labor Consumer Price Index entitled "All Services Less Rent." The
consent or concurrence of any Certificateholder hereunder 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 shall charge the
Interest and Principal Accounts for any and all expenses, including the fees of
counsel which may be retained by the Trustee in connection with its activities
hereunder, and disbursements incurred hereunder and any extraordinary services
performed by the Trustee hereunder. The Trustee shall be indemnified and held
harmless against any loss or liability accruing to it without gross negligence,
bad faith or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of this Trust Fund, including the costs
and expenses (including counsel fees) of defending itself against any claim or
liability in the premises. If the cash balances in the Interest and Principal
Accounts shall be insufficient to provide for any expenses of the Trust, the
Trustee shall have the power to sell, in accordance with Sections 3.7 and 5.2
(i) Bonds from the current list of Bonds designated to be sold pursuant to
Sections 3.7 and 5.2 hereof, or (ii) if no such Bonds have been so designated,
such Bonds as the Trustee deems appropriate 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 6.4. The Trustee shall not be liable or responsible in
any way for depreciation or loss incurred by reason of any sale of Bonds made
pursuant to this Section 6.4. Any moneys payable pursuant to this Section shall
be secured by a lien on the Trust Fund prior to the interest of the
Certificateholders.
SECTION 6.5. 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 trust created by this Indenture,
by executing an instrument in writing resigning as Trustee of such trust and
filing the same with the Depositor and mailing a copy of a notice of
resignation to all Certificate- holders then of record, not less than sixty
days before the date specified in such instrument when, subject to Section
6.5(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. In case 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
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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 the Depositor shall deem it to
be in the best interests of the Certificateholders, 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 Certificateholder 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 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 Depositor and 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 them
transferring 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 Bonds and moneys 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
Bonds and moneys 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 and 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,
shall be the successor trustee under this Indenture without the execution or
filing of
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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;
(e) any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in subsection
(b) hereof.
SECTION 6.6. Qualifications of Trustee. The Trustee shall be
a corporation organized and doing business under the laws of the United States
or the State of New York, 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 $5,000,000 and having its principal
office and place of business in the Borough of Manhattan, the City and State of
New York.
ARTICLE VII
RIGHTS OF CERTIFICATEHOLDERS
SECTION 7.1. Beneficiaries of Trust. By the purchase and
acceptance or other lawful delivery and acceptance of any Certificate the
Certificateholder shall be deemed to be a beneficiary of the trust created by
this Indenture and vested with all right, title and interest in the Trust Fund
to the extent of the Unit or Units set forth and evidenced by such Certificate,
subject to the terms and conditions of this Indenture and of such Certificate.
SECTION 7.2. Rights, Terms and Conditions. In addition to the
other rights and powers set forth in the other provisions and conditions of
this Indenture, the Certificateholders shall have the following rights and
powers and shall be subject to the following terms and conditions:
(a) a Certificateholder may at any time tender his
Certificate or Certificates to the Trustee for redemption in
accordance with Section 5.2;
(b) the death or incapacity of any Certificateholder 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 of competent jurisdiction for a partition or winding up
of the Trust Fund, nor otherwise affect the rights, obligations and liabilities
of the
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parties hereto or any of them. Each Certificateholder 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 Bonds or moneys
from time to time received, held and applied by the Trustee hereunder; and
(c) except as otherwise provided herein, no Certifi-
cateholder shall have any right to vote or in any manner otherwise control the
operation and management of the Trust Fund or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of any association; nor shall any
Certificateholder 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 8.1. Discharge. The following provisions
shall provide for the discharge of the Depositor and the
liability of the Depositor in the event of the discharge of the
Depositor:
(a) in the event that the 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 thirty
days after notice to the Depositor from the Trustee or if the Depositor shall
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 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
(b) notwithstanding the discharge of the Depositor in
accordance with this Section 8.1, or the resignation of the Depositor pursuant
to Section 8.3, such Depositor shall continue to be fully liable in accordance
with the provisions hereof in respect of action taken or refrained from under
this Indenture by the Depositor before the date of such discharge, as fully and
to the same extent as if no discharge had occurred.
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SECTION 8.2. Successors. The covenants, provisions and
agreements herein contained shall in every case be binding upon any successor
to the Depositor and shall be binding upon the General Partners of any
successor depositor which may be a partnership and upon the capital interest of
the limited partners of any successor depositor which may be a partnership. In
the event of the death, resigning or withdrawal of any partner of the Depositor
or of any successor 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 or
successor 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 the Depositor to a successor corporation or partnership as
permitted by the next following sentence, such Depositor shall be relieved of
all further liability under this Agreement. The 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
Agreement.
SECTION 8.3. Resignation. If at any time the Depositor shall
desire to resign its position as Depositor hereunder, the Depositor may resign
by delivering to the Trustee an instrument executed by such resigning Depositor
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; provided, however, that concurrently with or
subsequent to such resignation the Trustee may appoint a new Depositor to
assume the duties of the resigning Depositor by an instrument executed by the
Trustee and the new Depositor. Such new Depositor shall not be under any
liability hereunder for occurrences or omissions prior to the execution of such
instrument.
SECTION 8.4. Exclusions from Liability. The following
provisions shall provide for certain exclusions from the
liability of the Depositor:
(a) no Depositor shall be under any liability to the Trust
Fund or the Certificateholders for any action taken or for refraining from the
taking of any action in good faith pursuant to this Indenture, or for errors in
judgment or liable or responsible in any way for depreciation or loss incurred
by reason of the sale of any Bonds; provided, however, that this provision
shall not protect the Depositor against any liability to which it would
otherwise be subject by reason of its own willful misconduct, bad faith or
gross negligence. 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
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executed and submitted to it by the Trustee, bond counsel, the Evaluator or any
other person. The Depositor shall in no event be deemed to have assumed or
incurred any liability, duty, or obligation to any Certificateholder or the
Trustee other than as expressly provided for herein or arising as a matter of
law;
(b) the Trust shall pay and hold the Depositor harmless from
and against any loss, liability or expense incurred in acting as Depositor of
the Trust other than reason of willful misconduct, bad faith or gross
negligence in the performance of its duties, including the costs and expenses
of the defense against any claim or liability in the premises. The Depositor
shall not be under any obligation to appear in, prosecute or defend any legal
action which in their opinion may involve them 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 Agreement
and the rights and duties of the parties hereto and the interest of the
Certificateholders hereunder; and
(c) none of the provisions of this Agreement shall be deemed
to protect or purport to protect the Depositor against any liability to the
Trust Fund or to the Certificateholders to which the Depositor would otherwise
be subject by reason of its own willful misconduct, bad faith or gross
negligence.
SECTION 8.5. Annual Fee. For services performed under this
Indenture, the Depositor will be paid an annual fee, against a statement
therefor submitted to the Trustee annually on or before December 1 of each
year, in an amount set forth in Part II of the applicable Reference Trust
Agreement as reimbursement of the costs incurred by the Depositor in rendering
its portfolio supervisory services with respect to the portfolio of the Trust
Fund unless such fee shall not be permitted by any governmental regulatory
agency having jurisdiction to regulate the payments of such fees. This fee may
exceed the actual costs of supervising the portfolio of this Trust but the
total amount of fees received under this Section 8.5 by the Depositor in any
calendar year, together with similar fees received by them in connection with
other guaranteed series of Glickenhaus Special Situations Trust in such
calendar year, shall not exceed the aggregate cost of supplying such services.
The Depositor will calculate the actual costs of its services by keeping
records of the amount of time spent by each employee of the Depositor working
on the portfolio supervision and determining what portion of such employee's
salary to allocate to such services. The Depositor shall also keep records of
the appropriate allocation of the costs of periodicals, computer time,
communications expenses and other related expenses.
The Depositor's annual fee may be increased from time
to time by amounts not exceeding the proportionate increase
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during the period from the date of this Indenture 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 U.S.
Department of Labor or, if such index is no longer published, a similar index.
ARTICLE IX
ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS
SECTION 9.1. Amendments. This Indenture may be amended from
time to time by the parties hereto or their respective successors, without the
consent of any of the Certifi- cateholders (a) to cure any ambiguity or to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provision contained herein, (b) to change any
provision hereof as may be required by the Securities and Exchange Commission,
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 Certificateholders; and this
Indenture may also be amended from time to time by the parties hereto or their
successors with the consent of the holders of Certificates evidencing 66 2/3%
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 hereof or of modifying in any manner the rights of the holders of
Certificates of the Trust Fund; provided, however, that the parties hereto may
not amend this Indenture without the consent of 100% of the Certificateholders
so as to (i) reduce the aforesaid percentage of Units the holders of which are
required to consent to certain amendments and (ii) reduce the interest in the
Trust Fund represented by Units evidenced by any Certificate; provided,
however, that the parties hereto may not amend this Indenture so as to (1)
increase the number of Units issuable hereunder above the aggregate number of
Units set forth in the applicable Reference Trust Agreement except as provided
in Section 5.4 hereof or such lesser amount as may be outstanding at any time
during the term of this Indenture or (2) subject to Section 3.8 and 3.14,
permit the deposit or acquisition hereunder of obligations or other securities
either in addition to or in substitution for any of the Bonds.
It shall not be necessary for the consent of Certifi-
cateholders under this Section 9.1 to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
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Promptly after the execution of any such amendment the
Trustee shall furnish written notification to all holders of then outstanding
Certificates of the substance of such amendment.
SECTION 9.2. Termination. This Indenture and the trust
created hereby shall terminate upon the maturity, redemption, sale or other
disposition, as the case may be, of the last Bond held hereunder unless sooner
terminated as hereinbefore specified and may be terminated at any time by the
written consent of 100% of the Certificateholders; provided, that in no event
shall this Trust continue beyond the Mandatory Termination Date set forth in
Part II of the applicable Reference Trust Agreement. Written notice of any
termination, specifying the time or times at which the Certificateholders may
surrender their Certificates for cancellation and the date, determined by the
Trustee, upon which the transfer books of the Trust, maintained pursuant to
Section 6.1, shall be closed, shall be given by the Trustee to each
certificateholder at the address appearing on the registration books of the
Trustee. Within a reasonable period of time after such termination the Trustee,
shall, subject to any applicable provision of law, fully liquidate the Bonds
then held, if any; provided, however, that in connection with any such
liquidation it shall not be necessary for the Trustee to dispose of any Bond or
Bonds if retention of such Bond or Bonds, until due, shall be deemed to be in
the best interest of Certificate- holders, including, but not limited to,
situations in which a Pre-Insured Bond (or Bonds), which matures after the
Mandatory Termination Date, reflects a deteriorated market price resulting from
a fear of default, and shall:
(a) deduct from the Interest Account or, to the extent that
funds are not available in such Account, from the Principal Account, and pay to
itself individually an amount equal to the sum of (1) its accrued compensation
for its ordinary recurring services, (2) any compensation due it for its
extraordinary services and (3) any costs, expenses or indemnities as provided
herein;
(b) deduct from the Interest Account, or to the extent that
funds are not available in such Account, from the Principal Account, and pay
any unpaid fees and expenses of the Evaluator and of bond counsel, if any, as
directed and certified to by the Depositor and of any successor Depositor
pursuant to Section 8.3;
(c) deduct from the Interest Account or the Principal Account
any amounts which may be required to be deposited in the Reserve Account 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;
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(d) distribute to each Certificateholder, upon surrender for
cancellation of his certificate or Certificates, such holder's pro rata share
of the balance of the Interest Account;
(e) distribute to each Certificateholder, upon surrender for
cancellation of his Certificate or Certificates, such holder's pro rata share
of the balance of the Principal Account and on the conditions set forth in
Section 3.4, the Reserve Account; and
(f) together with such distribution to each Certifi-
cateholder as provided for in (d) and (e), furnish to each such
Certificateholder a final distribution statement as of the date of the
computation of the amount distributable to Certificate- holders, setting forth
the data and information in substantially the form and manner provided for in
Section 3.6 hereof.
The amounts to be so distributed to each Certificate- holder
shall be that pro rata share of the balance of the total Interest and Principal
Accounts as shall be represented by the Units therein evidenced by the
outstanding Certificate or Certificates held of record by such
Certificateholder.
The Trustee shall be under no liability with respect to
moneys held by it in the Interest, 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.
In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the time
specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the liquidation distribution with
respect thereto. If within one year after the second notice all the
Certificates shall not have been surrendered for cancellation, the Trustee may
take steps, or may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their Certificates and the
cost thereof shall be paid out of the moneys and other assets which remain in
trust hereunder.
No distribution of funds constituting long-term capital gains
shall be in contravention of Section 19(b) of the Investment Company Act of
1940, as from time to time amended, and applicable orders, rules and
regulations thereunder.
SECTION 9.3. Construction. This Indenture is
delivered in the State of New York, and all laws or rules of
construction of such State shall govern the rights of the parties
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hereto and the Certificateholders and the interpretation of the
provisions hereof.
SECTION 9.4. Registration of Units and Trust Fund. The
Depositor agrees and undertakes on its own part to register the Units and the
Glickenhaus Special Situations Trust with the Securities and Exchange
Commission or other applicable governmental agency pursuant to applicable
Federal or State statutes, if such registration shall be required, and to do
all things that may be necessary or required to comply with this provision
during the term of the Trust Fund created hereunder, and the Trustee shall not
incur any liability or be under any obligation or expense in connection
therewith.
SECTION 9.5. 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 Glickenhaus &
Co., 0 Xxxx 00xx Xxxxxx, 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, demand, direction or instruction to be given to the Trustee shall be in
writing and shall be duly given if mailed or delivered to the corporate trust
office of the Trustee, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
UIT Administration, or such other address as shall be specified to the other
parties hereto by the Trustee in writing. Any notice, demand, direction or
instruction to be given to Xxxxxx Data Corporation shall be in writing and
shall be duly given if mailed or delivered to Xxxxxx Data Corporation,
Attention: Vice President, Municipal Bond Department, 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or such other address as shall be specified to the other
parties hereto by the Evaluator in writing. Any notice to be given to the
Certificateholders shall be duly given if mailed or delivered to each
Certificateholder at the address of such holder appearing on the registration
books of the Trustee.
SECTION 9.6. 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 of the
Certificates or the rights of the holders thereof.
SECTION 9.7. Dissolution of Depositor not to
Terminate. The dissolution of the Depositor for any cause
whatsoever shall not operate to terminate this Indenture insofar
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as the duties and obligations of the Trustee and Evaluator are
concerned.
IN WITNESS WHEREOF, the Depositor has caused this Trust
Indenture and Agreement to be executed for Glickenhaus & Co., by one of its
General Partners with its corporate seals to be hereto affixed and attested to
by one of its Secretaries or Assistant Secretaries; the Bank 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 to by one of its Assistant Treasurers or Vice Presidents
and Xxxxxx Data Corporation has caused this Trust Indenture and Agreement to be
executed by one of its Vice Presidents and Assistant Vice Presidents and its
corporate seal to be hereto affixed and attested to by one of its Vice
Presidents; all as of the day, month and year first above written.
[signatures and acknowledgments appear on separate pages)
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GLICKENHAUS & CO.
By: /s/ Xxxxx X. Xxxx
Attorney-in-Fact
for each of the
General Partners
STATE OF NEW YORK )
) ss.:
COUNTY NEW YORK )
I, Xxxxx XxXxxxxxx, a Notary Public in and for the said
County in the State aforesaid, do hereby certify that personally known to me to
be the same whose name is subscribed to the foregoing instrument, appeared
before me this day in person, and acknowledged that he signed and delivered the
said instrument as his free and voluntary act as Attorney-in-Fact for each of
the General Partners, and as the free and voluntary act of said GLICKENHAUS &
CO., for the uses and purposes therein set forth.
GIVEN, under my hand and notarial seal this 28th day of
October, 1996.
/s/ Xxxxx XxXxxxxxx
Notary Public
[SEAL]
My commission expires: Xxxxx XxXxxxxxx
Notary Public State of New York
No. 01MC5044884
Qualified New York County
Commission Expires June 5, 1997
406909.1
THE BANK OF NEW YORK, Trustee
By: /s/ Xxxxxxx Xxxxx
Vice President
ATTEST:
By: /s/ Xxxxxxx Xxxxxx
(CORPORATE SEAL)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, Xxxxxxx X. Xxxxx, a Notary Public in and for the said
County in the State aforesaid, do hereby certify that Xxxxxxx Xxxxx and Xxxxxxx
Xxxxxx, personally known to me to be the same persons whose names are
subscribed to the foregoing instrument and personally known to me to be a Vice
President and an Assistant Vice President, respectively, of The Bank of New
York appeared before me this day in person, and acknowledge that they signed,
sealed with the corporate seal of The Bank of New York and delivered the said
instrument as their free and voluntary act as such Vice President and Assistant
Vice President, respectively, and as the free and voluntary act of said The
Bank of New York for the uses and purposes therein set forth.
GIVEN, under my hand and notarial seal this 8th day of
October, 1996.
/s/ Xxxxx XxXxxxxxx
Notary Public
(SEAL)
My commission expires: Xxxxxxx X. Xxxxx, Xx.
Notary Public, State of New York
No. 00-0000000
Qualified in Queens County
Commission Expires: April 30, 1997
406909.1
XXXXXX DATA CORPORATION,
Evaluator
By: /s/ Xxxxx X. Xxxxxxx
Vice President
ATTEST:
By: /s/ Xxxxxxx Xxxxxxxx
(CORPORATE SEAL)
406909.1
