Exhibit 4.a
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NATIONAL EQUITY TRUST
for all series formed on or subsequent to the effective date
specified below to which this Trust Indenture and Agreement is
applicable
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TRUST INDENTURE AND AGREEMENT
Among
PRUDENTIAL INVESTMENT MANAGEMENT SERVICES LLC
As Depositor
THE BANK OF NEW YORK
As Trustee
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Dated: August 8, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions......................................................5
ARTICLE II
DEPOSIT OF SECURITIES; ACCEPTANCE OF TRUST
Section 2.01. Deposit of Securities............................................9
Section 2.02. Acceptance of Trust.............................................10
Section 2.03. Issue of Units..................................................10
Section 2.04. Uncertificated Units............................................10
Section 2.05. Deposit of Additional Securities................................10
Section 2.06. Register of Units...............................................13
ARTICLE III
ADMINISTRATION OF TRUST
Section 3.01. Initial Cost....................................................13
Section 3.02. Income Account..................................................14
Section 3.03. Principal Account...............................................14
Section 3.04. Reserve Account.................................................14
Section 3.05. Distribution....................................................15
Section 3.06. Distribution Statements.........................................18
Section 3.07. Replacement Securities..........................................20
Section 3.08. Sale of Securities..............................................21
Section 3.09. Notice and Sale by Trustee......................................22
Section 3.10. Refunding Securities............................................22
Section 3.11. Notice of Actions...............................................23
Section 3.12. Extraordinary Distributions.....................................23
Section 3.13. Extraordinary Event - Security Retention and Voting.............24
Section 3.14. Deferred Sales Charge...........................................24
ARTICLE IV
EVALUATION OF SECURITIES
Section 4.01. Evaluation of Securities........................................25
Section 4.02. Tax Reports.....................................................26
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Section 4.03. Liability of the Trustee........................................26
ARTICLE V
TRUST EVALUATION, REDEMPTION,
TRANSFER OF UNITS
Section 5.01. Trust Evaluation................................................27
Section 5.02. Redemptions by Trustee; Purchases by Depositor..................28
Section 5.03. Redemption Upon Termination.....................................31
Section 5.04. Transfer of Units...............................................32
ARTICLE VI
TRUSTEE
Section 6.01. General Definition of Trustee's Liabilities, Rights and Duties..33
Section 6.02. Books, Records and Reports......................................37
Section 6.03. Indenture and List of Securities on File........................38
Section 6.04. Compensation of Trustee.........................................38
Section 6.05. Removal and Resignation of Trustee; Successor...................39
Section 6.06. Qualification of Trustee........................................41
Section 6.07. Trustee's Response to Inquiries.................................41
Section 6.08. Waiver of Liens.................................................42
ARTICLE VII
RIGHTS OF UNIT HOLDERS
Section 7.01. Beneficiaries of Trust..........................................42
Section 7.02. Rights, Terms and Conditions....................................42
ARTICLE VIII
DEPOSITOR
Section 8.01. Liabilities; Power of Attorney..................................43
Section 8.02. Discharge.......................................................44
Section 8.03. Successors......................................................45
Section 8.04. Resignation.....................................................45
Section 8.05. Additional Depositors...........................................46
Section 8.06. Exclusions from Liability.......................................46
Section 8.07. Compensation....................................................47
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Page
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ARTICLE IX
ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS
Section 9.01. Amendments without the Consent of Unit Holders..................47
Section 9.02. Notice of Amendment.............................................48
Section 9.03. Termination.....................................................48
Section 9.04. Construction....................................................50
Section 9.05. Written Notice..................................................50
Section 9.06. Severability....................................................51
Section 9.07. Dissolution of Depositor Not To Terminate.......................51
Section 9.08. Name............................................................51
EXECUTION.......................................................................
ACKNOWLEDGMENTS.................................................................
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This Table of Contents does not constitute part of the Indenture.
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TRUST INDENTURE AND AGREEMENT dated August 8, 2001 between
PRUDENTIAL INVESTMENT MANAGEMENT SERVICES LLC, as Depositor, and THE BANK OF NEW
YORK, as Trustee.
WITNESSETH that:
WHEREAS, the Depositor and the Trustee are entering into this
Trust Indenture and Agreement for the purpose of establishing certain of the
terms, covenants and conditions of the National Equity Trust series and each
subsequent Series which may be established from time to time hereafter,
incorporating by reference the terms hereof; and
WHEREAS, for the National Equity Trust, and each Series of the
National Equity Trust, to which this Trust Indenture and Agreement is
applicable, the Depositor and the Trustee shall execute a separate Reference
Trust Agreement incorporating by reference this Trust Indenture and Agreement
and effecting any amendment, supplement or variation from or to such
incorporation by reference with respect to the related series, and specifying
for that series: (i) the Securities deposited in trust and the number of Units
delivered by the Trustee in exchange for the Securities pursuant to Section
2.03; (ii) the initial fractional undivided interest represented by each Unit in
each Trust; (iii) the first Settlement Date; (iv) the first Computation Day; (v)
the first and subsequent Distribution Date(s); (vi) the first and subsequent
Record Date(s); (vii) the name of the Depositor; (viii) the Termination Date;
(ix) the Purchase Rights and (x) any other change or addition contemplated or
permitted by this Trust Indenture and Agreement; and
WHEREAS, the Depositor will acquire and, concurrently with the
execution and delivery of the appropriate Reference Trust Agreement, will
deposit in trust with the Trustee the Securities to be listed in the Schedule
thereto, all to be held by the Trustee in trust upon the terms and conditions
hereinafter set forth as amended, supplemented or varied by such Reference Trust
Agreement, for the use and benefit of all registered holders of units of
fractional undivided interest in the Trust to which such Reference Trust
Agreement relates; and
WHEREAS, the Depositor will enter into an agreement which will
grant a Purchase Right with regard to each Security and will deposit each
Security, subject to such Purchase Right, into the Trust; and
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WHEREAS, concurrently with the receipt of the aforesaid
deposit, the Trustee will record on its books the ownership by the Depositor
thereof of units of fractional undivided interest in such Securities and in the
Income Account and the Principal Account maintained under this Indenture in the
manner hereinafter provided (which units of fractional undivided interest so
recorded respectively will represent in the aggregate 100% of the beneficial
interest established hereby in such Securities, Income Account and Principal
Account) and if the Sponsor so directs, will execute in the name of the
Depositor thereof a certificate or certificates representing the aggregate
number of Units specified in such Reference Trust Agreement and deliver same to
such Depositor.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the Depositor and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions: Whenever used in this Indenture,
the following words and phrases, unless the context clearly indicates otherwise,
shall have the following meanings:
(1) "Additional Purchase Rights" shall mean such Purchase
Rights (as defined herein) which Additional Securities shall be subject
to as are listed in Supplementary Schedules to the Reference Trust
Agreement.
(2) "Additional Securities" shall mean such Securities (as
defined herein) as are listed in Supplementary Schedules of the
Reference Trust Agreement and which have been deposited to effect an
increase over the number of Units initially specified in Part II of the
Reference Trust Agreement.
(3) "Additional Units" shall mean such Units (as defined
herein) as are issued in respect of Additional Securities.
(4) "Basic Agreement" shall mean this Trust Indenture and
Agreement dated as indicated on the cover page hereof as originally
executed, or if amended as hereinafter provided, as so amended,
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exclusive of the terms contained in any related Reference Trust
Agreement.
(5) "Business Day" shall mean any day other than a Saturday
or Sunday or other day on which the New York Stock Exchange is closed
for trading, a legal holiday in the City of New York, or a day on which
banking institutions are authorized by law to close.
(6) "Computation Day" shall have the meaning assigned to it
in Part II of the Reference Trust Agreement.
(7) "Contract Securities" shall mean Securities which are to
be acquired by the Trust pursuant to contracts, including (i)
Securities listed in the Schedule to the Reference Trust Agreement and
(ii) Securities which the Depositor has contracted to purchase for the
Trust pursuant to Sections 2.05 and 3.07.
(8) "Deferred Sales Charge' shall mean any deferred sales
charge payable in accordance with the provisions of Section 3.14
hereof, as set forth in the prospectus for a Trust.
(9) "Depositor" of the Trust shall have the meaning assigned
to it in Part II of the Reference Trust Agreement.
(10) "Distribution Agency Agreement" shall mean the
Distribution Agency Agreement dated the date of this Indenture among
the Trustee, the Depositor and the Distribution Agent.
(11) "Distribution Agent" shall mean the Distribution Agent
appointed in the Distribution Agency Agreement, or its successor as
appointed pursuant to the Distribution Agency Agreement.
(12) "Distribution Date" shall have the meaning assigned to
it in Part II of the Reference Trust Agreement.
(13) "Evaluation Time" shall mean the close of trading on the
New York Stock Exchange, presently 4:00 p.m. or such other time as is
designated as the Evaluation Time in the prospectus for a Trust.
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(14) "Indenture" shall mean the Basic Agreement, as further
amended, supplemented or varied by the Reference Trust Agreement.
(15) "Purchase Right" shall mean the option of a holder of
the right to acquire a Security at a specified price and on a specified
date each as set forth in the Prospectus for a Trust.
(16) "Prospectus" shall mean the prospectus relating to a
Trust in the form first used to confirm sales of Units of such Trust.
(17) "Record Date" shall have the meaning assigned to it in
Part II of the Reference Trust Agreement.
(18) "Reference Trust Agreement" shall mean a supplement to
the Basic Agreement, the purpose of which shall be to amend, supplement
and/or vary certain of the terms contained in the Basic Agreement. The
Reference Trust Agreement, together with the Basic Agreement to the
extent that such Reference Trust Agreement incorporates it by
reference, defines all the terms, rights and duties relevant to the
series of National Equity Trust series, to which such Reference Trust
Agreement relates.
(19) "Replacement Security" shall mean a Security purchased
by the Trustee pursuant to Section 3.07 hereof.
(20) "Securities" shall mean such common stock and other
securities (including for all purposes hereof "when-issued" and/or
"regular way" contracts, if any, for the purchase thereof evidenced by
the purchasing broker's confirmation of, or list of its confirmations
of, such contracts and a certified check or checks and/or an
irrevocable letter or letters of credit in the amount required for such
purchase) as are (i) deposited in irrevocable trust and listed in the
Schedule or Supplementary Schedules to the Reference Trust Agreement
and (ii) received in exchange or substitution for any Securities
pursuant to Section 3.07 hereof or pursuant to Section 3.13 hereof or
acquired pursuant to Section 2.05 hereof, as may from time to time be
acquired and continue to be held as a part of the Trust to which such
Reference Trust Agreement relates.
(21) "Special Security" shall have the meaning assigned to it
in Section 3.07 hereof.
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(22) "Termination Date" shall mean the date set forth in Part
II of the Reference Trust Agreement.
(23) "Trust" shall mean the trust created by this Indenture
in conjunction with a Reference Trust Agreement, which shall be
denominated as indicated in Part II of the Reference Trust Agreement
relating to such Trust, and which shall consist of the Securities held
pursuant and subject to this Indenture together with all dividends
thereon, received but undistributed, any undistributed cash realized
from the sale, redemption or liquidation thereof, such amounts as may
be on deposit in the Reserve Account hereinafter established and all
other property and rights to which Unit Holders may be entitled under
the provisions of this Indenture.
(24) "Trustee" shall mean The Bank of New York, or any
successor trustee as hereinafter provided.
(25) "Unit" shall mean the fractional undivided interest in
and ownership for the Trust which shall be initially equal to the
fraction specified for the Trust in Part II of the Reference Trust
Agreement, the denominator of which fraction shall be decreased by the
number of any such Units redeemed as provided in Sections 5.02 and 5.03
and increased by the number of any Additional Units as provided in
Section 2.06 or revised as provided in Section 2.03.
(26) "Unit Holder" shall mean the registered holder of any
Unit as recorded on the registration books of the Trustee, his legal
representatives and heirs and the successors of any corporation,
partnership or other legal entity which is a registered holder of any
Unit and as such shall be deemed a beneficiary of the Trust created by
this Indenture to the extent of his pro rata share thereof.
(27) 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.
(28) Words importing the singular number shall include the
plural number in each case and vice versa and words importing persons
shall include corporations and associations, as well as natural
persons.
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(29) "Portfolio Supervisor" of the Trust shall have the
meaning assigned to it in Part II of the Reference Trust Agreement.
ARTICLE II
DEPOSIT OF SECURITIES; ACCEPTANCE OF TRUST
Section 2.01. Deposit of Securities: The Depositor,
concurrently with the execution and delivery of the applicable Reference Trust
Agreement, has deposited with the Trustee in trust the Securities listed in the
Schedule or Schedules attached to the Reference Trust Agreement in bearer form
or duly endorsed in blank or accompanied by all necessary instruments of
assignment and transfer in proper form to be held, administered and applied by
the Trustee as herein provided and/or cash (or a letter of credit in lieu of
cash) with written instructions to the Trustee to purchase one or more of such
Securities which cash (or cash in an amount equal to the face amount of the
letter of credit), to the extent not used by the Trustee to purchase such
Securities within the 90-day period following the first deposit of Securities in
the Trust, shall be distributed to Unit Holders on the Distribution Date next
following such 90-day period or such earlier date as the Depositor and the
Trustee determine. Concurrent with the deposit of Securities pursuant to this
Section 2.01, the Depositor has transferred its obligation under the Purchase
Right to the Trustee which Purchase Right will be reflected in an account to be
established by the Trustee. In the event that the purchase of Securities
represented by "when-issued" and/or "regular way" contracts shall not be
consummated in accordance with said contracts, the Trustee shall credit to the
Principal Account pursuant to Section 3.03 hereof the cash or cash equivalents
(including such portion of any letter of credit applicable to such contracts)
deposited by the Depositor for the purpose of such purchase. Such monies, unless
invested in substitute Securities in accordance with Section 3.07 hereof, shall
be distributed to Unit Holders pursuant to Section 3.05 hereof on the second
Distribution Date following the failure of consummation of such purchase or such
earlier date as the Depositor and the Trustee determine. The Depositor shall
deliver the Securities listed on said Schedule or Schedules to the Trustee which
were not actually delivered concurrently with the execution and delivery of the
Reference Trust Agreement within 90 days after said execution and delivery or,
if Section 3.07 applies, within such shorter period as is specified in Section
3.07.
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The Trustee is irrevocably authorized hereby to effect
registration of transfer of the Securities in fully registered form in the name
of the Trustee or its nominee.
Section 2.02. Acceptance of Trust: The Trustee hereby accepts
the Trust created by this Indenture for the use and benefit of the Unit Holders
in the Trust, subject to the terms and conditions of this Indenture.
Section 2.03. Issue of Units: By executing the Reference Trust
Agreement and receipt for deposited property, the Trustee will thereby
acknowledge receipt of the deposit relating to the Trust to which such Reference
Trust Agreement relates, referred to in Section 2.01, and simultaneously with
the receipt of said deposit, will record on its books for the account of the
Depositor the aggregate number of Units of the Trust in exchange therefor as
specified in Part II of the Reference Trust Agreement. The number of Units may
be increased through a split of the Units or decreased through a reverse split
thereof, as directed by the Depositor, which revised number of Units shall be
recorded by the Trustee on its books.
The Trusts created by this Indenture are separate and distinct
trusts for all purposes and the assets of one such trust may not be commingled
with the assets of any other, nor shall the expenses of any such trust be
charged against the other. The Units representing the ownership of a fractional
undivided interest in one Trust shall not be exchangeable for Units representing
the ownership of an undivided fractional interest in any other except as set
forth in the applicable Prospectus.
Section 2.04. Uncertificated Units: All Units shall be held in
uncertificated form, unless and as the Trustee may deem it appropriate to issue
certificates or if so directed by the Depositor. The Trustee may deem and treat
the person in whose name any Unit is registered upon the books of the Trustee as
the owner thereof for all purposes and the Trustee shall not be affected by any
notice to the contrary.
Section 2.05. Deposit of Additional Securities: From time to
time and in the discretion of the Depositor, the Depositor may make deposits of
Additional Securities duly endorsed in blank or accompanied by all necessary
instruments of assignment and transfer in proper form (or contracts to purchase
Additional Securities and cash or an irrevocable letter of credit in an amount
necessary to consummate the purchase of any Additional Securities pursuant to
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such contracts ("Additional Contract Securities")) and/or cash (or a letter of
credit in lieu of cash) with instructions to the Trustee to purchase one or more
Additional Securities (which cash (or cash in an amount equal to the face amount
of the letter of credit), to the extent not used by the Trustee to purchase such
Additional Securities within the 90-day period following the first deposit of
Securities in the Trust, shall be distributed to Unit Holders on the
Distribution Date next following such 90-day period or such earlier date as the
Depositor and the Trustee determine) and Cash (as defined below), if Cash is an
asset of the Trust immediately prior to the supplemental deposit, provided that
each deposit during the 90-day period following the first deposit of Securities
in the Trust shall replicate, to the extent practicable as hereinafter provided,
the Securities (including Contract Securities) and shall exactly replicate Cash
(other than Cash to be distributed solely to persons other than persons
receiving the distribution as holders of Additional Units created by the
deposit) held in the Trust immediately prior to each such deposit; and, provided
further that each deposit of Additional Securities and Cash, if any, subsequent
to such 90-day period shall exactly replicate the Securities (including Contract
Securities) and Cash (other than Cash to be distributed solely to persons other
than persons receiving the distribution as holders of additional Units created
by the deposit) held in the Trust immediately prior to each such deposit. In
connection with the deposit of Additional Securities, the Depositor shall
transfer to the Trustee its obligations under Additional Purchase Rights which
shall each have the same terms as the Purchase Rights transferred pursuant to
Section 2.01 and be in the same proportions as the Securities and Purchase
Rights referred to in Section 2.01. For purposes of this paragraph, Cash means
cash on hand in the Trust and/or cash receivable by the Trust as of the date of
the supplemental deposit reduced by payables and accrued expenses.
Accordingly, (a) for a deposit subsequent to the 90-day period
following the first deposit of Securities:
1. Any Additional Securities included in a deposit shall be
identical to Securities held in the Trust immediately prior to the deposit and
in amounts such that (i) the number of shares of Additional Securities of a
particular issue included in a deposit divided by (ii) the aggregate of the
number of shares of all Additional Securities included in the deposit results in
a fraction which is the same as the fraction resulting from division of (iii)
the aggregate number of shares of the Securities of the same issue held in the
Trust immediately prior to the deposit divided by (iv) the aggregate number of
shares of all Securities held in the Trust immediately prior to the deposit;
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2. Any deposit of Additional Securities shall be accompanied
by Cash in an amount bearing the same ratio to the aggregate number of shares of
all Additional Securities in the deposit as the Cash held in the Trust
immediately prior to the deposit bears to the aggregate number of shares of all
Securities held in the Trust immediately prior to the deposit, exclusive of Cash
held in the Trust and designated for distribution solely to persons other than
persons receiving the distribution as holders of Additional Units created by the
deposit. In connection with the deposit of Additional Securities, the Depositor
shall transfer to the Trustee its obligations under Additional Purchase Rights
which shall each have the same terms as the Purchase Rights transferred pursuant
to Section 2.01 and be in the same proportions as the Securities and Purchase
Rights referred to in Section 2.01; and
(b) for a deposit during the 90-day period following the first
deposit of Securities in the Trust, the rules stated in subparagraphs
(a)(1) and (a)(2) of this Section shall apply except that any
Additional Securities (including Additional Contract Securities) need
be only substantially similar (rather than identical to) Securities
held in the Trust immediately prior to the deposit and need meet the
proportionality requirements only to the extent practicable. Without
limiting the generality of the phrase "to the extent practicable", if
the Depositor specifies a minimum number of shares of a Security with
respect to a particular trust to be included in a deposit and such
minimum requirement cannot be met or if a Security identical to a
Security held in the Trust is not readily obtainable, substitution of
other substantially similar Securities (including Securities of an
issue originally deposited) in order to meet the foregoing
proportionality requirements shall be considered as a meeting of such
requirements "to the extent practicable". Each deposit of Additional
Securities shall be listed in a Supplementary Schedule to the Reference
Trust Agreement stating the date of such deposit and the number of
Additional Units being issued therefor. The Trustee shall acknowledge
in such Supplementary Schedule receipt of the deposit, and
simultaneously with the receipt of said deposit, reflect the aggregate
number of Additional Units specified in such Supplementary Schedule by
recording such Additional Units on its books. Such Additional
Securities shall be held, administered and applied by the Trustee in
the same manner as herein provided for the Securities. The execution by
the Depositor in connection with the deposit of Additional Securities
of a Supplementary Schedule to the Reference Trust Agreement shall
constitute the approval by the Depositor as satisfactory in form and
substance of the contracts to be entered into or assumed by the Trustee
with regard to any Additional Securities listed on such Supplementary
Schedule and authorization to the Trustee on behalf of the Trust to
enter into or assume such contracts and otherwise to carry out the
terms and provisions thereof or to take other
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appropriate action in order to complete the deposit of the Additional
Securities covered thereby into the Trust. The parties hereto agree
that a Supplementary Schedule to the Reference Trust Agreement may be
delivered by telecopier and that such delivery shall have the same
force and effect as the delivery of an original executed document.
Section 2.06. Register of Units: A register shall be kept by
the Trustee containing the names and addresses of the Unit Holders and the
number of Units owned by each Unit Holder, and in which all issues, exchanges,
transfers and cancellations of Units shall be recorded.
ARTICLE III
ADMINISTRATION OF TRUST
Section 3.01. Initial Cost: The costs of organizing the Trust
and sale of the Trust Units shall, to the extent of the expenses reimbursable to
the Depositor provided below, be borne by the Unit Holders, provided, however,
that, to the extent all of such costs are not borne by Unit Holders, the amount
of such costs not borne by Unit Holders shall be borne by the Depositor and,
provided further, however, that the liability on the part of the Depositor under
this section shall not include any fees or other expenses incurred in connection
with the administration of the Trust subsequent to the deposit referred to in
Section 2.01. Upon notification from the Depositor that the primary offering
period is concluded, the Trustee shall withdraw from the Account or Accounts
specified in the Prospectus or, if no Account is therein specified, from the
Principal Account, and pay to the Depositor the Depositor's reimbursable
expenses of organizing the Trust and sale of the Trust Units in an amount
certified to the Trustee by the Depositor. If the balance of the Principal
Account is insufficient to make such withdrawal, the Trustee shall, as directed
by the Depositor, sell Securities identified by the Depositor, or distribute to
the Depositor Securities having a value, as determined under Section 4.01 as of
the date of distribution, sufficient for such reimbursement. The reimbursement
provided for in this section shall be for the account of the Unitholders of
record at the conclusion of the primary offering period and shall not be
reflected in the computation of the Unit Value prior thereto. As used herein,
the Depositor's reimbursable expenses of organizing the Trust and sale of the
Trust Units shall include the cost of the initial preparation and typesetting of
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the registration statement, prospectuses (including preliminary prospectuses),
the indenture, and other documents relating to the Trust, SEC and state blue sky
registration fees, the cost of the initial valuation of the portfolio and audit
of the Trust, the initial fees and expenses of the Trustee, and legal and other
out-of-pocket expenses related thereto, but not including the expenses incurred
in the printing of preliminary prospectuses and prospectuses, expenses incurred
in the preparation and printing of brochures and other advertising materials and
any other selling expenses. Any cash which the Depositor has identified as to be
used for reimbursement of expenses pursuant to this Section shall be reserved by
the Trustee for such purpose and shall not be subject to distribution or, unless
the Depositor otherwise directs, used for payment of redemptions in excess of
the per-Unit amount allocable to Units tendered for redemption. As directed by
the Depositor, the Trustee will advance funds to the Trust in an amount
necessary to reimburse the Depositor pursuant to this Section and shall recover
such advance from the sale or sales of Securities at such time as the Depositor
shall direct, but in no event later than the termination of the Trust. Repayment
of any such advance shall be secured by a lien on the assets of the Trust prior
to the interest of the Unit Holders as provided in Section 6.04.
Section 3.02. Income Account: The Trustee shall collect the
dividends or other like cash distributions on the Securities in the Trust as
such are paid, and credit such amounts, as collected, to a separate account to
be known as the "Income Account."
Section 3.03. Principal Account: The Securities in the Trust
and all cash, other than amounts credited to the Income Account, received by the
Trustee in respect of the Securities in the Trust shall be credited to a
separate account for the Trust to be known as the "Principal Account."
Section 3.04. Reserve Account: From time to time the Trustee
shall withdraw from the cash on deposit in the Principal Account such amounts as
it, in its sole discretion, shall deem requisite to establish a reserve for any
applicable taxes or other governmental charges that may be payable out of the
Trust. Such amounts so withdrawn shall be credited to a separate account which
shall be known as the "Reserve Account." The Trustee shall not be required to
distribute to the Unit Holders any of the amounts in the Reserve Account;
provided, however, that if the Trustee shall, in its sole discretion, determine
that such amounts are no longer necessary for payment of any applicable taxes or
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other governmental charges, then it shall promptly deposit such amounts in the
account from which previously withdrawn, or, if such Trust has been terminated
or is in the process of termination, the Trustee shall distribute to each Unit
Holder such holder's interest in the Reserve Account in accordance with Section
9.04 hereof.
Section 3.05. Distribution: As of each Computation Day or
Record Day for the Trust, the Trustee shall:
(a) deduct from the Income Account, or, to the extent funds
are not available in such Account, from the Principal Account, and pay
to itself individually the amounts that it is at the time entitled to
receive pursuant to Section 6.04 or this Section 3.05;
(b) deduct from the Income Account, or, to the extent funds
are not available in such Account, from the Principal Account, an
amount equal to the unpaid fees and expenses, if any, including
registration charges, Blue Sky fees, printing costs, attorneys' fees,
auditing costs and other miscellaneous out-of-pocket expenses, as
certified by the Depositor, incurred in keeping the registration of the
Units and the Trust on a current basis, provided, however, that no
portion of such amount shall be deducted or paid unless the payment
thereof from the Trust is at that time lawful; and
(c) deduct from the Income Account or, to the extent funds are
not available in such account, from the Principal Account the estimated
amount that the Portfolio Supervisor is entitled to receive pursuant to
Section 8.07 and hold such amount without interest until such time as
it is payable to the Portfolio Supervisor as set forth below. The
Trustee shall distribute to the Portfolio Supervisor from the amount so
held pursuant to the immediately preceding sentence the amounts that
the Portfolio Supervisor is entitled to receive pursuant to Section
8.07 on account of its services theretofore performed and expenses
theretofore incurred. With respect to Trusts having monthly, quarterly
or semiannual Distribution Dates, the Trustee shall deduct from the
Income Account one-twelfth, one-quarter or one-half, as the case may
be, of the estimated annual amount that the Portfolio Supervisor is
entitled to receive and shall distribute such amounts to the Portfolio
Supervisor on the monthly, quarterly or semiannual Distribution Dates,
as the case may be. In the event of the appointment of a successor
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portfolio supervisor pursuant to Section 6.01(f)(1), the Trustee shall
deduct from the Income Account, or, to the extent that funds are not
available in such Account, from the Principal Account, and pay to such
successor portfolio supervisor the amounts, if any, that it is at the
time lawful for it to receive under said Section 6.01(f)(1).
All amounts (i) permitted to be withdrawn from the Principal
Account under this Indenture in order to satisfy obligations which, pursuant to
the terms hereof, are first to be paid out of the Income Account to the extent
funds are available, or (ii) permitted to be withdrawn from the Principal
Account pursuant to Section 5.02 hereof, may be made only from the balance in
the Principal Account after excluding capital amounts being held for
distribution to Unit Holders of record on the Record Date for a prior
Distribution Date pursuant to the second following paragraph. The Principal
Account shall be reimbursed for any such amounts described in clause (i) of the
preceding sentence when sufficient funds are next available in the Income
Account after giving effect to the payment from the Income Account of all
amounts otherwise required to be deducted therefrom at that time.
On each Distribution Date or within a reasonable period of
time thereafter, the Trustee shall distribute by mail to each Unit Holder of
record at the close of business on the preceding Record Date at his address
appearing on the registration books of the Trustee such holder's pro rata share
of the balance of the Income Account, plus such holder's pro rata share of the
distributable cash balance of the Principal Account, each computed as of the
preceding Record Date after deduction of all amounts specified in paragraphs
(a), (b) and (c) of this Section 3.05; provided, however, that funds credited to
the Principal Account in the event of the failure of consummation of a contract
to purchase Securities pursuant to Section 2.01 hereof, funds representing the
proceeds of the sale of Securities pursuant to Section 3.08 hereof, and funds
representing the proceeds of the sale of Securities under Section 5.02, 5.03,
6.04 or this Section 3.05 in excess of the amounts needed for the purposes of
said Sections shall not be distributed until the second following Distribution
Date or at such earlier date as shall be determined by the Trustee or directed
by the Depositor. The Trustee shall make a special distribution of the cash
balance in the Income and Principal accounts available for such distribution to
Unit Holders of record on such dates as the Depositor shall direct. The Trustee
shall not be required to make a distribution from the Principal Account unless
the cash balance on deposit therein available for distribution shall be
sufficient to distribute at least $1.00 per 1,000 Units.
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The amounts to be so distributed to each Unit Holder of the
Trust of record as of each Record Date shall be that pro rata share of the cash
balance as of such Record Date of the Income and Principal Accounts of the
Trust, as shall be represented by a notation on the registration or other record
books of the Trustee.
In the computation of each such share, fractions of less than
one cent shall be omitted. After any such distribution provided for above, any
cash balance remaining in the Income Account or the Principal Account shall be
held in the same manner as other amounts subsequently deposited in each of such
Accounts, respectively.
The Depositor may direct the Trustee to invest the proceeds of
any sale of Securities not required for the redemption of Units in eligible
money market instruments selected by the Depositor which will include only
negotiable certificates of deposit or time deposits of domestic banks which are
members of the Federal Deposit Insurance Corporation and which have, together
with their branches or subsidiaries, more than $2 billion in total assets,
except that certificates of deposit or time deposits of smaller domestic banks
may be held provided the deposit does not exceed the insurance coverage on the
instrument (which currently is $100,000), and provided further that the Trust's
aggregate holding of certificates of deposit or time deposits issued by the
Trustee may not exceed the insurance coverage of such obligations and U.S.
Treasury notes or bills (which shall be held until the maturity thereof) each of
which matures prior to the earlier of the next following Distribution Date or 90
days after receipt, the principal thereof and interest thereon (to the extent
such interest is not used to pay Trust expenses) to be distributed on the
earlier of the 90th day after receipt or the next following Distribution Date.
For the purposes of distribution as herein provided, the
holders of record on the registration books of the Trustee at the close of
business on each Record Date shall be conclusively entitled to such
distribution, and no liability shall attach to the Trustee by reason of payment
to any such registered Unit Holder of record. Nothing herein shall be construed
to prevent the payment of amounts from the Income Account and the Principal
Account to individual Unit Holders by means of one check, draft or other proper
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instrument, provided that the appropriate statement of such distribution shall
be furnished therein as provided in Section 3.06 hereof.
On each Deferred Sales Charge payment date set forth in the
prospectus for a Trust, the Trustee shall pay the account created pursuant to
Section 3.14 the amount of the Deferred Sales Charge payable on each such date
as stated in the prospectus for a Trust. Such amount shall be withdrawn from the
Principal Account from the amounts therein designated for such purpose or
otherwise deducted from such account.
Section 3.06. Distribution Statements: With each distribution
from the Income or Principal Accounts of the Trust, the Trustee shall furnish
Unit Holders a statement of the amount being distributed from each such account,
expressed in each case as a dollar amount per Unit.
Within a reasonable period of time after the last Business Day
of each calendar year or fiscal year, the Trustee shall furnish to each person
who at any time during such calendar year or fiscal year was a Unit Holder a
statement setting forth, with respect to such calendar year or fiscal year:
(A) as to the Income Account of the Trust:
(1) the amount of dividends received on the
Securities,
(2) the amounts paid from the Income Account for
redemptions pursuant to Section 5.02,
(3) the deductions from the Income Account for
payment of applicable taxes or other governmental charges, if
any, compensation of the Depositor, fees and expenses of the
Trustee, transfers to the Reserve Account, any expenses paid
by the Trust pursuant to Section 3.05 hereof and any Deferred
Sales Charge paid,
(4) the amount distributed from the Income Account,
identifying separately amounts distributed as dividends and as
other income,
(5) any other amount credited to or deducted from the
Income Account, and
(6) the balance remaining after such distributions
and deductions, expressed both as a total dollar amount and as
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a dollar amount per Unit outstanding on the last Business Day
of such calendar or fiscal year;
(B) as to the Principal Account of the Trust:
(1) the dates of the sale, liquidation or redemption
of any of the Securities, the identity of such Securities and
the net proceeds received therefrom, excluding any portion
thereof credited to the Income Account,
(2) the amount paid from the Principal Account for
redemption pursuant to Section 5.02,
(3) the deductions for payment of applicable taxes
and other governmental charges, if any, fees and expenses of
the Trustee, transfers to the Reserve Account, any expenses
paid by the Trust under Section 3.05 hereof and any Deferred
Sales Charge paid,
(4) the amount distributed from the Principal Account
for such period, pursuant to Section 3.05 hereof,
(5) any other amount credited to or deducted from the
Principal Account, and
(6) the balance remaining after such distributions
and deductions, expressed both as a total dollar amount and as
a dollar amount per Unit outstanding on the last Business Day
of such calendar or fiscal year; and
(C) the following information:
(1) a list of the Securities held in the Trust as of
the last Business Day of such calendar or fiscal year and the
purchase rights to which the Securities are subject,
(2) the number of Units outstanding on the last
Business Day of such calendar or fiscal year,
(3) the Unit Value (as defined in Section 5.01) based
on the last evaluation of such Trust made during such calendar
or fiscal year, and
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(4) the amounts actually distributed during such
calendar or fiscal year from the Income and Principal Accounts
of the Trust, separately stated, expressed both as total
dollar amounts and as dollar amounts per Unit outstanding on
the Record Date for such distributions.
Section 3.07. Replacement Securities: In the event that any
Contract Security is not delivered due to any occurrence, act or event beyond
the control of the Depositor and of the Trustee (such a Contract Security being
herein called a 'Special Security'), the Depositor may instruct the Trustee to
purchase Replacement Securities which have been selected by the Depositor having
a cost not in excess of the cost of the Special Securities not so delivered. To
be eligible for inclusion in the Trust, the Replacement Securities which the
Depositor selects must: (i) be of the same type as that replaced (e.g., both
will be common stock or preferred stock); (ii) in the Depositor's judgment,
closely resemble the Special Security as respects the investment characteristics
which led the Depositor to select the Special Security for inclusion in the
Trust; and (iii) be purchased within twenty days after delivery of notice of the
failed contract to the Trustee or to the Depositor, whichever occurs first. Any
Replacement Securities received by the Trustee shall be deposited hereunder and
shall be subject to the terms and conditions of this Indenture to the same
extent as other Securities deposited hereunder. No such deposit of Replacement
Securities shall be made after the earlier of (i) 90 days after the date of
execution and delivery of the applicable Reference Trust Agreement or (ii) the
first Distribution Date to occur after the date of execution and delivery of the
applicable Reference Trust Agreement.
Whenever a Replacement Security is acquired by the Depositor
pursuant to the provisions of this Section 3.07, the Trustee shall, within five
days thereafter, mail to all Unit Holders notices of such acquisition, including
an identification of the Special Security and the Replacement Security acquired.
The purchase price of a Replacement Security shall be paid out of the funds in
the principal account attributable to the Special Security which it replaces.
The Trustee shall not be liable or responsible in any way for depreciation or
loss incurred by reason of any purchase made pursuant to any such instructions
from the Depositor and in the absence of such instructions the Trustee shall
have no duty to purchase any Replacement Securities under this Indenture. The
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Depositor shall not be liable for any failure to instruct the Trustee to
purchase any Replacement Security or for errors of judgment in selecting any
Replacement Security.
Section 3.08. Sale of Securities: In order to maintain the
sound investment character of the Trust, the Depositor may direct the Trustee to
sell or liquidate Securities at such price and time and in such manner as shall
be determined by the Depositor, provided that the Depositor has determined that
any one or more of the following conditions exist:
(a) that there has been a failure by the issuer of such
Securities to declare or pay an anticipated dividend thereon;
(b) that any action or proceeding has been instituted in law
or equity seeking to restrain or enjoin the payment of dividends on any
such Securities, or that there exists any other legal question or
impediment affecting such Securities or the payment of dividends on the
same;
(c) that there has occurred any breach of covenant or warranty
in any resolution, ordinance, trust, indenture or other agreement or
document, which would adversely affect either immediately or
contingently the payment of dividends on such Securities;
(d) that the price of any such Securities has declined to such
an extent, or such other market or credit factor exists, that in the
opinion of the Depositor the retention of such Securities would be
detrimental to the Trust and to the interest of the Unit Holders;
(e) that there has been a default in the payment of principal
or par or stated value of, premium, if any, or income on any other
outstanding securities of the issuer or the guarantor of such
securities which might materially and adversely, either immediately or
contingently, affect the declaration or payment of dividends on the
Securities; and
(f) that the tax treatment of the Trust as a grantor trust
would otherwise be jeopardized.
In order to pay the Deferred Sales Charge, the Trustee shall
sell or liquidate such an amount of Securities and at such time and from time to
time and in such manner as the Depositor shall direct such that the proceeds of
such sale or liquidation shall be sufficient to pay the amount required to be
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paid to the Depositor pursuant to the Deferred Sales Charge program as set forth
in the prospectus for a Trust.
Securities sold shall either be sold to a purchaser subject to
the related Purchase Rights or the Trustee shall acquire a purchase right with
the same terms as the Purchase Right in such a manner that the obligation under
the Purchase Right is canceled and then sell the Securities to which such
Purchase Right related.
Upon receipt of such direction from the Depositor, upon which
the Trustee shall rely, the Trustee shall proceed to sell the specified
Securities in accordance with such direction. The Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any sale
made pursuant to any such direction or by reason of the failure of the Depositor
to give any such direction, and in the absence of such direction the Trustee
shall have no duty to sell any Securities under this Section 3.08. The Depositor
shall not be liable for errors of judgment in directing or failing to direct the
Trustee pursuant to this Section 3.08.
Section 3.09. Notice and Sale by Trustee: If at any time there
has been a failure by the issuer of any of the Securities to pay a dividend that
is due and payable, the Trustee shall notify the Depositor thereof. If within
thirty days after such notification the Trustee has not received any instruction
from the Depositor to sell or to hold or to take any other action in connection
with such Security, the Trustee shall sell such Security forthwith, and the
Trustee shall not be liable or responsible in any way for depreciation or loss
incurred by reason of such sale or by reason of any action or inaction in
accordance with such written instructions of the Depositor. The Trustee shall
promptly notify the Depositor of such action in writing and shall set forth
therein the Security sold and the proceeds received therefrom.
Section 3.10. Refunding Securities: Except as otherwise
provided in Section 3.13, in the event that an offer by the issuer of any of the
Securities or any other party shall be made to issue new Securities, the Trustee
shall reject such offer. However, should any exchange or substitution be
effected notwithstanding such rejection or without an initial offer, any
Securities, cash and/or property received in exchange shall be deposited
hereunder and shall be promptly sold, if securities or property, by the Trustee.
The cash then remaining shall be distributed to Unit Holders on the next
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Distribution Date in the manner set forth in Section 3.05 regarding
distributions from the Principal Account.
Section 3.11. Notice of Actions: Except as otherwise provided
in Section 3.13, in the event that the Trustee shall have been notified at any
time of any action to be taken or proposed to be taken by holders of any
Securities held by the Trust (including, but not limited to, the making of any
demand, direction, request, giving of any notice, consent or waiver or the
voting with respect to election of directors or any amendment or supplement to
any corporate resolution, agreement or other instrument under or pursuant to
which such Securities have been issued) the Trustee shall promptly notify the
Depositor and shall thereupon take such action or refrain from taking any action
as the Depositor shall in writing direct; provided, however, that if the
Depositor shall not within five business days of the giving of such notice to
the Depositor direct the Trustee to take or refrain from taking any action, the
Trustee shall take such action as it, in its sole discretion, shall deem
advisable. Neither the Depositor nor the Trustee shall be liable to any person
for any action or failure to take action with respect to this Section.
Section 3.12. Extraordinary Distributions: Except as otherwise
provided in Section 3.13, any property received by the Trustee after the initial
date of Deposit in a form other than cash or additional shares of the Securities
listed on Schedule A or of a Replacement Security, shall be either (i) dealt
with under the Distribution Agency Agreement as though such property were an
asset of the Trust other than cash remaining on hand at the termination of the
Trust or (ii) sold, and the proceeds of sale credited to the Principal Account
of the Trust, all as the Depositor may direct. In no event shall the Trustee
hold as part of the Trust, except temporarily pending sale or distribution as
described in the preceding sentence, any property other than cash (including a
letter of credit) and the Securities described on Schedule A or a Replacement
Security.
The Securities, Purchase Rights and cash represented by a Unit
shall be uniform so that each Unit shall at all times represent property
identical to that represented by every other Unit. Securities identical to those
represented by a Unit and received as the result of a stock dividend or stock
split may be retained in the Trust and the number of shares of such a Security
represented by a Unit adjusted accordingly. All other non-cash distributions in
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respect of any Securities held in the Trust shall be sold or distributed to Unit
Holders through the Distribution Agent, as referred to above.
Section 3.13. Extraordinary Event - Security Retention and
Voting: In the event the Trustee is notified of any action to be taken or
proposed to be taken by holders of the securities held by the Trust in
connection with any proposed merger, reorganization, spin-off, split-off or
split-up by the issuer of stock or securities held in the Trust, the Trustee
shall take such action or refrain from taking any action, as appropriate, so as
to insure that the securities are voted as closely as possible in the same
manner and in the same general proportion as are the securities held by owners
other than the Trust. If stock or securities are received by the Trustee, with
or without cash, as a result of any merger, reorganization, spin-off, split-off
or split-up by the issuer of stock or securities held in the Trust, the Trustee
at the direction of the Depositor may retain such stock or securities in the
Trust. Neither the Depositor nor the Trustee shall be liable to any person for
any action or failure to take action with respect to this section.
Section 3.14. Deferred Sales Charge: If the Prospectus for a
Trust specifies a Deferred Sales Charge, the Trustee shall, on the dates
specified in and as permitted by the Prospectus, withdraw from the Income
Account if such account is designated in the Prospectus as the source of the
payments of the Deferred Sales Charge, or to the extent funds are not available
in that account or if such account is not so designated, from the Principal
Account, an amount per Unit specified in the Prospectus and credit such amount
to a special, non-Trust account maintained at the Trustee out of which the
Deferred Sales Charge will be distributed to the Depositor. If the Income
Account is not designated as the source of the Deferred Sales Charge payment or
if the balances in the Income and Principal Accounts are insufficient to make
any such withdrawal, the Trustee, shall, as directed by the Depositor, either
advance funds in an amount equal to the proposed withdrawal and be entitled to
reimbursement of such advance upon the deposit of additional monies in the
Income Account or the Principal Account, sell Securities and credit the proceeds
thereof to such special Depositor's account or credit Securities in kind to such
special Depositor's Account. Such directions shall identify the Securities, if
any, to be sold or distributed in kind and shall contain, if the Trustee is
directed by the Depositor to sell a Security, instructions as to execution of
such sales. If a Unit Holder redeems Units prior to full payment of the Deferred
Sales Charge, the Trustee shall, if so provided in the Prospectus, on the
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Redemption Date, withhold from the Redemption Price payment to such Unit Holder
an amount equal to the unpaid portion of the Deferred Sales Charge as such
amount is certified by the Depositor to the Trustee prior to the Redemption
Date, upon which certification the Trustee shall be entitled to rely, and
distribute such amount to such special Depositor's account or, if the Depositor
shall purchase such Unit pursuant to the terms of Section 5.02 hereof, the
Depositor shall pay the Redemption Price for such Unit less the unpaid portion
of the Deferred Sales Charge. The Depositor may at any time instruct the Trustee
to distribute to the Depositor cash or Securities previously credited to the
special Depositor's account. References to Deferred Sales Charge in this Trust
Indenture and Agreement shall include any Creation and Development Fee indicated
in the prospectus for a Trust. The Creation and Development Fee shall be payable
on each date so designated and in an amount determined as specified in the
prospectus for a Trust.
ARTICLE IV
EVALUATION OF SECURITIES
Section 4.01. Evaluation of Securities: The Trustee shall
determine separately and promptly furnish to the Depositor upon request the
value of each issue of the Purchase Rights and Securities in the Trust
(determined as set forth below) as of the Evaluation Time on each of the days on
which the Trustee shall make the Trust Evaluation required by Section 5.01. In
making the evaluations the Trustee shall determine the value of each issue of
the Securities in the Trust by the following methods: If the Securities are
listed on one or more national securities exchanges, such valuation shall be
based on the closing price on such exchange which is the principal market
thereof, deemed to be the New York Stock Exchange if the Securities are listed
thereon (unless the Trustee deems such price inappropriate as a basis for
valuation). If the Securities are not so listed, or, if so listed and the
principal market therefor is other than such exchange or there is no closing
price on such exchange, such valuation shall be based on the closing price in
the over-the-counter market (unless the Trustee deems such price inappropriate
as a basis for valuation) or if there is no such closing price, by any of the
following methods which the Trustee deems appropriate: (i) on the basis of
current bid prices of such Securities as obtained from investment dealers or
brokers (including the Depositor) who customarily deal in securities comparable
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to those held by the Trust, or (ii) if bid prices are not available for any of
such Securities, on the basis of bid prices for comparable securities, or (iii)
by appraisal of the value of the Securities on the bid side of the market or by
such other appraisal as is deemed appropriate, or (iv) by any combination of the
above. The Trustee shall evaluate the Purchase Rights following the same
procedures as it follows in evaluating Securities pursuant to this Section 4.01
except that references to securities exchanges shall be replaced by references
to options exchanges and references in the preceding sentence to bid prices
shall be replaced by reference to after prices. The Trustee shall also make an
evaluation of the Securities deposited in the Trust as of the time said
Securities are deposited under this Indenture. Such evaluation shall be made on
the same basis as set forth above. The Trustee's determination of the closing
prices of the Securities on the date of deposit shall be included in the
Schedules attached to the Reference Trust Agreement.
Section 4.02. Tax Reports: For the purpose of permitting Unit
Holders to satisfy any reporting requirements of applicable Federal or State tax
law, the Trustee shall transmit to any Unit Holder upon written request any
determinations made by the Trustee pursuant to Section 4.01.
Section 4.03. Liability of the Trustee: The Depositor and Unit
Holders may rely on any evaluation furnished by the Trustee and shall have no
responsibility for the accuracy thereof. The determinations made by the Trustee
hereunder shall be made in good faith upon the basis of the best information
available to it. The Trustee shall be under no liability to the Depositor or
Unit Holders for errors in judgment, provided, however, that this provision
shall not protect the Trustee against any liability to which it would otherwise
be subject by reason of willful misfeasance, bad faith or negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties hereunder. The Trustee shall not be liable or responsible
for depreciation or losses incurred by reason of the purchase, sale or retention
of any Securities.
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ARTICLE V
TRUST EVALUATION, REDEMPTION,
TRANSFER OF UNITS
Section 5.01. Trust Evaluation: The Trustee shall make an
evaluation of the Trust as of the Evaluation Time (i) on the last Business Day
of each of the months of June and December, (ii) on the day on which any Unit of
the Trust is tendered for redemption (unless tender is made after the Evaluation
Time on such day, in which case tender shall be deemed to have been made on the
next day subsequent thereto on which the New York Stock Exchange is open for
trading), and (iii) on any other day desired by the Trustee or requested by the
Depositor. Such evaluations shall take into account and itemize separately
(a)(1) the cash on hand in the Trust (other than monies on deposit in the
Reserve Account, funds deposited on the date hereof by the Depositor for the
purchase of Securities and not theretofore credited to the Principal Account
pursuant to Section 3.03 and funds in the Principal Account with respect to
which contracts for the purchase of the Replacement Securities have been entered
into pursuant to Section 3.07 hereof), including dividends receivable on stocks
trading ex dividend, (a)(2) the value of each issue of the Securities in the
Trust reduced by the value of each of the Purchase Rights as determined by the
Trustee pursuant to Section 4.01, and (a)(3) all other assets of the Trust. For
each such evaluation there shall be deducted from the sum of the above (b)(1)
amounts representing any applicable taxes or other governmental charges payable
out of the Trust and for which no deductions shall have previously been made for
the purpose of addition to the Reserve Account, (b)(2) amounts representing
accrued fees of the Trustee and expenses of the Trust including but not limited
to unpaid fees of the Trustee and expenses of the Trust (including legal and
auditing expenses), accrued fees and expenses of the Depositor and its
respective successors, if any, and (b)(3) cash held for distribution to Unit
Holders of record as of a date on or prior to the evaluation then being made.
The value of the pro rata share of each Unit of the Trust determined on the
basis of any such evaluation shall be referred to herein as the "Unit Value."
The sum of (a)(1) and (a)(3) reduced by the sum of (b)(1) and
(b)(2) and (b)(3) shall be referred to herein as the "Unit Cash Value."
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The Trustee shall promptly advise the Depositor of each
determination of Unit Value made by it as above provided, and, in addition, upon
each evaluation by the Trustee under Section 4.01 other than those involved in
such calculations of Unit Value, the Trustee shall promptly furnish to the
Depositor, for purposes of assisting it in maintaining a market in the Units,
with such information regarding the Principal, Income and Reserve Accounts as
the Depositor may reasonably request.
Section 5.02. Redemptions by Trustee; Purchases by Depositor:
On any Business Day on which any Unit or Units are tendered for redemption (the
"Tender Day") by a Unit Holder or his duly authorized attorney to the Trustee at
its corporate trust office in the City of New York, such Units shall be redeemed
by the Trustee on that Tender Day. Units in uncertificated form shall be
tendered by means of an appropriate request for redemption in form approved by
the Trustee. Unit Holders must sign exactly as their name appears on the
register with the signature guaranteed by an officer of a national bank or trust
company, or by a member firm of either the New York, Midwest, or Pacific Coast
Stock Exchanges, or in such other manner as may be acceptable to the Trustee.
The Trustee may also require additional documents such as, but not limited to,
trust instruments, certificates of death, appointments as executor or
administrator or certificates of corporate authority. Subject to payment by such
Unit Holder of any tax or other governmental charges which may be imposed
thereon, if the Depositor directs a redemption in kind, such redemption is to be
made by distribution to the Distribution Agent on behalf of the redeeming Unit
Holder on the Tender Day and subsequent distribution to such Unit Holder by the
Distribution Agent no later than the next Business Day following the Tender Day
(such next Business Day being hereinafter the "Redemption Date") of (i) the Unit
Holder's pro rata portion as of the Tender Day of the Securities in the Trust,
in whole shares, as designated by the Sponsor and (ii) cash equal to the Unit
Cash Value multiplied by the number of Units being redeemed (herein called the
"Redemption Distribution"). In addition, the Trustee shall distribute to the
Distribution Agent no later than the seventh calendar day after the Tender Day
(or if such is not a Business Day, then the first Business Day prior thereto),
for distribution to a redeeming Unit Holder on such day, cash equal to the value
of any fractional shares included in such Unit Holder's pro rata portion of the
Securities as of the Tender Day.
If Units are tendered for redemption and not redeemed in kind,
redemption of such Units is to be made by payment within seven calendar days of
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cash equivalent to the Unit Value, determined by the Trustee as of the close of
trading on the New York Stock Exchange, on the date of tender (herein called the
"Redemption Price"). Units received for redemption by the Trustee on any day
after the Evaluation Time will be held by the Trustee until the next day on
which the New York Stock Exchange is open for trading and will be deemed to have
been tendered on such day for redemption at the Redemption Price computed on
that day. The portion of the Redemption Price which represents the Unit Holders'
interest in the Income Account shall be withdrawn from the Income Account of the
Trust to the extent available. The balance paid on any redemption shall be
withdrawn from the Principal Account of the Trust to the extent that funds are
available for such purpose. If such available balance shall be insufficient, the
Trustee shall sell such of the Securities held in the Trust as are currently
designated for such purposes by the Depositor as the Trustee in its sole
discretion shall deem necessary. The sale of Securities shall be effected in the
manner set forth in Section 3.08. The Depositor shall maintain with the Trustee
a current list of Securities held in the Trust designated to be sold for the
purpose of redemption of Units of the Trust, 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 Securities for such purposes. The net proceeds of any sales of Securities
from such list representing principal shall be credited to the Principal Account
of the Trust.
The Depositor shall maintain with the Trustee a current list
of Securities held in the Trust designated to be sold for the purpose of
satisfying amounts for the payment of cash equivalent to the value of fractional
shares; provided that if the Depositor shall for any reason fail to maintain
such a list, the Trustee, in its sole discretion, may designate a current list
of Securities for such purposes. The net proceeds of any sales of Securities
from such list shall be credited to the Principal Account of the Trust and paid
therefrom, to the extent necessary in accordance with this Section and otherwise
distributed pursuant to this Indenture. The Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any sale
or sales made in accordance with this Section 5.02.
The portion of the Redemption Distribution which represents
the Unit Holder's interest in the Income Account shall be withdrawn from the
Income Account to the extent available. The balance paid on any redemption,
including dividends receivable on stocks trading ex dividend, if any, shall be
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withdrawn from the Principal Account to the extent that funds are available for
such purpose. If such available balance shall be insufficient, the Trustee shall
advance funds sufficient to pay such amount to the Unit Holder and shall be
entitled to reimbursement of such advance upon the deposit of additional monies
in the Income Account or Principal Account, whichever happens first. Should any
amounts so advanced with respect to declared but unreceived dividends prove
uncollectable because of default in payment of such dividends, the Trustee shall
have the right immediately to liquidate Securities in amount sufficient to
reimburse itself for such advances, without interest. In the event that funds
are withdrawn from the Principal Account for payment of any portion of the
Redemption Distribution representing dividends receivable on stocks trading ex
dividend, the Principal Account shall be reimbursed when sufficient funds are
next available in the Income Account for such funds so applied.
The Trustee may in its discretion, and shall when so directed
by the Depositor, suspend the right of redemption or postpone the date of
payment of the Redemption Distribution for more than seven calendar days
following the day on which tender for redemption is made (1) for any period
during which the New York Stock Exchange is closed other than customary weekend
and holiday closings or during which trading on the New York Stock Exchange is
restricted; (2) for any period during which an emergency exists as a result of
which disposal by the Trust of the Securities is not reasonably practicable or
it is not reasonably practicable fairly to determine in accordance herewith the
value of the Securities; or (3) for such other period as the Securities and
Exchange Commission may by order permit. The Trustee shall not be liable to any
person or in any way for any loss or damage which may result from any such
suspension or postponement.
Not later than the close of business on the day any Unit is
tendered for redemption by a Unit Holder other than the Depositor, the Trustee
shall notify the Depositor of such tender. The Depositor shall have the right to
purchase such Unit by notifying the Trustee of its election to make such
purchase no later than the close of business on the Tender Day. Such purchase
shall be made by payment for such Unit by the Depositor to the Unit Holder not
later than the close of business on the Redemption Date of an amount not less
than the Redemption Distribution which would otherwise be payable by the Trustee
to such Unit Holder.
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Any Unit so purchased by the Depositor may at the option of
the Depositor be tendered to the Trustee for redemption at the corporate trust
office of the Trustee in the manner provided in the first paragraph of this
Section 5.02.
The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any sale or redemption of Securities
made pursuant to this Section 5.02.
Section 5.03. Redemption Upon Termination: Should the Trust
terminate on the Termination Date specified in the Reference Trust Agreement
(the "Termination Date"), Securities will be distributed to the Distribution
Agent as agent for the Unit Holders as provided in Section 9.03(b)(i). A Unit
Holder may notify the Distribution Agent in writing at least 3 days prior to the
Evaluation Time on the Termination Date as to whether such Unit Holder desires:
1) to receive his pro rata share of the Securities in-kind; 2) to receive the
cash proceeds from the sale of his pro rata share of underlying Securities; or
3) to participate in the reinvestment program by investing his interest in the
Trust including the proceeds from the sale of his pro rata share of underlying
securities in units of a new trust. Unit Holders who do not notify the
Distribution Agent of their election will receive cash from the sale of their
pro rata share of underlying securities (Option 2). Unit Holders who elect
Options 2 or 3 will have their securities sold and distributed or invested
pursuant to Section 1.02(b) of the Distribution Agency Agreement. Unit Holders
may elect to roll over Securities on a roll over date or Termination Date
pursuant to Section 1.02(c) of the Distribution Agency Agreement.
A Unit Holder choosing in-kind distribution will receive such
distribution on the first business day following the Termination Date subject to
payment by such Unit Holder of any tax or governmental charges which may be
imposed thereon. This distribution shall consist of such Unit Holder's pro rata
portion of each of the Securities in whole shares based on the number of Units
owned as of the Termination Date plus the Unit Holder's pro rata share of the
balances in the Income and Principal Accounts distributed to the Distribution
Agent as provided in Section 9.03 hereof (herein called the "Termination
Distribution"). In addition, the Distribution Agent shall distribute no later
than the seventh calendar day after the Termination Date (or if such is not a
Business Day, then the first Business Day prior thereto), cash equal to the
value of any fractional shares included in such Unit Holder's pro rata portion
of the Securities as of the Termination Date.
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The Depositor shall provide the Distribution Agent with a list
of Securities held in the Trust designated to be sold for the purpose of
satisfying amounts for the payment of cash equal to the value of fractional
shares; provided that if the Depositor shall for any reason fail to provide such
a list, the Distribution Agent, in its sole discretion, may designate a list of
Securities for such purposes. The excess proceeds of any sales of Securities
from such list shall be credited to the cash account to be distributed pro rata
at the time of the settlement of the last sale pursuant to Section 1.02(b) of
the Distribution Agency Agreement.
Notwithstanding the option to reinvest the proceeds in the
next National Equity Trust series to be offered after the Termination Date (the
"New Series"), the Depositor may, in its sole discretion at any time, decide not
to offer any Series of the Trust in the future. If the Depositor so decides, the
Depositor shall notify the Trustee of that decision, and the Trustee shall
notify Unit Holders before the Termination Date. Moreover, the Trustee may in
its discretion, and shall when so directed by the Depositor in writing, postpone
the Termination Date (1) for any period during which the New York Stock Exchange
is closed other than customary weekend and holiday closings; (2) for any period
during which (as determined by the Securities and Exchange Commission by rule,
regulation or order) (i) trading on the New York Stock Exchange is restricted or
(ii) an emergency exists as a result of which disposal by the Trust of the
Securities is not reasonably practicable or it is not reasonably practicable
fairly to determine in accordance herewith the value of the Securities for the
purposes of any Trust Evaluation; or (3) for such other periods as the
Securities and Exchange Commission may by order permit.
Section 5.04. Transfer of Units: Units may be transferred by
the registered Unit Holder thereof by presentation of transfer instructions, at
the principal office of the Trustee accompanied by such documents executed by
the registered Unit Holder or his authorized attorney as the Trustee deems
necessary to evidence the authority of the person making such transfer. The
Trustee may deem and treat the person in whose name any Unit shall be registered
upon the books of the Trustee as the owner of such Unit for all purposes
hereunder and the Trustee shall not be affected by any notice to the contrary.
The transfer books maintained by the Trustee for the purposes of this Section
5.04 shall be closed in connection with the termination of the Trust pursuant to
Section 9.03 hereof.
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A sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such transfer shall be paid to the
Trustee. A Unit Holder may be required to pay $2 (or such other amount as may be
specified by the Trustee and approved by the Depositor) on any such transfer.
The Trustee may also adopt other reasonable rules and
regulations for the transfer, tender and redemption of Units.
ARTICLE VI
TRUSTEE
Section 6.01. General Definition of Trustee's Liabilities,
Rights and Duties: In addition to and notwithstanding the other duties, rights,
privileges and liabilities of the Trustee as otherwise set forth, the
liabilities of the Trustee are further defined as follows:
(a) all monies deposited with or received by the Trustee
hereunder shall be held by it without interest in trust as part of the
Trust until required to be disbursed in accordance with the provisions
of this Indenture and such monies will be segregated by separate
recordation on the trust ledger of the Trustee so long as such practice
preserves a valid preference under applicable law, or if such
preference is not so preserved the Trustee shall handle such monies in
such other manner as shall constitute the segregation and holding
thereof in trust within the meaning of the Investment Company Act of
1940;
(b) the Trustee shall be under no liability for any action
taken in good faith on any appraisal, paper, order, list, demand,
request, consent, affidavit, notice, opinion, direction, evaluation,
endorsement, assignment, resolution, draft or other document whether or
not of the same kind prima facie properly executed, or for the
disposition of monies, Securities or Units pursuant to this Indenture,
or in respect of any evaluation which it is required to make or is
required or permitted to have made by others under this Indenture or
otherwise, except by reason of its own wilful misfeasance, bad faith or
negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties hereunder. The parties
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hereto may construe any of the provisions of this Indenture, insofar as
the same may appear to be ambiguous or inconsistent with any other
provisions hereof which construction shall be binding upon the Unit
Holders and the parties hereto. The Trustee shall be under no liability
for any construction of any such provisions hereof;
(c) the Trustee shall not be responsible for or in respect of
the recitals herein, the validity or sufficiency of this Indenture or
for the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any
Securities, and the Trustee shall in no event assume or incur any
liability, duty or obligation to any Unit Holder or the Depositor other
than as expressly provided for herein. The Trustee shall not be
responsible for or in respect of the validity of any signatures by or
on behalf of the Depositor;
(d) the Trustee shall be under no obligation to appear in,
prosecute or defend any action which in its opinion may involve it in
expense or liability, unless as often as required by the Trustee, it
shall be furnished with reasonable security and indemnity against such
expense or liability, and any pecuniary cost to the Trustee from such
action shall be deductible from and a charge against the Income and
Principal Accounts of the Trust. Subject to the foregoing, the Trustee
shall in its discretion undertake such action as it may deem necessary
at any and all times to protect the Trust and the rights and interest
of the Unit Holders pursuant to the terms of this Indenture, provided,
however, that the expenses and costs of such actions, undertakings or
proceedings shall be reimbursable to the Trustee from the Income and
Principal Accounts, and the payment of such costs and expenses shall be
secured by a lien on the Trust prior to the interests of the Unit
Holders;
(e) the Trustee may employ agents, attorneys, accountants and
auditors and shall not be answerable for the default or misconduct of
any such agents, attorneys, accountants or auditors if such agents,
attorneys, accountants or auditors shall have been selected with
reasonable care; provided, however, that if the Trustee chooses to
employ the Depository Trust Company in connection with the storage and
handling of, and the furnishing of administrative services in
connection with the Securities, the Trustee will be answerable for any
default or misconduct of the Depository Trust Company and its employees
and agents as fully and to the same extent as if such default or
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misconduct had been committed or occasioned by the Trustee. The Trustee
shall be fully protected in respect of any action under this Indenture
taken, or suffered, in good faith by the Trustee, in accordance with
the opinion of its counsel. The accounts of the Trust shall be audited
not less frequently than annually by independent certified public
accountants designated from time to time by the Depositor, and the
reports of such accountants shall be furnished by the Trustee to Unit
Holders upon request. The fees and expenses charged by such agents,
attorneys, accountants or auditors shall constitute an expense of the
Trust reimbursable from the Interest and Principal Accounts as set
forth in Section 6.04 hereof;
(f) if the Depositor shall resign pursuant to Section 8.04
hereof or shall fail to undertake or perform any of the duties which by
the terms of this Indenture are required by it to be undertaken or
performed or if the Depositor shall be dissolved or become incapable of
acting or shall be adjudged a bankrupt or insolvent, or a receiver of
the property of the Depositor shall be appointed or any public officer
shall take charge or control of the Depositor or its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then in any such case, the Trustee may: (1) appoint a successor
depositor meeting the qualifications set forth in Section 8.03 who
shall act hereunder in all respects in place of the Depositor which
successor shall be satisfactory to the Trustee, and which may be
compensated at rates deemed by the Trustee to be reasonable under the
circumstances, by deduction from the Income Account of the Trust or, to
the extent funds are not available in such Account, from the Principal
Account of the Trust but no such deduction shall be made exceeding such
reasonable amount as the Securities and Exchange Commission may
prescribe in accordance with Section 26(a)(2)(C) of the Investment
Company Act of 1940, or (2) terminate this Indenture and the trust
created hereby and liquidate the Trust in the manner provided in
Section 9.03 or (3) act as Depositor itself without terminating the
Trust;
(g) if the value of the Trust as shown by any Trust Evaluation
shall be less than 40% of the value of the Securities in the Trust
determined as of the date on which the most recent deposit of
Securities occurred, the Trustee may in its discretion, and shall if so
directed by the Depositor, terminate this Indenture and the trust
created hereby and liquidate the Trust all in the manner provided in
Section 9.03;
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(h) the Trustee is authorized and empowered, at the request
and direction of the Depositor, to execute and file on behalf of the
Trust any and all documents, in connection with consents to service of
process, required to be filed under the securities laws of the various
States in order to permit the sale of Units of the Trust in such States
by the Depositor;
(i) in no event shall the Trustee be liable for any taxes or
other governmental charges imposed upon or in respect of the Securities
or upon the dividends thereon or upon it as Trustee hereunder or upon
or in respect of the Trust which it may be required to pay under any
present or future law of the United States of America or of any other
taxing authority having jurisdiction in the premises. For all such
taxes and charges and for any expenses, including counsel fees, which
the Trustee may sustain or incur with respect to such taxes or charges,
the Trustee shall be reimbursed and indemnified out of the Reserve
Account and/or the Income and Principal Accounts of the Trust, and the
payment of such amounts so paid by the Trustee shall be secured by a
lien on the Trust prior to the interests of the Unit Holders.
The Depositor shall, upon request by the Trustee, provide the
Trustee with a current list of Securities designated to be sold for the
purpose of payment of expenses hereunder, provided that if the
Depositor shall for any reason fail to provide such a list, the
Trustee, in its sole discretion, may designate a current list of
Securities for such purposes. The net proceeds of any such sales of
Securities from such list representing principal shall be credited to
the Principal Account.
(j) the trustee except by reason of its own negligence, bad
faith or wilful misconduct shall not be liable for any action taken,
omitted or suffered to be taken by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(k) so long as shall be required by Section 26(a)(2)(C) of the
Investment Company Act of 1940, no payment to the Depositor or to any
principal underwriter (as defined in such Act) for the Trust or to any
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affiliated person (as so defined) or agent of the Depositor or such
underwriter shall be allowed the Trustee as an expense except for
payment not in excess of such reasonable amounts as compensation for
performing bookkeeping and other administrative services of a character
normally performed by the Trustee itself;
(l) the Trustee in its individual or any other capacity may
become an owner or pledgee of, or be an underwriter or dealer in
respect of, common stock and other securities issued by the same issuer
(or an affiliate of such issuer) of any of the Securities at any time
held as part of the Trust and may deal with such common stock or other
securities in any manner with the same rights and powers as if it were
not the Trustee hereunder;
(m) the Trust may include a letter or letters of credit for
the purchase of Securities or Contract Securities issued by the Trustee
in its individual capacity for the account of the Depositor and the
Trustee may otherwise deal with the Depositor and the Trust with the
same rights and powers as if it were not the Trustee hereunder; and
(n) the Trustee may grant a security interest in the
Securities in connection with the Purchase Rights and Additional
Purchase Rights provided however that the Unit Holders will have the
benefits of the Securities and will be prior in right with respect to
the security interest.
Section 6.02. Books, Records and Reports: The Trustee shall
keep proper books of record and account of all the transactions under this
Indenture and keep a register described in Section 2.06 at its corporate trust
office, and such books, records and register shall be open to inspection by any
Unit Holder at all reasonable times during the usual business hours.
The Trustee shall make such annual or other reports as may
from time to time be required under any applicable state or federal statute or
rule or regulation thereunder and such other tax and cost basis reports
requested by the Depositor and the Trustee shall, upon the request of a Unit
Holder, provide such Unit Holder and such Unit Holder's designated
representative with the cost basis of the Securities backing the Unit Holder's
Units and a calculation of the gain or loss on such Securities in the case of
Unit Holders of record on the Termination Date.
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Section 6.03. Indenture and List of Securities on File: The
Trustee shall keep a certified copy or duplicate original of this Indenture
(including the Reference Trust Agreement) on file at its corporate trust office
available for inspection at all reasonable times during the usual business hours
by any Unit Holder, together with a current list of the Securities.
Section 6.04. Compensation of Trustee: For services performed
under this Indenture the Trustee shall be paid an annual fee in an amount set
forth in Part II of the Reference Trust Agreement. Such compensation shall be
payable quarterly in an amount equal to one-fourth of the estimated annual
compensation of the Trustee and shall be computed on the basis of the greatest
amount of Units in the Trust at any time during the period with respect to which
such compensation is being computed. The Trustee may from time to time adjust
its compensation as set forth above; provided, however, that total adjustment
upward does not, at the time of such adjustment, exceed the percentage of the
total increase, after the date hereof, in consumer prices for services as
measured by the United States Department of Labor Consumer Price Index entitled
"All Services Less Rent" or, if such Index is no longer published, in a similar
index as determined by the Trustee and Depositor. Further provided, however,
that the right of the Trustee to increase its fees shall not be cumulative and,
if not exercised by the Trustee for any calendar year, shall be deemed waived
for such calendar year. No exercise of its right to such increase shall be
effective unless made by the Trustee by means of notification to the Depositor
within 60 days following the publication of the annual consumer price
information referred to above. The consent or concurrence of any Unit Holder
shall not be required for any such adjustment or increase. Such compensation
shall be deemed to provide only for the usual normal and proper functions
undertaken as Trustee pursuant to this Indenture and, in addition, the Trustee
may charge, to the extent then lawful, the Income and Principal Accounts of the
Trust for any and all expenses including legal, auditing and printing expenses
of maintaining registration or qualification of the Units and/or the Trust under
Federal or state securities laws subsequent to initial registration so long as
the Depositor is maintaining a market for the Units and including the fees of
counsel which may be retained by the Trustee in connection with its activities
hereunder, and disbursements incurred hereunder and additional compensation for
any extraordinary services performed by the Trustee hereunder. In addition to
the foregoing compensation, as part of the Trustee's compensation for ordinary
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services performed under this Indenture, the Trustee shall be entitled to the
benefits to the Trustee that may result from reasonable cash balances in the
Income Account and the Principal Account. The Trustee shall be indemnified and
held harmless against any loss or liability accruing to it without negligence,
bad faith or wilful misconduct on its part, arising out of or in connection with
the acceptance or administration of this Trust, including the costs and expenses
(including counsel fees) of defending itself against any claim of liability in
the premises and including any loss, liability or expense incurred in acting
pursuant to directions to the Trustee given by the Depositor from time to time
in accordance with the provisions of this Indenture or in undertaking actions
from time to time which the Trustee deems necessary in its discretion to protect
the Trust and the rights and interests of Unit Holders pursuant to the
provisions of this Indenture. If the cash balances in the Income and Principal
Accounts shall be insufficient to provide for amounts payable pursuant to this
Section 6.04 the Trustee shall have the power to sell (i) Securities from the
current list of Securities designated to be sold pursuant to Section 5.02
hereof, or (ii) if no such Securities have been so designated, such Securities
as the Trustee may see fit to sell in its own discretion, and to apply the
proceeds of any such sale in payment of the amounts payable pursuant to this
Section 6.04. The Trustee shall promptly notify the Depositor of such action in
writing and shall set forth therein the Securities sold and the proceeds
received therefrom. The Trustee shall not be liable or responsible in any way
for depreciation or loss incurred by reason of any sale of Securities made
pursuant to this Section 6.04. Any monies payable to the Trustee pursuant to
this Section shall be secured by lien on the Trust prior to the interests of the
Unit Holders.
Section 6.05. Removal and Resignation of Trustee; Successor:
The following provisions shall provide for the removal and resignation of the
Trustee and the appointment of any successor trustee:
(a) the Trustee or any trustee or trustees hereafter appointed
may resign and be discharged of the trusts created by this Indenture,
by executing an instrument in writing resigning as Trustee of the Trust
and filing the same with the Depositor and mailing a copy of a notice
of resignation to all Unit Holders then of record, not less than sixty
days before the date specified in such instrument when, subject to
Section 6.05(e), such resignation is to take effect. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a
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successor trustee as hereinafter provided, by written instrument, in
duplicate, one copy of which shall be delivered to the resigning
Trustee and one copy to the successor trustee. If at any time the
Trustee shall become incapable of acting, or shall have an order of
relief entered with respect to it, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purposes of rehabilitation, conservation or liquidation, or, upon the
determination of the Depositor to remove the Trustee for any reason,
either with or without cause, including but not limited to a
determination by the Depositor that the Trustee has materially failed
to perform its duties under this Indenture and the interest of Unit
Holders has been substantially impaired as a result then in any such
case the Depositor may remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, one copy of which shall be
delivered to the Trustee so removed and one copy to the successor
trustee; provided that a notice of such removal and appointment of a
successor trustee shall be mailed by the Depositor to each Unit Holder
then of record;
(b) any successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Depositor and to the retiring Trustee an
instrument accepting such appointment hereunder, and such successor
trustee without any further act, deed or conveyance shall become vested
with all the rights, powers, duties and obligations of its predecessor
hereunder with the like effect as if originally named Trustee herein
and shall be bound by all the terms and conditions of this Indenture.
Upon the request of such successor trustee, the retiring Trustee shall,
upon payment of any amounts due the retiring Trustee, or provision
therefor to the satisfaction of such retiring Trustee, execute and
deliver an instrument acknowledged by it transferring to such successor
trustee all the rights and powers of the retiring Trustee; and the
retiring Trustee shall transfer, deliver and pay over to the successor
trustee all Securities and monies at the time held by it hereunder,
together with all necessary instruments of transfer and assignment or
other documents properly executed necessary to effect such transfer and
such of the records or copies thereof maintained by the retiring
Trustee in the administration hereof as may be requested by the
successor trustee, and shall thereupon be discharged from all duties
and responsibilities under this Indenture. The retiring Trustee shall,
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nevertheless, retain a lien upon all Securities and monies at the time
held by it hereunder to secure any amounts then due the retiring
Trustee;
(c) in case at any time the Trustee shall resign and no
successor trustee shall have been appointed or, if appointed, shall not
have accepted appointment within thirty days after notice of
resignation has been received by the Depositor, the retiring Trustee
may forthwith apply to a court of competent jurisdiction for the
appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee;
(d) any corporation into which any Trustee hereunder may be
merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which any Trustee
hereunder shall be a party, or any corporation succeeding to all or
substantially all of the business of the Trustee shall be the successor
trustee under this Indenture without the execution or filing of any
paper, instrument or further act to be done on the part of the parties
hereto; anything herein or in any agreement relating to such merger or
consolidation, by which any such trustee may seek to retain certain
powers, rights and privileges theretofore obtaining for any period of
time following such merger or consolidation, to the contrary
notwithstanding; and
(e) any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to this Section shall become effective
only upon acceptance of appointment by the successor trustee as
provided in subsection (b) hereof.
Section 6.06. Qualification of Trustee: The Trustee shall be a
corporation organized and doing business under the laws of the United States or
any state thereof which is authorized under such laws to exercise corporate
trust powers and having at all times an aggregate capital, surplus, and
undivided profits of not less than $5,000,000.
Section 6.07. Trustee's Response to Inquiries: The Trustee
shall deliver to the Depositor a copy of any written response to any non-routine
question or request at least one day before sending the response.
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Section 6.08. Waiver of Liens: No lien, encumbrance or
priority in favor of the Trustee against the assets of the Trust will affect
such assets or their proceeds after such assets or proceeds have been
distributed or paid to Unit Holders or to the Distribution Agent on their behalf
pursuant to the terms of the Indenture and upon any such distribution any lien,
encumbrance or priority previously attaching to such assets or their proceeds
shall without any further action on the part of the Trustee be automatically
thereupon released and relinquished by the Trustee.
ARTICLE VII
RIGHTS OF UNIT HOLDERS
Section 7.01. Beneficiaries of Trust: By the purchase and
acceptance or other lawful delivery and acceptance of a Unit of the Trust the
Unit Holder shall be deemed to be a beneficiary of such Trust and vested with
all rights, title and interest in the Trust to the extent of the Unit or Units
owned, subject to the terms and conditions of this Indenture.
Section 7.02. Rights, Terms and Conditions: In addition to the
other rights and powers set forth in the other provisions and conditions of this
Indenture the Unit Holders shall have the following rights and powers and shall
be subject to the following terms and conditions:
(a) a Unit Holder may at any time on any Business Day redeem
his Units in accordance with Section 5.02;
(b) the death or incapacity of any Unit Holder shall not
operate to terminate this Indenture or the Trust, nor entitle his legal
representatives or heirs to claim an accounting or to take any action
or proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them. Each Unit Holder expressly waives any
right he may have under any rule of law, or the provisions of any
statute, or otherwise, to require the Trustee at any time to account,
in any manner other than as expressly provided in this Indenture, in
respect of the Securities or monies from time to time received, held
and applied by the Trustee hereunder; and
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(c) no Unit Holder shall have any right to vote or in any
manner otherwise control the operation and management of the Trust, or
the obligations of the parties hereto, nor shall anything herein set
forth be construed so as to constitute the Unit Holders from time to
time as partners or members of any association; nor shall any Unit
Holder ever be under any liability to any third persons by reason of
any action taken by the parties to this Indenture, or any other cause
whatsoever.
ARTICLE VIII
DEPOSITOR
Section 8.01. Liabilities; Power of Attorney: The Depositor,
or the Depositors if there be more than one, shall be severally liable in
accordance herewith for the obligations imposed upon and undertaken by the
Depositor hereunder, provided, however, that, without in any way affecting or
diminishing such several liability, each Depositor of the Trust shall indemnify
the other Depositors thereof and hold such other Depositors harmless from and
against any and all costs, expenses and liabilities (including attorneys' fees)
which such other Depositors may suffer or incur as a result of or by reason of
any act or failure to act hereunder on the part of the indemnifying Depositor.
At all times prior to the termination of the Trust and while the Depositors
thereof shall continue to act jointly hereunder, there shall be maintained on
file with the Trustee a power of attorney executed in favor of one Depositor by
the other Depositors constituting and appointing the non-executing Depositor the
true and lawful agent and attorney-in-fact of the executing Depositors to
execute and deliver for and on behalf of the executing Depositors any and all
notices, opinions, certificates, lists, demands, directions, instruments, or
other documents provided or permitted to be executed or delivered by the
Depositors hereunder in connection with the Trust or to take any other action in
respect hereof. Such power of attorney shall continue in effect as to the
executing Depositors until written notice of revocation thereof has been given
by such executing Depositors to the Trustee. Prior to receipt of such notice of
revocation the Trustee shall be entitled to rely conclusively upon such power of
attorney as authorizing the non-executing Depositor to give any notice, opinion,
certificate, list, demand, direction, instrument or other document provided for
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or permitted hereunder or to take any other action in respect hereof on behalf
of the executing Depositors as to which such power of attorney is in effect.
Section 8.02. Discharge: If there be more than one Depositor,
the following provisions shall provide for the discharge of a Depositor and the
liability of the Depositors in the event of the discharge of a Depositor:
(a) in the event that any Depositor shall fail to undertake or
perform any of the duties which by the terms of this Agreement are
required by it to be undertaken or performed and such failure shall
continue for 30 days after notice to the Depositors from the Trustee or
if any Depositor shall become incapable of acting or shall have an
order of relief entered with respect to it, or a receiver of the
property of any Depositor shall be appointed or any public officer
shall take charge or control of any Depositor or its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then such Depositor shall forthwith be and shall be deemed to be
discharged forever as a Depositor hereunder and thereupon the remaining
Depositors shall act hereunder without the necessity of any other or
further action on its part or on the part of the Trustee;
(b) in the event that the power of attorney referred to in
Section 8.01 shall be revoked by written notice given by an executing
Depositor and it shall not be replaced within one business day by
another power of attorney conforming with the requirements of said
Section 8.01, the Depositors of the Trust shall be deemed to have been
unable to reach agreement with respect to action to be taken jointly by
them hereunder in connection with the Trust and thereupon the Depositor
which has revoked the power of attorney executed by it shall be
discharged hereunder upon the expiration of such one-day period and
thereupon the other Depositors shall act thereunder without the
necessity of any other or further action on their part or on the part
of the Trustee; and
(c) notwithstanding the discharge of a Depositor of the Trust
in accordance with this Section 8.02, such Depositor shall continue to
be fully liable in accordance with the provisions hereof in respect of
action taken or refrained from under this Agreement by the Depositors
before the date of such discharge or by the undischarged Depositors
before or after the date of such discharge, as fully and to the same
extent as if no discharge has occurred.
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Section 8.03. Successors: The covenants, provisions and
agreements herein contained shall in every case be binding upon any successor or
successors to any Depositor and shall be binding upon the General Partners of
any Depositor which may be a partnership and upon the capital interest of the
limited partners of any Depositor which may be a partnership. In the event of
the death, resignation or withdrawal of any partner of any Depositor which may
be a partnership, the partner so dying, resigning or withdrawing shall be
relieved of all further liability hereunder if at the time of such death,
resignation or withdrawal such Depositor maintains a net worth (determined in
accordance with generally accepted accounting principles) of at least
$1,000,000. In the event of an assignment by any Depositor to a successor
corporation or partnership as permitted by the next following sentence, such
Depositor and, if such Depositor is a partnership, its partners shall be
relieved of all further liability under this Indenture. Any Depositor may
transfer all or substantially all of its assets to a corporation or partnership
which carries on the business of such Depositor, if at the time of such transfer
such successor duly assumes all the obligations of such Depositor under this
Indenture.
Section 8.04. Resignation: If at any time any Depositor of the
Trust shall desire to resign its position as such a Depositor hereunder and if
at such time the other Depositors of the Trust each maintains a net worth
(determined in accordance with generally accepted accounting principles) of at
least $1,000,000 and is agreeable to such resignation, the Depositor desiring to
resign may resign by delivering to the Trustee an instrument executed by such
resigning Depositor and consented to by the remaining Depositors and upon such
delivery, the resigning Depositor shall be discharged and shall no longer be
liable in any manner hereunder except as to acts or omissions occurring prior to
such delivery and the remaining Depositors shall thereupon perform all duties
and be entitled to all rights under the Agreement; provided, however, that
concurrently with or subsequent to such resignation the remaining Depositors and
the Trustee may appoint a new Depositor to act with the remaining Depositors and
to assume the duties of the resigning Depositor by an instrument executed by the
remaining Depositors, the Trustee and the new Depositor or proceed as provided
in Section 6.01(f). Such new Depositor shall not be under any liability
hereunder for occurrences or omissions prior to the effective time of execution
of such instrument.
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Section 8.05. Additional Depositors: The Depositor may at any
time appoint one or more corporations or partnerships to act as new Depositor,
in addition to those currently serving, by an instrument executed by such
Depositor, the Trustee, and such corporations or partnerships; provided,
however, that at the time of such execution each new Depositor maintains a net
worth (determined in accordance with generally accepted accounting principles)
of at least $1,000,000. Upon such execution, a new Depositor shall be deemed to
be a depositor for all purposes under this Indenture, and the covenants,
provisions and agreements herein contained shall in every case be binding upon
such new Depositor and shall be binding upon the General Partner of any such new
Depositor which may be a partnership and upon the capital interest of the
limited partners of any such new Depositor which may be a partnership, but such
new Depositor shall not be liable hereunder for occurrences or omissions prior
to the effective time of execution of such instrument.
Section 8.06. Exclusions from Liability: The following
provisions provide for certain exclusions from the liability of the Depositor:
(a) no Depositor shall be under any liability to any other
Depositor, the Trust or the Unit Holders thereof, for any action taken
or for refraining from the taking of any action in good faith pursuant
to this Agreement, or for errors in judgment or liable or responsible
in any way for depreciation or loss incurred by reason of the
acquisition or sale of any Securities; provided, however, that this
provision shall not protect the Depositor against any liability to
which it would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of its duties or by
reason of its reckless disregard of its obligations and duties
hereunder. The Depositor may rely in good faith on any paper, order,
notice, list, affidavit, receipt, evaluation, opinion, endorsement,
assignment, draft or any other document of any kind prima facie
properly executed and submitted to them, or any of them, by any other
Depositor, the Trustee, counsel to an issuer of a Security, or any
other person. The Depositor shall in no event be deemed to have assumed
or incurred any liability, duty, or obligation to any Unit Holder or
the Trustee other than as expressly provided for herein;
(b) the Depositor shall not be under any obligation to appear
in, prosecute or defend any legal action which in its opinion may
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involve it in any expense or liability; provided, however, that the
Depositor may in its discretion undertake any such action which it may
deem necessary or desirable in respect of this Indenture and the rights
and duties of the parties hereto and the interests of the Unit Holders
hereunder; and
(c) none of the provisions of this Indenture shall be deemed
to protect or purport to protect the Depositor against any liability to
the Trust or to the Unit Holders thereof or to each other (if there is
more than one Depositor) to which the Depositor would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence
in the performance of the duties of the Depositor, or by reason of the
Depositor's reckless disregard of the obligations and duties of the
Depositor under this Indenture.
Section 8.07. Compensation: The Portfolio Supervisor shall
receive at the times set forth in Section 3.05 as compensation for performing
portfolio supervisory services, such amounts, and for such periods, as are
specified in the Reference Trust Agreement. The computation of such compensation
shall be made on the basis of the greatest number of Units in the Trust at any
time during which such compensation is being computed. At no time, however, will
the total amount received by the Portfolio Supervisor for services rendered to
all series of the National Equity Trust in any calendar year exceed the
aggregate cost to it of supplying such services in such year except to the
extent permitted by law. Such rate may be increased from time to time, without
the consent or approval of any Unit Holder or the Trustee, by amounts not
exceeding the proportionate increase during the period from the date of such
Reference Trust Agreement to the date of any such increase, in consumer prices
as published either under the classification "All Services Less Rent" in the
Consumer Price Index published by the United States Department of Labor or, if
such Index is no longer published, a similar index.
ARTICLE IX
ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS
Section 9.01. Amendments without the Consent of Unit Holders:
This Indenture may be amended from time to time by the parties hereto or their
respective successors, without the consent of any of the Unit Holders (a) to
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cure any ambiguity or to correct or supplement any provisions contained herein
which may be defective or inconsistent with any other provisions contained
herein; (b) to change any provision hereof as may be required by the Securities
and Exchange Commission or any successor governmental agency exercising similar
authority; or (c) to make such other provision in regard to matters or questions
arising hereunder as shall not adversely affect the interest of the Unit
Holders; provided, that the Indenture may also be amended from time to time by
the parties hereto (or the performance of any of the provisions of this
Indenture may be waived) with the consent of Unit Holders evidencing 51% of the
Units at the time outstanding under the Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Unit Holders;
provided, further, however, that this Indenture (including any Reference Trust
Agreement) may not be amended (nor may any provision thereof be waived) so as to
(1) increase the number of Units issuable in respect of the Trust above the
aggregate number specified in Part II of the Reference Trust Agreement or such
lesser amount as may be outstanding at any time during the term of this
Indenture, except as the result of the deposit of Additional Securities, as
herein provided, or as otherwise provided herein, or reduce the relative
interest in the Trust of any Unit Holder without his consent, (2) permit the
deposit or acquisition hereunder of securities or other property either in
addition to or in substitution for any of the Securities except in the manner
permitted by the Trust Indenture as in effect on the date of the first deposit
of Securities under a particular Indenture or permit the Trustee to engage in
business or investment activities not specifically authorized in this Indenture
as originally executed or (3) adversely affect the characterization of the Trust
as a grantor trust for federal income tax purposes.
Section 9.02. Notice of Amendment: Promptly after the
execution of any amendment the Trustee shall furnish written notification of the
substance of such amendment to all Unit Holders then of record at their
addresses appearing on the registration books of the Trustee.
Section 9.03. Termination: This Indenture and the Trust
created hereby shall terminate upon the redemption, sale or other disposition,
as the case may be, of the last Security held in the Trust hereunder unless
sooner terminated as hereinbefore specified and may be terminated at any time by
the written consent of the Holders of Fifty One percent of the Units of the
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Trust then outstanding; provided, that in no event shall this Trust continue
beyond the Termination Date as set forth in Part II of the Reference Trust
Agreement. Written notice of any termination shall be given by the Trustee to
each Unit Holder of record at his address appearing on the registration books of
the Trustee.
(a) Within a reasonable period of time after termination of
the Trust the Trustee shall liquidate such Securities as it shall deem necessary
for payment of Trust expenses and shall:
(i) deduct from the Income Account of the Trust or,
to the extent that funds are not available in such account, from
the Principal Account of the Trust and pay to itself individually
an amount equal to the sum of (1) its accrued compensation for its
ordinary recurring services in connection with the Trust, (2) any
compensation due it for its extraordinary services and (3) any
costs, expenses or indemnities in connection with the Trust as
provided herein;
(ii) deduct from the Income Account or, to the extent
that funds are not available in such Account, from the Principal
Account and pay accrued and unpaid fees to the Depositor pursuant
to Section 3.05;
(iii) deduct from the Income Account of the Trust or,
to the extent that funds are not available in such Account, from
the Principal Account of the Trust, any amounts which may be
required to be deposited in the Reserve Account of the Trust to
provide for payment of any applicable taxes or other governmental
charges and any other amounts which may be required to meet
expenses incurred under this Indenture in connection with the
Trust;
(b) (i) If the Trust shall terminate on the Termination Date
provided in the Reference Trust Agreement, the Trustee shall distribute the
remaining Securities in the Principal Account plus the cash balances in the
Principal and Income Accounts to the Distribution Agent for distribution in
accordance with the Distribution Agency Agreement.
(ii) If the Trust shall terminate on a date other than the
Termination Date, the Trustee shall fully liquidate the remaining Securities in
the Principal Account and shall distribute to each Unit Holder such Unit
Holder's pro rata interest in the balance of the Income Account and Principal
Account of the Trust.
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The amounts to be so distributed to each Unit Holder shall be
that pro rata share of the balance of the total Income and Principal Accounts of
the Trust as shall be represented by the Units therein held by such Unit Holder.
(c) Together with such distribution to each Unit Holder as
provided for in (b) of this Section, the Trustee shall furnish to each such Unit
Holder a final distribution statement as of the date of computation of the
amount distributable to Unit Holders, setting forth the information in
substantially the form and manner provided for in Section 3.06 hereof, except
that, with respect to distribution made pursuant to such Paragraph b(i) of this
Section, such statement shall show the Securities delivered to the Distribution
Agent.
(d) The Trustee shall distribute to each Unit Holder any
dividends, which on the Termination Date were declared, but not received, net of
any and all expenses not previously deducted, within a reasonable time of their
receipt.
The Trustee shall be under no liability with respect to monies
held by it in the Income, Reserve and Principal Accounts upon termination except
to hold the same in trust without interest until disposed of in accordance with
the terms of this Indenture.
Section 9.04. Construction: This Indenture is executed and
delivered in the State of New York and all laws or rules of construction of such
State shall govern the rights of the parties hereto and the Unit Holders and the
interpretation of the provisions hereof. Headings and titles herein are for
convenience only and should not influence such interpretation.
Section 9.05. Written Notice: Any notice, demand, direction or
instruction to be given to the Depositor hereunder shall be in writing and shall
be duly given if mailed or delivered to the Depositor c/o Prudential Investment
Management Services LLC at 000 Xxxxxxxx Xxxxxx, Xxxxxxx Center Three, Newark,
New Jersey 07102 or at such other address as shall be specified by the Depositor
to the other parties hereto in writing. Any notice to be given to the Unit
Holders shall be duly given if mailed or delivered to each Unit Holder at the
address of such holder appearing on the registration books of the Trustee. Any
notice, demand, direction or instruction to be given to the Trustee hereunder
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shall be in writing and shall be given if mailed or delivered to the Trustee at
its office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
address as shall reasonably be specified by the Trustee in writing to the other
parties hereto.
Section 9.06. Severability: If any one or more of the
covenants, agreements, provisions or terms of this Indenture shall be held
contrary to any express provision of law or contrary to policy of express law,
though not expressly prohibited, or against public policy, or shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Indenture and shall in no way affect the validity or
enforceability of the other provisions of this Indenture or the rights of the
holders thereof.
Section 9.07. Dissolution of Depositor Not To Terminate: The
dissolution of one or all of the Depositors (if more than one) from or for any
cause whatsoever shall not operate to terminate this Indenture insofar as the
duties and obligations of the Trustee are concerned.
Section 9.08. Name: Depositor reserves the right to use the
name "National Equity Trust," with a distinguishing series number or name,
without the consent of the Trustee.
IN WITNESS WHEREOF, Prudential Investment Management Services
LLC has caused this Trust Indenture and Agreement to be executed by one of its
authorized officers and its corporate seal to be hereto affixed and attested by
its Secretary or Assistant Secretary and 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 by one of its Assistant Secretaries all as of the day, month and year
first above written.
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PRUDENTIAL INVESTMENT MANAGEMENT SERVICES LLC,
(Depositor)
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Xxxxxxx Xxxxxxx
Vice President
PRUDENTIAL SECURITIES INCORPORATED
(Portfolio Supervisor)
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Xxxxxxx Xxxxxxx
Vice President
BANK OF NEW YORK,
Trustee
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
Assistant Vice President
(SEAL)
ATTEST:
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
Assistant Secretary
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
I, Xxxxxxxx X. Lytles, a Notary Public in and for the said
County in the State aforesaid, do hereby certify that Xxxxx Xxxxxx and Xxxxx
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 an Assistant Vice
President and Assistant Secretary, respectively, of Bank of New York, a
corporation, appeared before me this day in person, and acknowledged that they
signed, sealed with the corporate seal of Bank of New York, and delivered the
said instrument as their free and voluntary act as such Assistant Vice President
and Assistant Secretary, respectively, and as the free and voluntary act of said
Bank of New York for the uses and purposes therein set forth.
GIVEN, under my hand and notarial seal this 6th day of
August, 2001.
/s/ Xxxxxxxx X. Lytles
----------------------------
Notary Public
(SEAL)
