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THE XXXX XXXXXX SELECT EQUITY TRUST
TRUST INDENTURE AND AGREEMENT
for all series formed on or subsequent to the
effective date specified below
Between
XXXX XXXXXX XXXXXXXX INC.
As Depositor
and
THE BANK
OF NEW YORK
As Trustee
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Dated: September 30, 1993
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TRUST INDENTURE AND AGREEMENT
The Xxxx Xxxxxx Select Equity Trust
TABLE OF CONTENTS
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PAGE
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PREAMBLES......................................................................1
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.....................................................9
ARTICLE II
DEPOSIT OF SECURITIES; ACCEPTANCE OF TRUST
Section 2.01. Deposit of Securities..........................................12
Section 2.02. Acceptance of Trust............................................13
Section 2.03. Issue of Units.................................................13
Section 2.04. Form of Certificates...........................................14
Section 2.05. Uncertificated Units...........................................14
Section 2.06. Deposit of Additional Securities...............................15
Section 2.07. Register of Units..............................................17
Section 2.08. Printing and Custodianship of Certificates.....................17
Section 2.09. Voting Rights..................................................17
ARTICLE III
ADMINISTRATION OF TRUST
Section 3.01. Initial Cost...................................................17
Section 3.02. Income Account.................................................17
Section 3.03. Principal Account..............................................18
Section 3.04. Reserve Account................................................18
Section 3.05. Distribution...................................................18
Section 3.06. Distribution Statements........................................20
Section 3.07. Replacement Securities.........................................22
Section 3.08. Sale of Securities.............................................23
Section 3.09. Notice and Sale by Trustee.....................................24
Section 3.10. Refunding of Securities........................................25
Section 3.11. Notice of Actions..............................................25
Section 3.12. Extraordinary Distributions....................................25
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ARTICLE IV
EVALUATION OF SECURITIES
PAGE
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Section 4.01. Evaluation of Securities.......................................26
Section 4.02. Tax Reports....................................................27
Section 4.03. Liability of the Trustee.......................................27
ARTICLE V
TRUST EVALUATION, REDEMPTION,
TRANSFER, INTERCHANGE OR REPLACEMENT
OF CERTIFICATES
Section 5.01. Trust Evaluation...............................................28
Section 5.02. Redemptions by Trustee; Purchases by Depositor.................29
Section 5.03. Transfer or Interchange of Certificates........................32
Section 5.04. Certificates Mutilated, Destroyed, Stolen or Lost..............33
ARTICLE VI
TRUSTEE
Section 6.01. General Definition of Trustee's Liabilities, Rights and Duties.34
Section 6.02. Books, Records and Reports.....................................38
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. Qualifications of Trustee......................................41
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..........................................45
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Section 8.06. Exclusions from Liability......................................46
Section 8.07. Compensation...................................................47
ARTICLE IX
ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS
Section 9.01. Amendments.....................................................47
Section 9.02. Notice of Amendment............................................48
Section 9.03. Termination....................................................48
Section 9.04. Construction...................................................51
Section 9.05. Written Notice.................................................51
Section 9.06. Severability...................................................51
Section 9.07. Dissolution of Depositor Not to Terminate......................52
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 September 30, 1993 between
XXXX XXXXXX XXXXXXXX INC., 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 Xxxx Xxxxxx Select Equity Trust and each
subsequent Series which may be established from time to time hereafter
incorporating by reference the terms hereof; and
WHEREAS, for the Xxxx Xxxxxx Select Equity Trust and each
subsequent Series thereof 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 and subsequent
Computation Dates; (v) the first and subsequent quarterly or other Distribution
Dates; (vi) the first and subsequent Record Dates; (vii) the name of the
Depositor; (viii) the Mandatory Termination Date; (ix) the Discretionary
Liquidation Amount; (x) the Depositor's fee; (xi) the Trustee's fee; (xii) the
Date of Deposit and the Series name of the Trust; and (xiii) any other change or
addition contemplated or permitted by this Trust Indenture and Agreement; and
WHEREAS, the Depositor will acquire and, concurrently with the
execution and delivery of the appropriate Reference Trust Agreement, will
deposit in trust with the Trustee the Securities to be listed in the Schedule
thereto, all to be held by the Trustee in trust upon the terms and conditions
hereinafter set forth as amended, supplemented or varied by such Reference Trust
Agreement, for the use and benefit of all registered holders of units of
fractional undivided interest in the Trust to which such Reference Trust
Agreement relates; and
WHEREAS, concurrently with the receipt of the aforesaid
deposit, the Trustee will record on its books the ownership by the Depositor
thereof of units of fractional undivided interest in such Securities and in the
Income Account and the
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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 at
such time in such Securities, Income Account and Principal Account) and if the
Depositor 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.
WHEREAS, the form of the Certificates shall be substantially
as follows:
Number Units
----- -----
CERTIFICATE OF OWNERSHIP
-Evidencing-
An Undivided Interest
-in-
THE XXXX XXXXXX SELECT EQUITY TRUST, ____ SERIES ___
This is to certify that __________ is the owner and registered
holder of this Certificate evidencing the ownership of _______ Unit(s) of
fractional undivided interest in the particular series of the Xxxx Xxxxxx Select
Equity Trust noted on the face hereof (herein called the "Trust"), created under
the laws of the State of New York by the Trust Indenture and Agreement
(hereinafter called the "Indenture") dated as of the date of deposit (the "Date
of Deposit") between Xxxx Xxxxxx Xxxxxxxx Inc. (hereinafter called the
"Depositor") and The Bank of New York (hereinafter called the "Trustee").
The Trust consists of (1) Securities, as defined in the
Indenture, as may from time to time be held in the Trust (including (i)
contracts, if any, for the purchase of certain of the Securities together with
moneys and/or letters of credit in an amount sufficient to pay for such
Securities and (ii) reinvestment securities, if any) and (2) such amounts as
from time to time may be held in the Income Account and the Principal Account
maintained under the Indenture in the manner described below.
At any given time this Certificate shall represent a
fractional undivided interest in the Trust, the numerator of which fraction
shall be the number of Units set forth on the face hereof and the denominator of
which shall be the total number of Units of undivided interest which are
outstanding at
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such time. The Indenture permits the Depositor to deposit
additional Securities from time to time with the Trustee, at which times the
Trustee will deliver to the Depositor Certificates for Units representing the
additional Securities deposited with the Trust.
The provisions of this Certificate are continued on the
reverse side hereof and such continued provisions shall for all purposes have
the same effect as though fully set forth in this place.
This Certificate shall not become valid or binding for any
purpose until properly executed by the Trustee under the Indenture.
IN WITNESS WHEREOF, The Bank of New York, as Trustee, has
caused this Certificate to be manually executed in its corporate name by an
authorized officer and Xxxx Xxxxxx Xxxxxxxx Inc., as Depositor, has caused this
Certificate to be executed in its name by the facsimile signature of one of its
Authorized Officers.
Date: ,
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XXXX XXXXXX XXXXXXXX INC., THE BANK OF NEW YORK,
Depositor Trustee
By By
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Authorized Officer Authorized Officer
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[REVERSE SIDE OF CERTIFICATE]
XXXX XXXXXX SELECT EQUITY TRUST
The Depositor hereby grants and conveys all of its right,
title and interest in and to the Trust to the extent of the fractional undivided
interest represented hereby to the registered holder of this Certificate subject
to and in pursuance of the Indenture, all the terms, conditions and covenants of
which are incorporated herein as if fully set forth at length.
The registered holder of this Certificate is entitled at any
time upon tender of this Certificate to the Trustee, endorsed in blank or
accompanied by all necessary instruments of assignment and transfer in proper
form, at its office at New York, New York and, upon payment of any tax or other
governmental charges, to receive on or before the seventh calendar day following
the day on which such tender is made or, if such calendar day is not a Business
Day (as defined in the Indenture), on the first Business Day prior to such
calendar day, an amount in cash or cash equivalents, or Securities in kind if
such option is offered by the Depositor, equal to the evaluation of the
fractional undivided interest in the Trust evidenced by this Certificate, upon
the basis provided for in the Indenture. The right of redemption may be
suspended and the date of payment may be postponed for any period during which
the New York Stock Exchange is closed, other than customary weekend or holiday
closings; for any period during which the Securities and Exchange Commission has
determined that trading on that Exchange is restricted or an emergency exists as
a result of which disposal or evaluation of any of the Securities held in the
Trust is not reasonably practicable; or for such other periods as the Securities
and Exchange Commission may by order permit.
The Depositor has the right under certain circumstances set
forth in the Indenture to purchase any Certificate tendered to the Trustee for
redemption no later than the next business day following tender at a price not
less than the Redemption Price.
Income received by the Trustee as part of the Trust shall be
credited by the Trustee to the Income Account. With certain exceptions specified
in the Indenture, all other moneys received by the Trustee as a part of the
Trust shall be credited to a separate Principal Account.
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The Record Dates and Distribution Dates are as set forth in
the Indenture.
The fractional undivided interest represented by this
Certificate with respect to the Income and Principal Accounts (after the
deductions referred to below) shall be distributed on, or shortly after, each
Distribution Date in the manner and subject to the limitations specified in the
Indenture. All distributions from the Income and Principal Accounts shall be
made to the holder of record of this Certificate at the close of business on the
Record Date prior to the Distribution Date on which such distributions are made.
No distributions need be made from the Principal Account if
the balance therein is less than an amount specified in the Indenture.
Distributions from the Income and Principal Accounts shall be
made either by mail to the post office address of the holder hereof appearing on
the registration books of the Trustee or by such other means as shall be
mutually agreed upon between the holder and the Trustee. A Unit Holder shall
notify the Trustee in writing of any change of address.
From time to time deductions shall be made from the Income and
Principal Accounts, as more fully set forth in the Indenture, for redemption of
Units, compensation of the Depositor, compensation of the Trustee, reimbursement
of certain expenses and advances incurred by or on behalf of the Trustee (other
than such expenses borne by the Trustee), certain legal and auditing expenses
and payment of, or the establishment of a reserve for, applicable taxes or
governmental charges, if any.
Shortly after the end of each calendar year the Trustee shall
furnish to the registered holder of this Certificate a statement setting forth,
among other things, the amounts received by the Trust and deductions therefrom
and the amounts distributed during the preceding year in respect of income on,
and redemptions and sales of, Securities held in the Trust.
This Certificate shall be transferable by the registered
holder hereof by presentation and surrender hereof at the unit investment trust
office of the Trustee properly endorsed hereon or accompanied by a written
instrument or instruments of transfer in form satisfactory to the Trustee and
executed by the registered holder or his authorized attorney. Certificates of
this Series are interchangeable for one or more Certificates of such Series in
an equal aggregate number of Units of frac-
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tional undivided interest at the unit investment trust office of the Trustee in
denominations of one Unit of fractional undivided interest or any multiple
thereof that may be deemed appropriate by the Trustee.
The holder hereof may be required to pay a charge of $2.00 (or
such other amount as may be determined by the Trustee) in connection with the
transfer or interchange of this Certificate and any tax or other governmental
charge that may be imposed in connection with the transfer, interchange or other
surrender of this Certificate.
The holder of this Certificate, by virtue of the purchase and
acceptance hereof, assents to and shall be bound by the terms of the Indenture,
copies of which are on file and available for inspection at reasonable times
during business hours at the unit investment trust office of the Trustee, to
which Indenture reference is made for all the terms, conditions and covenants
thereof.
The Trustee may deem and treat the person in whose name this
Certificate is registered upon the books of the Trustee as the owner hereof for
all purposes and the Trustee shall not be affected by any notice to the
contrary.
Units may also be held in uncertificated form. Holders of
Units evidenced by Certificates may at any time elect to have their Units held
in uncertificated form by surrendering their Certificates to the Trustee for
cancellation. At such time, an appropriate notation will be made in the
registration books of the Trustee to indicate that the Units formerly evidenced
by such cancelled Certificates are held in uncertificated form. The Trustee
shall, at the request of the holder of any Units held in uncertificated form,
issue a new Certificate or certificate in quantities and denominations as
requested by the holder and deemed appropriate by the Trustee, subject to a
$2.00 per certificate charge, to evidence such Units and at such time make an
appropriate notation in the registration books of the Trustee. Uncertificated
Units are transferable and interchangeable by the holder or his duly authorized
attorney at the unit investment trust office of the Trustee upon delivery of an
instrument of transfer and related documents in form satisfactory to the Trustee
and payment of any tax or other governmental charges, fees and expenses
applicable thereto. The rights of any holder of Units held in uncertificated
form set forth in the Indenture are the same as the rights of any holder of
Units evidenced by Certificates under such Indenture.
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The Indenture and the Trust created thereby shall terminate on
the Mandatory Termination Date as defined in the Indenture. The Indenture
provides that the Trust may be terminated prior to such date under certain
circumstances which include the sale or other disposition of the last Security
held thereunder, a decrease in the value of the Trust to less than the amount
specified in the Indenture or upon the vote of the holders of 51% of all Units
outstanding. Upon any termination the Trustee shall sell, or distribute in kind
if so directed by the Depositor, all of the Securities then held, if any, and
distribute pro rata the funds then held in the Trust upon the surrender of the
Certificates, all in the manner provided in the Indenture. Upon the termination,
the Trustee shall be under no further obligation with respect to the Trust,
except to hold such funds in trust, without interest, until distribution as
aforesaid and shall have no duty upon any termination to communicate with the
holder hereof other than by mail at the address of such holder appearing on the
registration books of the Trustee.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof, the modification of the rights and the
obligations of the Depositor, the Trustee and the registered holders of Units
thereunder and the waiver of the performance of any of the provisions thereof at
any time with the consent of the holders of Units evidencing 51% of the Units at
any time outstanding under the Indenture. Any such consent or waiver by the
holder of a Unit shall be conclusive and binding upon such holder of a Unit and
upon all future holders of Units and shall be binding upon any Unit whether
evidenced by a Certificate or held in uncertificated form, issued upon the
registration or transfer hereof whether or not notation of such consent or
waiver is made upon this Certificate and whether or not the Unit(s) evidenced
hereby are at such time in uncertificated form. The Indenture also permits the
amendment thereof, in certain limited circumstances, without the consent of any
holders of Units.
This Certificate shall not become valid or binding for any
purpose until properly executed by the Trustee under the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
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TEN COM - as tenants in common
TEN ENT - as tenants by the entirety
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT............Custodian..........
(Cust) (Minor)
under Uniform Gifts to Minor Act
................................
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, __________hereby sell(s), assign(s) and
transfer(s) _______ Units unto ______________
----------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF
ASSIGNEE
--------------------------------
the within Certificate and does hereby irrevocably constitute and appoint
______________________, attorney, to transfer said Certificate on the books of
the Trustee, with full power of substitution in the premises.
Dated:
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Notice: The signature to this
assignment must correspond with the
name as written upon the face of the
Certificate or as recorded on the
books of the Trustee, as the case
may be, in every particular, without
alteration or enlargement or any
change whatever.
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ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS: Whenever used in this Indenture,
the following words and phrases, unless the context clearly indicates otherwise,
shall have the following meanings:
(1) "Additional Securities" shall mean such Securities (as
defined herein) as are listed in Supplemental Schedules to a
Supplemental Indenture and which have been deposited to effect an
increase over the number of Units initially specified in Part II of
the Reference Trust Agreement.
(2) "Additional Deposited Units" shall mean such Deposited
Units (as defined herein) as are listed in schedules to a
Supplemental Indenture and which are deposited in connection with an
increase in the number of Units initially specified in an Indenture.
(3) "Additional Units" shall mean such Units (as defined
herein) as are issued in respect of Additional Securities and
Additional Deposited Units, if any.
(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,
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) "Certificate" shall mean any one of the certificates
executed by the Trustee and the Depositor evidencing ownership of an
individual fractional interest in the Trust.
(7) "Computation Day" shall have the meaning assigned to it in
Part II of the Reference Trust Agreement.
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(8) "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 2.06 and 3.07.
(9) "Deposited Units" shall mean such units of a previous
series of Xxxx Xxxxxx Select Equity Trust as are listed on a
Schedule to the Reference Trust Agreement.
(10) "Depositor" of the Trust shall have the meaning assigned
to it in Part II of the Reference Trust Agreement.
(11) "Distribution Date" shall have the meaning assigned to it
in Part II of the Reference Trust Agreement relating to such Trust.
(12) "Evaluation Time" shall mean the close of trading on the
New York Stock Exchange, presently 4:00 p.m. or such other time as
is designated as the Evaluation Time in the prospectus for a Trust.
(13) "First Settlement Date" of the Trust shall have the
meaning assigned to it in Part II of the Reference Trust Agreement
relating to such Trust.
(14) "Indenture" shall mean the Basic Agreement, as further
amended, supplemented or varied by the Reference Trust Agreement.
(15) "In-Kind Date" shall have the meaning assigned to it in
Part II of the Reference Trust Agreement.
(16) "Record Date" shall have the meaning assigned to it in
Part II of the Reference Trust Agreement.
(17) "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 the Xxxx Xxxxxx Select Equity Trust
to which such Reference Trust Agreement relates.
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(18) "Replacement Security" shall mean a Security purchased by
the Trustee pursuant to Section 3.07 hereof.
(19) "Restricted Securities" shall mean Securities which were
acquired in private placements and which at the time could not, in
the opinion of counsel designated by the Depositor and satisfactory
to the Trustee, be sold publicly by the Trustee without registration
(or perfection of an exemption) under the Securities Act of 1933, as
amended (or similar provisions of law subsequently enacted).
(20) "Securities" shall mean such stock, common or preferred
(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) and such Deposited Units, as are (i) deposited in
irrevocable trust and listed in the Schedule or Supplemental
Schedules to the Reference Trust Agreement and (ii) received in
exchange or substitution for any Securities pursuant to Section 3.07
and Section 3.10 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.
(22) "Supplemental Indenture" shall mean an amendment or
supplement to the Reference Trust Agreement executed pursuant to
Section 2.06 hereof for the purpose of making additional deposits of
Securities in the Trust and issuing a corresponding amount of
Additional Units.
(23) "Supplemental Schedule" shall mean a schedule to the
Supplemental Indenture listing the Additional Securities deposited.
(24) "Termination Date" shall mean the date set forth in Part
II of the Reference Trust Agreement.
(25) "Trust" shall mean the trust created by this Indenture,
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 pur-
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suant 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.
(26) "Trustee" shall mean The Bank of New York, or any
successor trustee as hereinafter provided for.
(27) "Unit" shall mean the fractional undivided interest in
and ownership of 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 Section 5.02
and increased by the number of any Additional Units as provided in
Section 2.06.
(28) "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.
(29) 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.
(30) Words importing the singular number shall include the
plural number in each case and vice versa and words importing
persons shall include corporations and associations, as well as
natural persons.
ARTICLE II
DEPOSIT OF SECURITIES; ACCEPTANCE OF TRUST
Section 2.01. DEPOSIT OF SECURITIES: The Depositor, on the
date of the applicable Reference Trust Agreement, has deposited with the Trustee
in trust the Securities listed in
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the Schedule or Schedules attached to such 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. 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 Replacement Securities in accordance with Section 3.07 hereof, shall
be distributed to Unit Holders pursuant to Section 3.05 hereof on the
Distribution Date next following the failure of consummation of such purchase or
such earlier date as the Depositor and the Trustee determine. The Depositor
shall deliver the Securities listed on said Schedule or Schedules to the Trustee
which were not actually delivered concurrently with the execution and delivery
of the Reference Trust Agreement within 90 days after said execution and
delivery or, if Section 3.07 applies, within such shorter period as is specified
in Section 3.07.
The Trustee is irrevocably authorized hereby to effect
registration of transfer of the Securities in fully registered form in the name
of the Trustee or its nominee.
Section 2.02. ACCEPTANCE OF TRUST: The Trustee hereby accepts
the Trust created by this Indenture for the use and benefit of the Unit Holders
in the Trust, subject to the terms and conditions of this Indenture.
Section 2.03. ISSUE OF UNITS: By executing the Reference Trust
Agreement 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 and shall, if so requested, issue Certificates evidencing such Units.
The Trustee hereby agrees that, on the date of any
Supplemental Schedule to the Reference Trust Agreement, it shall acknowledge
that the Additional Securities identified therein have been deposited with it by
recording on its books the ownership by the Depositor, or such other person or
persons as may be indicated by the Depositor, of the aggregate number
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of Additional Units to be issued in respect of such Additional Securities so
deposited, and shall, if so requested, execute Certificates substantially in the
form above recited representing the ownership of an aggregate number of such
Additional Units.
Under the terms and conditions and at such times as are
permitted by the Trustee, Units may also be held in uncertificated form. Unit
Holders may elect to have their Units held in uncertificated form by
surrendering their Certificates to the Trustee for cancellation. At such time,
an appropriate notation will be made on the registration books of the Trustee to
indicate that the Units formerly evidenced by such cancelled Certificates are
Units held in uncertificated form. The Trustee shall, at the request of the
holder of any Units held in uncertificated form, subject to a $2.00 per
certificate charge, issue a new Certificate to evidence such Units and at such
time make an appropriate notation in the registration books of the Trustee. The
rights set forth in this Indenture of any holder of Units held in uncertificated
form shall be the same as those of any other Unit Holder.
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 Prospectus.
Section 2.04. FORM OF CERTIFICATES: Each Certificate referred
to in Section 2.03 shall be in substantially the form hereinabove recited,
numbered serially for identification, in fully registered form, transferable
only on the books of the Trustee as herein provided, executed manually or in
facsimile by an authorized officer of the Trustee and in facsimile by an
authorized officer of the Depositor of the Trust to which the Certificate
relates, and dated the date of execution and delivery by the Trustee.
Section 2.05. UNCERTIFICATED UNITS: All Units may be held in
uncertificated form, unless and as the Trustee may deem it appropriate to issue
certificates provided that the Trustee shall issue Certificates 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
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owner thereof for all purposes and the Trustee shall not be affected by any
notice to the contrary.
Section 2.06. DEPOSIT OF ADDITIONAL SECURITIES: From time to
time and in the discretion of the Depositor, the Depositor may make deposits of
Additional Securities duly endorsed in blank or accompanied by all necessary
instruments of assignment and transfer in proper form (or contracts to purchase
Additional Securities and cash or an irrevocable letter of credit in an amount
necessary to consummate the purchase of any Additional Securities pursuant to
such contracts ("Additional Contract Securities")) and 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. For purposes of this paragraph, Cash
means cash on hand in the Trust and/or cash receivable by the Trust as of the
date of the supplemental deposit reduced by payables and accrued expenses.
Accordingly, for a deposit subsequent to the 90-day period
following the first deposit of Securities:
1. Any Additional Securities included in a deposit shall be
identical to Securities held in the Trust immediately prior to the deposit and
in amounts such that (i) the number of shares of Additional Securities of a
particular issue included in a deposit divided by (ii) the aggregate of the
number of shares of all Additional Securities included in the deposit results in
a fraction which is the same as the fraction resulting from division of (iii)
the aggregate number of shares of the Securities of the same issue held in the
Trust immediately prior to the deposit divided by (iv) the aggregate number of
shares of all Securities held in the Trust immediately prior to the deposit;
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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; and for deposit during the 90-day period following the first deposit of
Securities in the Trust, the rules stated in subparagraphs (1) and (2) of this
paragraph shall apply except that any Additional Securities (including
Additional Contract Securities) need be only substantially similar (rather than
identical to) Securities held in the Trust immediately prior to the deposit and
need meet the proportionality requirements only to the extent practicable.
Without limiting the generality of the phrase "to the extent practicable", if
the Depositor specifies a minimum number of shares of a Security with respect to
a particular trust to be included in a deposit and such minimum requirement
cannot be met or if a Security identical to a Security held in the Trust is not
readily obtainable, substitution of other substantially similar Securities
(including Securities of an issue originally deposited) in order to meet the
foregoing proportionality requirements shall be considered as a meeting of such
requirements "to the extent practicable".
Each deposit of Additional Securities shall be listed in a
Supplemental 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 Supplemental Schedule receipt of the deposit, and
simultaneously with the receipt of said deposit, reflect the aggregate number of
Additional Units specified in such Supplemental Schedule by recording such 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 Supplemental 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 Supplemental Schedule and authorization to
the Trustee on behalf of the Trust to enter into or assume such contracts and
otherwise to carry out the terms and provisions thereof or to take other
appropriate action in order to complete the deposit of the Additional Securities
covered thereby into the Trust.
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Section 2.07. 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.
Section 2.08. PRINTING AND CUSTODIANSHIP OF CERTIFICATES: The
Depositor hereby agrees to arrange for the printing of blank Certificates. Such
blank Certificates are to be held by the Trustee. The Trustee is authorized to
use the services of Depositary Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, or any other similar organization or company which the Depositor may
specify for the custody of Securities and Units.
Section 2.09. VOTING RIGHTS: Voting rights with respect to the
Securities held by the Trust shall be exercised by the Trustee as directed by
the Depositor in accordance with Section 3.11.
ARTICLE III
ADMINISTRATION OF TRUST
Section 3.01. INITIAL COST: With respect to the Trust, the
cost of the initial preparation, printing and execution of the Certificates and
this Indenture, shall be paid by the Depositor, provided, however, that the
liability on the part of the Depositor for such initial costs, fees and expenses
shall not include any fees, costs or other expenses incurred in connection
herewith after the execution of this Indenture, and the deposit relating to the
Trust, referred to in Section 2.01.
Section 3.02. INCOME ACCOUNT: The Trustee shall collect the
dividends or other like cash distributions on the Securities in the Trust as
such are paid and credit such amounts, as collected, to a separate account to be
known as the "Income Account."
Section 3.03. PRINCIPAL ACCOUNT: The Securities in the Trust
and all cash, other than amounts credited to the Income Account, received by the
Trustee in respect of the Securities in the Trust and any cash and/or
irrevocable letters of credit required to purchase Securities represented by
"when-issued" and/or "regular way" contracts unless and until such contracts
shall not be consummated in accordance with their
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terms, 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 or Income
Account such amounts as it, in its sole discretion, shall deem requisite to
establish a reserve for any applicable taxes or other governmental charges that
may be payable out of the Trust. Such amounts so withdrawn shall be credited to
a separate account which shall be known as the "Reserve Account." The Trustee
shall not be required to distribute to the Unit Holders any of the amounts in
the Reserve Account; provided, however, that if the Trustee shall, in its sole
discretion, determine that such amounts are no longer necessary for payment of
any applicable taxes or other governmental charges, then it shall promptly
deposit such amounts in the account from which previously withdrawn, or, if such
Trust has been terminated or is in the process of termination, the Trustee shall
distribute to each Unit Holder such holder's interest in the Reserve Account in
accordance with Section 9.03 hereof.
Section 3.05. DISTRIBUTION: As of each Record Date for the
Trust, the Trustee shall:
(a) deduct from the Income Account, or, to the extent funds
are not available in such Account, from the Principal Account, and
pay to itself individually the amounts that it is at the time
entitled to receive pursuant to Section 6.04 or this Section 3.05;
(b) deduct from the Income Account, or, to the extent funds
are not available in such Account, from the Principal Account, an
amount equal to the unpaid fees and expenses, if any, including
registration charges, Blue Sky fees, printing costs, attorneys'
fees, auditing costs and other miscellaneous out-of-pocket expenses,
as certified by the Depositor, incurred in keeping the registration
of the Units and the Trust on a current basis, provided, however,
that no portion of such amount shall be deducted or paid unless the
payment thereof from the Trust is at that time lawful; and
(c) deduct from the Income Account or, to the extent funds are
not available in such account, from the Principal Account the
estimated amount that the Depositor is entitled to receive pursuant
to Section 8.07 and hold such amount without interest until such
time as it is payable to the Depositor as set forth below. The
Trustee shall
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distribute to the Depositor from the amount so held pursuant to the
immediately preceding sentence the amounts that the Depositor is
entitled to receive pursuant to Section 8.07 on account of its
services theretofore performed and expenses theretofore incurred.
With respect to Trusts having monthly, quarterly or semiannual
Distribution Dates, the Trustee shall deduct from the Income Account
one-twelfth, one-quarter or one-half, as the case may be, of the
estimated annual amount that the Depositor is entitled to receive
and shall distribute such amounts to the Depositor on the monthly,
quarterly or semiannual Distribution Date, as the case may be. In
the event of the appointment of a successor depositor pursuant to
Section 6.01(f)(1), the Trustee shall deduct from the Income
Account, or, to the extent funds are not available in such account,
from the Principal Account, and pay to such successor depositor the
amounts, if any, that it is at the time lawful for it to receive
under said Section 6.01(f)(1).
The Principal Account shall be reimbursed for any amounts
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 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; 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 or 6.04 in excess of
the amounts needed for the purposes of said Sections shall not be distributed
until the next Distribution Date or at such earlier date as shall be determined
by the Depositor. The Trustee shall not be required to make a distribution from
the Principal Account unless the cash balance on deposit therein available for
dis-
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tribution shall be sufficient to distribute at least $1.00 per Unit in the case
of Units initially offered at approximately $1,000 or a proportionately lower
amount in the case of Units initially offered at less than $1,000 (E.G., $.001
per Unit in the case of Units initially offered at approximately $1.00).
The amounts to be so distributed to each Unit Holder of the
Trust of record as of each Record Date shall be that pro rata share of the cash
balance as of such Record Date of the Income and Principal Accounts of the
Trust, as shall be represented by a notation on the registration or other record
books of the Trustee.
In the computation of each such share, fractions of less than
one cent shall be omitted. After any such distribution provided for above, any
cash balance remaining in the Income Account or the Principal Account shall be
held in the same manner as other amounts subsequently deposited in each of such
Accounts, respectively.
For the purpose of distribution as herein provided, the
holders of record on the registration books of the Trustee at the close of
business on each Record Date shall be conclusively entitled to such
distribution, and no liability shall attach to the Trustee by reason of payment
to any such registered Unit Holder of record. Nothing herein shall be construed
to prevent the payment of amounts from the Income Account and the Principal
Account to individual Unit Holders by means of one check, draft or other proper
instrument, provided that the appropriate statement of such distribution shall
be furnished therein as provided in Section 3.06 hereof.
Section 3.06. DISTRIBUTION STATEMENTS: With each distribution
from the Income or Principal Accounts of the Trust, the Trustee shall furnish
Unit Holders a statement of the amount being distributed from each such account,
expressed in each case as a dollar amount per Unit.
Within a reasonable period of time after the last Business Day
of each calendar year, but not later than February 15, the Trustee shall furnish
to each person who at any time during such calendar year was a Unit Holder a
statement setting forth, with respect to such calendar year:
(A) as to the Income Account of the Trust:
(1) the amount of dividends received on the Securities,
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(2) the amounts paid from the Income Account for
redemptions of Units 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, and any expenses
paid by the Trust pursuant to Section 3.05 hereof,
(4) the amount distributed from the Income Account,
identifying separately amounts distributed as dividends and as
other income,
(5) any other amount credited to or deducted from the
Income Account, and
(6) the balance remaining after such distributions and
deductions, expressed both as a total dollar amount and as a
dollar amount per Unit outstanding on the last Business Day of
such calendar year;
(B) as to the Principal Account of the Trust:
(1) the dates of the sale, liquidation or redemption of
any of the Securities, the identity of such Securities and the
net proceeds received therefrom, excluding any portion thereof
credited to the Income Account,
(2) the amount paid from the Principal Account for
redemption of Units pursuant to Section 5.02,
(3) the deductions for payment of applicable taxes and
other governmental charges, if any, compensation of the
Depositor, fees and expenses of the Trustee, transfers to the
Reserve Account, and any expenses paid by the Trust under
Section 3.05 hereof,
(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 dol-
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lar amount and as a dollar amount per Unit outstanding on the
last Business Day of such calendar year; and
(C) the following information:
(1) a list of the Securities held in the Trust as of the
last Business Day of such calendar year,
(2) the number of Units outstanding on the last Business
Day of such calendar year,
(3) the Unit Value (as defined in Section 5.01) based on
the last evaluation of such Trust made during such calendar
year, and
(4) the amounts actually distributed during such
calendar year from the Income and Principal Accounts of the
Trust, separately stated, expressed both as total dollar
amounts and as dollar amounts per Unit outstanding on the
Record Dates 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.
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Whenever a Replacement Security is acquired by the Depositor
pursuant to the provisions of this Section 3.07, the Trustee shall, within five
days thereafter, mail to all Unit Holders notices of such acquisition, including
an identification of the Special Security and the Replacement Security acquired.
The purchase price of a Replacement Security shall be paid out of the funds in
the principal account attributable to the Special Security which it replaces.
The Trustee shall not be liable or responsible in any way for depreciation or
loss incurred by reason of any purchase made pursuant to any such instructions
from the Depositor and in the absence of such instructions the Trustee shall
have no duty to purchase any Replacement Securities under this Indenture. The
Depositor shall not be liable for any failure to instruct the Trustee to
purchase any Replacement Security or for errors of judgment in selecting any
Replacement Security.
Section 3.08. SALE OF SECURITIES: In order to maintain the
sound investment character of the Trust the Depositor may direct the Trustee to
sell or liquidate Securities at such price and time and in such manner as shall
be determined by the Depositor, provided that the Depositor has determined that
any one or more of the following conditions exist:
(a) that there has been a failure by the issuer of such
Securities to declare or pay an anticipated dividend thereon;
(b) that any action or proceeding has been instituted in law
or equity seeking to restrain or enjoin the payment of dividends on
any such Securities, or that there exists any other legal question
or impediment affecting such Securities or the payment of dividends
on the same;
(c) that there has occurred any breach of covenant or warranty
in any resolution, ordinance, trust, indenture or other agreement or
document, which would adversely affect either immediately or
contingently the payment of dividends on such Securities;
(d) that the price of any such Securities has declined to such
an extent, or such other market or credit factor exists, that in the
opinion of the Depositor the retention of such Securities would be
detrimental to the Trust and to the interest of the Unit Holders;
(e) that there has been a default in the payment of principal
or par or stated value of, premium, if any, or
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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.
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.
The Trustee shall sell any options, warrants or other rights
to purchase securities distributed to the Trust in respect of Securities, as
soon as is practicable after receipt of such options, warrants or other rights,
unless otherwise directed by the Depositor.
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 Securities, the Trustee shall sell such Securities 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 Securities sold and the proceeds received therefrom.
Section 3.10. REFUNDING OF SECURITIES: 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
-25-
in exchange shall be deposited hereunder and shall be promptly sold, if
securities or property, by the Trustee. The cash then remaining shall be
distributed to Unit Holders on the next Distribution Date in the manner set
forth in Section 3.05 regarding distributions from the Principal Account.
Section 3.11. NOTICE OF ACTIONS: 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:. 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 or otherwise deposited pursuant to 2.06 hereof, shall
either be sold and the proceeds of sale credited to the Principal Account of the
Trust, or distributed 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), Securities described on Schedule A, or a Replacement Security
or a Security otherwise deposited pursuant to Section 2.06 hereof.
The Securities and cash represented by a Unit shall be uniform
so that each Unit shall at all times represent property identical to that
represented by every other Unit. Securities identical to those represented by a
Unit and received as the result of a stock dividend or stock split may be
retained in the Trust and the number of shares of such a Security represented by
a Unit adjusted accordingly. All other non-cash distributions in respect of any
Securities held in the Trust shall be sold or distributed to Unit Holders.
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ARTICLE IV
EVALUATION OF SECURITIES
Section 4.01. EVALUATION OF SECURITIES: The Trustee shall
determine separately and promptly furnish to the Depositor upon request the
value of each issue of the Securities in the Trust (determined as set forth
below) as of the Evaluation Time on each of the days on which the Trustee shall
make the Trust Evaluation required by Section 5.01. In making the evaluations
the Trustee may determine the value of each issue of the Securities in the Trust
by the following methods, or any combination thereof, which it deems
appropriate. 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 and which shall be deemed to be the New
York Stock Exchange if the Securities are listed thereon (unless the Trustee
deems such price inappropriate as a basis for valuation). If the Securities are
not so listed, or, if so listed and the principal market therefor is other than
such exchange or there is no closing price on such exchange, such valuation
shall be based on the closing price in the over-the-counter market (unless the
Trustee deems such price inappropriate as a basis for valuation) or if there is
no such closing price, by any of the following methods which the Trustee deems
appropriate: (i) on the basis of current bid prices of such Securities as
obtained from investment dealers or brokers (including the Depositor) who
customarily deal in securities comparable to those held by the Trust, or (ii) if
bid prices are not available for any of such Securities, on the basis of bid
prices for comparable securities, or (iii) by appraisal of the value of the
Securities on the bid side of the market or by such other appraisal as is deemed
appropriate, or (iv) by any combination of the above. The Trustee shall also
make an evaluation of the Securities deposited in the Trust as of the time said
Securities are deposited under this Indenture. Such evaluation shall be made on
the same basis as set forth above. The Trustee's determination of the bid prices
of the Securities on the date of deposit shall be included in the Schedules
attached to the Reference Trust Agreement.
If the Securities to be evaluated are Restricted Securities,
among the factors the Trustee will consider in determining the value of such
Securities are (a) an estimate of the existence and extent of any market
therefor, (b) the estimated period of time during which such Securities will not
be freely marketable, (c) the estimated expenses, if any, to the Trust of
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registering or otherwise qualifying such Securities for public sale, (d)
estimated underwriting commissions if underwriting would be required to effect a
sale, (e) the current dividends on comparable securities, and (f) changes in the
financial conditions and prospects of, and other factors affecting, the issuer.
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 gross negligence in
the performance of its duties or by reason of its reckless disregard of its
obligations and duties hereunder. The Trustee shall not be liable or responsible
for depreciation or losses incurred by reason of the purchase, sale or retention
of any Securities.
ARTICLE V
TRUST EVALUATION, REDEMPTION,
TRANSFER, INTERCHANGE OR REPLACEMENT
OF CERTIFICATES
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 de-
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posit in the Reserve Account, funds deposited on the date hereof by the
Depositor for the purchase of Securities and not theretofore credited to the
Principal Account pursuant to Section 3.03 and funds in the Principal Account
with respect to which contracts for the purchase of the Replacement Securities
have been entered into pursuant to Section 3.07 hereof), including dividends
receivable on stocks trading ex dividend, (a)(2) the value of each issue of the
Securities in the Trust as determined by the Trustee pursuant to Section 4.01,
and (a)(3) all other assets of the Trust. For each such evaluation there shall
be deducted from the sum of the above (b)(1) amounts representing any applicable
taxes or other governmental charges payable out of the Trust and for which no
deductions shall have previously been made for the purpose of addition to the
Reserve Account, (b)(2) amounts representing accrued fees of the Trustee and
expenses of the Trust including but not limited to unpaid fees of the Trustee
and expenses of the Trust (including legal and auditing expenses), accrued fees
and expenses of the Depositor and its respective successors, if any, and (b)(3)
cash held for distribution to Unit Holders of record as of a date on or prior to
the evaluation then being made. The value of the pro rata share of each Unit of
the Trust determined on the basis of any such evaluation shall be referred to
herein as the "Unit Value."
The 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:
Any Unit or Units tendered for redemption by a Unit Holder or his duly
authorized attorney to the Trustee at its unit investment trust office in the
City of New York shall be redeemed by the Trustee on the seventh calendar day
following the day on which tender for redemption is made, provided that if such
day of redemption is not a Business Day, then such Unit shall be redeemed on the
first Business Day prior thereto (being herein called the "Redemption Date").
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
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or trust company, or by a member firm of either the New York, Midwest, or
Pacific Coast Stock Exchanges, or in such other manner as may be acceptable to
the Trustee. The Trustee may also require additional documents such as, but not
limited to, trust instruments, certificates of death, appointments as executor
or administrator or certificates of corporate authority. Subject to payment by
such Unit Holder of any tax or other governmental charges which may be imposed
thereon, such redemption is to be made by payment on the Redemption Date of 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 (the "Tender
Date") (such Unit Value, the "Redemption Price"). Units received for redemption
by the Trustee on any date after the Evaluation Time will be held by the Trustee
until the next Business 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 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. Unless otherwise directed by the Depositor, the
Trustee shall select Securities from the current list to be sold so as to
maintain, as closely as practicable, the original proportionate relationship
between the number of shares of each Security in the Trust. 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. In the
case of a Trust which is holding Restricted Securities, the Trustee shall sell
such Securities as shall not result in Restricted Securities constituting more
than 50% in value of the Securities remaining in the Trust upon the completion
of such sale or result in the Trust holding less than $250,000 in value of any
Restricted Security; PROVIDED, HOWEVER, that the Depositor shall use its best
efforts to insure that such sale shall not result in Restricted Securities
constituting more than 40% in value of the Securities remaining in the Trust
upon completion of such sale, it being understood that sales of unrestricted
Securities may be made if the Depositor's best efforts with regard to the timely
sale of Restricted Securities at prices it deems reasonable are unsuccessful if
as a result of such sales more than
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50% in value of the Trust does not consist of Restricted Securities.
Notwithstanding the foregoing, any Unit Holder tendering for
redemption at least the number of Units specified in the Reference Trust
Agreement for "in-kind" distribution either during the life of the Trust or in
connection with the termination of the Trust, may elect, by notifying the
Trustee of such election, if permitted, or may be required by the Depositor, to
receive Securities in kind. A Unit Holder choosing in-kind distribution will
receive such distribution no later than the Redemption 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 Tender Date plus the Unit Holder's pro rata share of the balances in the
Income and Principal Accounts. In addition, the Trustee shall distribute no
later than the Redemption Date (or if such date 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 Tender Date.
The Depositor shall provide the Trustee 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 Trustee, 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 Principal Account. 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 Price which represents the Unit Holder's interest in the Income
Account shall be withdrawn from the Income Account to the extent available. The
balance paid on any redemption, including dividends receivable on stocks trading
ex dividend, if any, shall be withdrawn from the Principal Account to the extent
that funds are available for such purpose. If such available balance shall be
insufficient, the Trustee shall advance funds sufficient to pay such amount to
the Unit Holder and shall be entitled to reimbursement of such advance upon the
deposit of additional monies in the Income Account or Principal Account,
whichever happens first. Should any amounts so advanced with respect to declared
but unreceived dividends become uncollectable because of default in payment of
such dividends,
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the Trustee shall have the right immediately to liquidate Securities in an
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 Price 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. If the
proceeds from such sales from the current list of Securities exceed the amount
necessary for payment of Units redeemed, such excess proceeds will be credited
to the Principal Account.
The Trustee may in its discretion, and shall when so directed
by the Depositor, suspend the right of redemption or postpone the date of
payment of the Redemption Price for more than 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 next Business Day following
such tender. 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 Price which would
otherwise be payable by the Trustee to such Unit Holder.
Any Unit so purchased by the Depositor may at the option of
the Depositor be tendered to the Trustee for redemption at the unit investment
trust office of the Trustee in the manner provided in the first paragraph of
this Section 5.02.
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The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any sale or redemption of Securities
made pursuant to Sections 5.02.
The Trustee will transfer the Securities to be delivered
in-kind to the account of, and for disposition in accordance with the
instructions of, the Unit Holder.
Section 5.03. TRANSFER OR INTERCHANGE OF CERTIFICATES: A
Certificate (and the Units it represents) may be transferred by the registered
holder thereof by presentation and surrender of such Certificate at the unit
investment trust office of the Trustee properly endorsed or accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Trustee and executed by the Unit Holder or his authorized attorney, whereupon a
new registered Certificate or Certificates for the same number of Units of the
Trust executed by the Trustee and the Depositor will be issued in exchange and
substitution therefor. Certificates issued pursuant to this Indenture are
interchangeable for one or more other Certificates in an equal aggregate number
of Units of the Trust and all Certificates issued shall be issued in
denominations of one Unit or any multiple thereof as may be requested by the
Unit Holder.
The Trustee may deem and treat the person in whose name any
Certificate shall be registered upon the books of the Trustee as the owner of
such Certificate for all purposes hereunder, and the Trustee shall not be
affected by any notice to the contrary, nor be liable to any person or in any
way for so deeming and treating the person in whose name any Certificate shall
be so registered.
A sum sufficient to pay any tax or other governmental charge
that may be imposed in connection with any such transfer or interchange shall be
paid by the Unit Holder to the Trustee. The Trustee may require a Unit Holder to
pay $2.00 for each new Certificate issued on any such transfer or interchange.
All Certificates cancelled pursuant to this Indenture shall be
disposed of by the Trustee without liability on its part.
Section 5.04. CERTIFICATES MUTILATED, DESTROYED, STOLEN OR
LOST: In case any Certificate shall become mutilated or be destroyed, stolen or
lost, the Trustee shall execute and deliver a new Certificate in exchange and
substitution therefor upon the holder's furnishing the Trustee with proper
identifi-
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cation and indemnity satisfactory to the Trustee, complying with such other
reasonable regulations and conditions as the Trustee may prescribe and paying
such expenses as the Trustee may incur. Any mutilated Certificate shall be duly
surrendered and cancelled before any new Certificate shall be issued in exchange
and substitution therefor. Upon the issuance of any new Certificate a sum
sufficient to pay any tax or other governmental charge will be imposed and
payment of the fees and expenses of the Trustee may be required. Any such new
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
In the event the Trust has terminated or is in the process of
termination, the Trustee may, instead of issuing a new Certificate in exchange
and substitution for any Certificate which shall have become mutilated or shall
have been destroyed, stolen or lost, make the distributions in respect of such
mutilated, destroyed, stolen or lost Certificate (without surrender thereof
except in the case of a mutilated Certificate) as provided in Section 9.03
hereof if the Trustee is furnished with such security or indemnity as it may
require to save it harmless, and in the case of destruction, loss or theft of a
Certificate, evidence to the satisfaction of the Trustee of the destruction,
loss or theft of such Certificate and of the ownership thereof.
ARTICLE VI
TRUSTEE
Section 6.01. 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 han-
-34-
dle 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 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 parties hereto may construe any of the
provisions of this Indenture, insofar as the same may appear to be
ambiguous or inconsistent with any other provisions hereof which
construction shall be binding upon the Unit Holders and the parties
hereto. The Trustee shall be under no liability for any construction
of any such provisions hereof;
(c) the Trustee shall not be responsible for or in respect of
the recitals herein, the validity or sufficiency of this Indenture
or for the due execution hereof by the Depositor, or for the form,
character, genuineness, sufficiency, value or validity of any
Securities, or for or in respect of the validity or sufficiency of
the Certificates or the due execution thereof by the Depositor, 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 actions 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 under-
-35-
take such action as it may deem necessary at any and all times to
protect the Trust and the rights and interests 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 misconduct had been committed or occasioned by
the Trustee. The Trustee shall be fully protected in respect of any
action under this Agreement taken, or suffered, in good faith by the
Trustee, in accordance with the opinion of its counsel. The 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
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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 the times specified in Section 3.05 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;
(g) (1) if at any time the value of the Trust including
supplemental deposits, if any, of Securities theretofore in the
Trust as shown by any Trust Evaluation shall be less than the
liquidation amount specified in clause (2) of this subsection (g),
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;
(2) the liquidation amount referred to in clause (1) of this
subsection (g) shall be 40% of the value of the Securities in the
Trust determined as of the date on which the most recent deposit of
Securities occurred;
(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 the 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
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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;
(j) the Trustee except by reason of its own gross negligence,
bad faith or willful misconduct shall not be liable for any action
taken, omitted or suffered to be taken by it in good faith and
believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture; and
(k) so long as shall be required by Section 26(a)(2)(C) of the
Investment Company Act of 1940, no payment to the Depositor or to
any principal underwriter (as defined in such Act) for the Trust or
to any affiliated person (as so defined) or agent of the Depositor
or such underwriter shall be allowed the Trustee as an expense
except for payment not in excess of reasonable amounts as
compensation for performing bookkeeping and other administrative
services of a character normally performed by the Trustee itself.
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 2.07 at its unit investment
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 of
the Trustee.
The Trustee shall make such annual or other reports as may
from time to time be required under any applicable state or federal statute or
rule or regulation thereunder.
Section 6.03. 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 unit investment 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 the Reference Trust Agreement. Such compensation shall accrue daily and
be payable on each Record Date in an amount equal to one-twelfth, one-fourth
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or one-half (based on the number of ordinary Trust distributions) 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, but not
limited to 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). The Trustee shall be indemnified and held harmless against
any loss or liability accruing to it without gross negligence, bad faith or
willful misconduct on its part, arising out of or in connection with the
acceptance or administration of this Trust, including the costs and expenses
(including counsel fees) of defending itself against any claim of liability in
the premises. 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
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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 a
lien on the Trust prior to the interests of the Unit Holders.
Section 6.05. REMOVAL AND RESIGNATION OF TRUSTEE; SUCCESSOR:
The following provisions shall provide for the removal and resignation of the
Trustee and the appointment of any successor trustee:
(a) the Trustee or any trustee or trustees hereafter appointed
may resign and be discharged of the trusts created by this
Indenture, by executing an instrument in writing resigning as
Trustee of the Trust and filing the same with the Depositor and
mailing a copy of a notice of resignation to all Unit Holders then
of record, not less than sixty days before the date specified in
such instrument when, subject to Section 6.05(e), such resignation
is to take effect. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor trustee as hereinafter
provided, by written instrument, in duplicate, one copy of which
shall be delivered to the resigning Trustee and one copy to the
successor trustee. If at any time the Trustee shall become incapable
of acting, or shall 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 or 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;
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(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, 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
-41-
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. QUALIFICATIONS 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.
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 prior to the Trustee's close
of business on the date on which the Trust is terminated 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
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affect the rights, obligations and liabilities of the parties hereto
or any of them. Each Unit Holder expressly waives any right he may
have under any rule of law, or the provisions of any statute, or
otherwise, to require the Trustee at any time to account, in any
manner other than as expressly provided in this Indenture, in
respect of the Securities or monies from time to time received, held
and applied by the Trustee hereunder; and
(c) no Unit Holder shall have any right to vote or in any
manner otherwise control the operation and management of the Trust,
or the obligations of the parties hereto, nor shall anything herein
set forth be construed so as to constitute the Unit Holders from
time to time as partners or members of any association; nor shall
any Unit Holder ever be under any liability to any third persons by
reason of any action taken by the parties to this Indenture, or any
other cause whatsoever.
ARTICLE VIII
DEPOSITOR
Section 8.01. LIABILITIES; POWER OF ATTORNEY: The Depositor,
or the Depositors if there be more than one, shall be severally liable in
accordance herewith for the obligations imposed upon and undertaken by the
Depositor hereunder, PROVIDED, HOWEVER, that, without in any way affecting or
diminishing such several liability, each Depositor of the Trust shall indemnify
the other Depositors thereof and hold such other Depositors harmless from and
against any and all costs, expenses and liabilities (including attorneys' fees)
which such other Depositors may suffer or incur as a result of or by reason of
any act or failure to act hereunder on the part of the indemnifying Depositor.
At all times prior to the termination of the Trust and while the Depositors
thereof shall continue to act jointly hereunder, there shall be maintained on
file with the Trustee a power of attorney executed in favor of one Depositor by
the other Depositors constituting and appointing the non-executing Depositor the
true and lawful agent and attorney-in-fact of the executing Depositors to
execute and deliver for and on behalf of the executing Depositors any and all
notices, opinions, certificates, lists, demands, directions, instruments, or
other documents provided or permitted to be executed or delivered by the
Depositors hereunder in connection with the Trust or to take any other action in
respect hereof. Such
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power of attorney shall continue in effect as to the executing Depositors until
written notice of revocation thereof has been given by such executing Depositors
to the Trustee. Prior to receipt of such notice of revocation the Trustee shall
be entitled to rely conclusively upon such power of attorney as authorizing the
non-executing Depositor to give any notice, opinion, certificate, list, demand,
direction, instrument or other document provided for or permitted hereunder or
to take any other action in respect hereof on behalf of the executing Depositors
as to which such power of attorney is in effect.
Section 8.02. DISCHARGE: If there be more than one Depositor,
the following provisions shall provide for the discharge of a Depositor and the
liability of the Depositors in the event of the discharge of a Depositor:
(a) in the event that any Depositor shall fail to undertake or
perform any of the duties which by the terms of this Agreement are
required by it to be undertaken or performed and such failure shall
continue for 30 days after notice to the Depositors from the Trustee
or if any Depositor shall become incapable of acting or shall have
an order of relief entered with respect to it, or a receiver of the
property of any Depositor shall be appointed or any public officer
shall take charge or control of any Depositor or its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then such Depositor shall forthwith be and shall be
deemed to be discharged forever as a Depositor hereunder and
thereupon the remaining Depositors shall act hereunder without the
necessity of any other or further action on its part or on the part
of the Trustee;
(b) in the event that the power of attorney referred to in
Section 8.01 shall be revoked by written notice given by an
executing Depositor and it shall not be 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
hereunder without the necessity of any other or further action on
their part or on the part of the Trustee; and
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(c) notwithstanding the discharge of a Depositor of the Trust
in accordance with this Section 8.02, such Depositor shall continue
to be fully liable in accordance with the provisions hereof in
respect of action taken or refrained from under this Agreement by
the Depositors before the date of such discharge or by the
undischarged Depositors before or after the date of such discharge,
as fully and to the same extent as if no discharge has occurred.
Section 8.03. SUCCESSORS: The covenants, provisions and
agreements herein contained shall in every case be binding upon any successor or
successors to any Depositor and shall be binding upon the General Partners of
any Depositor which may be a partnership and upon the capital interest of the
limited partners of any Depositor which may be a partnership. In the event of
the death, resignation or withdrawal of any partner of any Depositor which may
be a partnership, the partner so dying, resigning or withdrawing shall be
relieved of all further liability hereunder if at the time of such death,
resignation or withdrawal such Depositor maintains a net worth (determined in
accordance with generally accepted accounting principles) of at least
$1,000,000. In the event of an assignment by any Depositor to a successor
corporation or partnership as permitted by the next following sentence, such
Depositor and, if such Depositor is a partnership, its partners shall be
relieved of all further liability under this Agreement. 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
Agreement.
Section 8.04. RESIGNATION: If at any time a Depositor of the
Trust shall desire to resign its position as such a Depositor hereunder, the
Depositor desiring to resign may resign by delivering to the Trustee an
instrument executed by such resigning Depositor and upon such delivery, the
resigning Depositor shall be discharged and shall no longer be liable in any
manner hereunder except as to acts or omissions occurring prior to such
delivery; PROVIDED, HOWEVER, that if upon such resignation there would be no
Depositor then acting, concurrently with or subsequent to such resignation the
Trustee shall proceed as provided in Section 6.01(f).
Section 8.05. ADDITIONAL DEPOSITORS: The Depositor of the
Trust and the Trustee may at any time appoint one or more corporations or
partnerships to act as new Depositor of
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such Trust, 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 of the Trust shall be under any liability to
any other Depositor of the Trust, such 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 of the Trust 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 of the Trust, the Trustee, counsel to an issuer of a
Security, or any other person. The Depositor shall in no event be
deemed to have assumed or incurred any liability, duty, or
obligation to any Unit Holder or the Trustee other than as expressly
provided for herein;
(b) the Depositor shall not be under any obligation to appear
in, prosecute or defend any legal action which in its opinion may
involve it in any expense or liability; PROVIDED, HOWEVER, that the
Depositor may in its discre-
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tion undertake any such action which it may deem necessary or
desirable in respect of this Agreement and the rights and duties of
the parties hereto and the interests of the Unit Holders hereunder;
and
(c) none of the provisions of this Agreement shall be deemed
to protect or purport to protect the Depositor of the Trust 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 Agreement.
Section 8.07. COMPENSATION: The Depositor shall receive at the
times set forth in Section 3.05 as compensation for performing portfolio
supervisory services, such amounts, and for such periods, as are specified in
the Reference Trust Agreement. The computation of such compensation shall be
made on the basis of the greatest number of Units in the Trust at any time
during which such compensation is being computed. At no time, however, will the
total amount received by the Depositor for services rendered to all series of
the Xxxx Xxxxxx Select 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: This Indenture may be amended from
time to time by the parties hereto or their respective successors, without the
consent of any of the Unit Holders (a) to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or incon-
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sistent with any other provision 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 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 per cent of the Units of the Trust
then outstanding; provided, that in no event shall this Trust continue beyond
the Termination Date as set forth in Part II of the Reference Trust Agreement.
Written notice of
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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) In connection with any termination of the Trust
prior to the In-Kind Date, Unit Holders may elect by written notice to the
Trustee within the time period specified in the notice of termination to receive
their interest in the Trust in-kind in accordance with the procedures set forth
in Section 5.02 hereof (PROVIDED HOWEVER, that brokerage commissions on sales of
fractional shares shall be deducted from the cash proceeds to be paid to Unit
Holders electing distribution in-kind). Unit Holders who do not effectively
elect in-kind distribution shall receive cash. Subsequent to the completion of
the procedures for in-kind distribution described in Section 5.02, 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.
(ii) If the Trust is not terminated prior to the In-Kind Date,
the Trustee shall proceed as follows: At least twenty days prior to the In-Kind
Date, each Unit Holder of record as of such date owning the number of Units set
forth in the Reference Trust Agreement necessary to qualify to elect in-kind
redemptions set forth in Section 5.02 hereof shall be supplied a form of
election (the "Election Notice"). The Election Notice will permit such Unit
Holder to elect to receive his interest in the Trust (i) in kind or (ii) in
cash. The Trustee will duly honor instructions given in such properly completed
Election Notices received by the In-Kind Date. A Unit Holder who does not
effectively elect distribution in kind will receive a cash distribution.
On the In-Kind Date, the Trustee shall (a) determine the Unit
Value pursuant to Section 5.01 and (b) segregate the number of whole shares of
Securities necessary to satisfy distributions to Unit Holders electing
distribution in kind. Subject to payment of any tax or governmental charges
which may be imposed thereon, the Unit Holder choosing in-kind distribution
shall receive, against surrender of his Certificate(s), within seven (7)
calendar days following the In-Kind Date, such Unit Holder's pro rata portion of
each of the Securities in whole shares and the Unit Holder's pro rata share of
the distributable cash balance of the Income and Principal Accounts as of the
In-Kind Date reduced by accrued expenses and obligations of the Trust on the
In-Kind Date plus the proceeds of any fractional shares included in the Unit
Holder's pro rata share of the Securities. Commencing with the Business Day next
following the In-Kind Date, the Trustee shall fully liquidate the remaining
Securities in the portfolio over a period not to exceed 10 Business Days. The
Trustee will sell on each Business Day during such 10-day period, unless
directed otherwise by the Depositor, at least a number of shares of each
Security which then remains in the portfolio equal to the number of such shares
in the portfolio at the beginning of such day multiplied by a fraction the
numerator of which is one and the denominator of which is the number of days
remaining in the 10 Business Day sales period. The proceeds of such sales, net
of any tax or governmental charges and any brokerage commissions due thereon,
shall be credited to the Principal Account. Upon the settlement of the last
trade of Securities, the Trustee shall follow the procedures set forth in
(a)(i), (a)(ii) and (a)(iii) of
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this Section 9.03. The Trustee shall distribute to Unit Holders, within seven
days of the settlement of the last trade, against surrender of their
Certificates, their pro rata shares of the balance of the Income and Principal
Accounts and on the conditions set forth in Section 3.04 hereof, their pro rata
share of the cash balance of the Reserve Account.
(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.
(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 Xxxx Xxxxxx Xxxxxxxx
Inc., Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attn: Unit Investment
Trust Division or at such other address as shall be specified by the Depositor
to the other parties hereto in writing. Any notice, demand, direction or
instruction to be given to the Trustee hereunder 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 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
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Holder at the address of such holder appearing on the registration books of the
Trustee.
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 of the Certificates
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.
IN WITNESS WHEREOF, Xxxx Xxxxxx Xxxxxxxx Inc. has caused this
Trust Indenture and Agreement to be executed by one of its Vice Presidents 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.
FORM OF SIGNATURE PAGE
XXXX XXXXXX XXXXXXXX INC.,
Depositor
By:
-----------------------------
Title: Vice President
(SEAL)
ATTEST :
By:
-----------------------------
Assistant Secretary
THE BANK OF NEW YORK, Trustee
By:
-----------------------------
Assistant Vice President
(SEAL)
ATTEST:
By:
------------------------------
Assistant Treasurer
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, , a Notary Public in and for the said
County in the State aforesaid, do hereby certify that and
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 Treasurer, respectively of The Bank of New York, a
corporation, appeared before me this day in person, and acknowledge that they
signed, sealed with the corporate seal of The Bank of New York and delivered
the said instrument as their free and voluntary act as such Assistant Vice
President, and Assistant Treasurer, respectively, as the free and voluntary
act of said The Bank of New York for the uses and purposes therein set forth.
GIVEN, under my hand and notarial seal this day of
.
-----------------------------
Notary Public
(SEAL]
