Exhibit 1.1(b)
Nuveen Unit Trusts, Series 33
Trust Indenture and Agreement
Dated: February 25, 1999
This Trust Indenture and Agreement by and between Xxxx Nuveen & Co.
Incorporated, as Depositor and The Chase Manhattan Bank, as Trustee, sets forth
certain provisions in full and incorporates other provisions by reference to the
document entitled "Standard Terms and Conditions of Trust for Nuveen Unit Trust,
Series 4 and certain subsequent Series, effective May 29, 1997" (herein called
the "Standard Terms and Conditions of Trust"), and such provisions as are set
forth in full and such provisions as are incorporated by reference constitute a
single instrument. All references herein to Articles and Sections are to
Articles and Sections of the Standard Terms and Conditions of Trust.
Witnesseth That:
In consideration of the promises and of the mutual agreements herein
contained, the Depositor and the Trustee, agree as follows:
Part I
Standard Terms and Conditions of Trust
Subject to the Provisions of Part II hereof, all the provisions contained
in the Standard Terms and Conditions of Trust are herein incorporated by
reference in their entirety and shall be deemed to be a part of this instrument
as fully and to the same extent as though said provisions had been set forth in
full in this instrument.
Part II
Special Terms and Conditions of Trust
The following special terms and conditions are hereby agreed to:
(a) The Securities defined in Section 1.01(1) listed in Schedule A hereto
have been deposited in trust under this Trust Indenture and Agreement.
(b) The fractional undivided interest in and ownership of the Trust Fund
represented by each Unit for the Trust on the Initial Date of Deposit is 1/(the
number of Units) set forth under the caption "Statement of Condition--Interest
of Unitholders: Units of fractional undivided interest outstanding" in the
Prospectus.
(c) The number of Units created of the Trust are as set forth under the
caption "Statement of Condition--Interest of Unitholders: Units of fractional
undivided interest outstanding" in the Prospectus for the Trusts.
(d) The Trust elects to be treated and to qualify as a Regulated Investment
Company as defined in the Internal Revenue Code, and the Trustee is
hereby directed to make such elections, including any appropriate
election to be taxed as a corporation, as shall be necessary to effect
such qualification.
(e) Section 10.02 shall be amended to read in its entirety as follows:
Section 10.02. Initial Costs. Subject to reimbursement as
hereinafter provided, the cost of organizing the Trust and the sale of the
Trust Units shall be borne by the Depositor, provided, however, that the
liability on the part of the Depositor under this section shall not include
any fees or other expenses incurred in connection with the administration
of the Trust subsequent to the deposit referred to in Section 2.01. At the
earlier of six months after the Initial Date of Deposit or the conclusion
of the primary offering period (as certified by the Depositor to the
Trustee), the Trustee shall withdraw from the Account or Accounts specified
in the Prospectus or, if no Account is therein specified, from the Capital
Account, and pay to the Depositor the Depositor's reimbursable expenses of
organizing the Trust in an amount certified to the Trustee by the
Depositor. In no event shall the amount paid by the Trustee to the
Depositor for the Depositor's reimbursable expenses of organizing the Trust
exceed the estimated per Unit amount of organization costs set forth in the
prospectus for the Trust multiplied by the number of Units of the Trust
outstanding at the earlier of six months after the Initial Date of Deposit
or the end of the initial offering period; nor shall the Depositor be
entitled to or request reimbursement for expenses of organizing the Trust
incurred after the earlier of six months after the Initial Date of Deposit
or the end of the initial offering period. If the cash balance of the
Capital Account is insufficient to make such withdrawal, the Trustee shall,
as directed by the Depositor, sell Securities identified by the Depositor,
or distribute to the Depositor Securities having a value, as determined
under Section 4.01 as of the date of distribution, sufficient for such
reimbursement. Securities sold or distributed to the Depositor to reimburse
the Depositor pursuant to this Section shall be sold or distributed by the
Trustee, to the extent practicable, in the percentage ratio then existing.
The reimbursement provided for in this section shall be for the account of
the Unitholders of record at the earlier of six months after the Initial
Date of Deposit or the conclusion of the primary offering period. Any
assets deposited with the Trustee in respect of the expenses reimbursable
under this Section 10.02 shall be held and administered as assets of the
Trust for all purposes hereunder. The Depositor shall deliver to the
Trustee any cash identified in the Statement of Condition of the Trust
included in the Prospectus not later than the 10 calendar days following
the Initial Date of Deposit or deposit of additional Securities, as
applicable and the Depositor's obligation to make such delivery shall be
secured by the letter of credit deposited pursuant to Section 2.01. Any
cash which the Depositor has identified as to be used for reimbursement of
expenses pursuant to this Section 10.02 shall be held by the Trustee,
without interest, and reserved for such purpose and, accordingly, prior to
the earlier of six months after the Initial Date of Deposit or the
conclusion of the primary offering period, shall not be subject to
distribution or, unless the Depositor otherwise directs, used for payment
of redemptions in excess of the per Unit amount payable pursuant to the
next sentence. If a Unitholder redeems Units prior to the earlier of six
months after the Initial Date of Deposit or the conclusion of the primary
offering period, the Trustee shall pay to the Unitholder, in
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addition to the Redemption Value of the tendered Units, unless otherwise
directed by the Depositor, an amount equal to the estimated per Unit cost
of organizing the Trust set forth in the Prospectus, or such lower revision
thereof most recently communicated to the Trustee by the Depositor pursuant
to Section 5.01, multiplied by the number of Units tendered for redemption;
to the extent the cash on hand in the Trust is insufficient for such
payment, the Trustee shall have the power to sell Securities in accordance
with Section 5.02. As used herein, the Depositor's reimbursable expenses of
organizing the Trust shall include the cost of the initial preparation and
typesetting of the registration statement, prospectuses (including
preliminary prospectuses), the indenture, and other documents relating to
the Trust, SEC and state blue sky registration fees, the cost of the
initial valuation of the portfolio and audit of the Trust, the initial fees
and expenses of the Trustee, and legal and other out-of-pocket expenses
related thereto, but not including the expenses incurred in the printing of
preliminary prospectuses and prospectuses, expenses incurred in the
preparation and printing of brochures and other advertising materials and
any other selling expenses.
(f) Article I of the Standard Terms and Conditions of Trust is hereby
amended to replace the definitions of "Capital Distribution Date," "Contract
Securities," "Initial Date of Deposit," "Mandatory Termination Date," "Record
Date," "Securities" and "Unit" and to add the following definitions:
Capital Distribution Date
The meaning assigned to it in the Prospectus for a Trust.
Contract Securities
The Securities which are to be acquired by any Trust Fund pursuant to
a contract or contracts for the purchase of such securities which have been
assigned to the Trustee along with the amounts required for their purchase
which have been delivered to the Trustee.
Evaluator
The party designated in the Prospectus for a Trust or any party
appointed by the Sponsor.
Initial Date of Deposit
The meaning assigned to it in the Prospectus for each respective Trust
Fund.
Mandatory Termination Date
The meaning assigned to it in the Prospectus for a Trust.
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Percentage Ratio
The actual number of shares of each Security as a percent of all
shares of Securities necessary to cause the Trust portfolio to replicate,
to the extent practicable, the Nasdaq 100 Index immediately prior to any
subsequent deposit of Securities as determined, in part, by computer
program output obtained by but operated independently of the Depositor
which tracks such index. The Depositor shall be solely responsible for the
calculation of the Percentage Ratio and the maintenance of the composition
of the Trust portfolio.
Prospectus
The prospectus relating to a Trust in the form first used to confirm
sales of Units.
Record Date
As applicable, the meaning assigned in "Income Record Date" and/or
"Capital Record Date" in the Prospectus for each respective Trust Fund.
Securities
The securities, including Contract Securities listed in Schedule A to
the Trust Agreement or other securities deposited in the Trust Fund and any
obligations received in exchange or substitution for such securities, as
may from time to time continue to be held as a part of any Trust Fund.
Unit
The fractional undivided interest in and ownership of an individual
Trust Fund equal initially to 1/(the number of Units of fractional
undivided interest outstanding) provided in the Statement of Condition in
the Prospectus for the Trust Fund, the denominator of which fraction shall
be (1) increased by the number of any additional Units issued pursuant to
Section 2.03 hereof and (2) decreased by the number of any such Units
redeemed as provided in Section 5.02. Whenever reference is made herein to
the "interest" of a Unitholder in the Trust Fund or in the Income or
Capital Accounts, it shall mean such fractional undivided interest
represented by the number of Units, whether or not evidenced by a
Certificate or Certificates, held of record by such Unitholder in such
Trust Fund.
In addition, the definitions of "Rollover Distribution," "Rollover Notification
Date," "Rollover Unitholder" and "Special Redemption and Liquidation Period"
shall be deleted.
(g) The following subsection (d) shall be added to Section 7.02:
(d) The Depositor may employ agents in connection with its duties
under Section 3.11 and 3.13 hereof and shall not be answerable for the
default or misconduct of such agents if they shall have been selected with
reasonable care. The fees of such agents shall be reimbursable to the
Depositor from the Trust Fund, provided, however, that the
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amount of such reimbursement in any year (i) shall reduce the amount
payable to the Depositor for such year with respect to the service in
question and shall not exceed the maximum amount payable to the Depositor
for such service for such year and (ii) if such agent is an affiliate of
the Depositor, the amount of the reimbursement, when combined with (a) all
compensation received by such agent from other series of the Fund or other
unit investment trusts sponsored by the Depositor or its affiliates and (b)
the amount payable to the Depositor from the Trust Fund and from other
series of the Fund or other unit investment trusts sponsored by the
Depositor or its affiliates in respect of the service in question, shall
not exceed the aggregate cost of such agent and the Depositor of providing
such service. The Trustee shall pay such reimbursement against the
Depositor's invoice therefor upon which the Trustee may rely as the
Depositor's certification that the amount claimed complies with the
provisions of this paragraph.
(h) Section 4.01 shall be amended to read in its entirety as follows:
Section 4.01. Evaluation of Securities. The Evaluator shall determine
separately and promptly furnish to the Trustee and the Depositor upon
request the value of each issue of Securities as of the Evaluation Time as
provided in the following manner:
(a) The Evaluator will prepare each evaluation for which market
quotations for the Securities are available by the use of outside services
normally used and contracted with for this purpose. If the Securities are
listed on a national securities exchange or The NASDAQ Stock Market, Inc.,
the evaluation will be based on the closing sale price on the exchange or
system (if a Security is listed on the New York Stock Exchange, the last
sale price on that exchange shall apply) or, if there is no closing sale
price on the exchange or system, at the closing bid price on the exchange
or system. If such market quotations are not available, the Evaluator shall
determine the value of the Securities. Such evaluation shall generally be
based on the current bid prices on the over-the-counter market (unless it
is determined that these prices are inappropriate as a basis for
evaluation). If such prices are not available on the over-the-counter
market, the evaluation will generally be made by the Evaluator in good
faith (1) on the basis of the current bid prices for comparable securities,
(2) by the Evaluator's appraising the value of the Securities in good faith
at the bid side of the market or (3) by any combination thereof. For each
evaluation, the Evaluator shall also determine and furnish to the Trustee
and the Depositor the aggregate of (a) the value of all Securities on the
basis of such evaluation and (b) on the basis of the information furnished
to the Evaluator by the Trustee pursuant to Section 3.02, the amount of
cash then held in the Capital Account which was received by the Trustee
after the Record Date preceding such determination less any amounts held in
the Capital Account for distribution to Unitholders on a subsequent
Distribution Date when a Record Date occurs four business days or less
after such determination. For the purposes of the foregoing, the Evaluator
may obtain current prices for the Securities from investment dealers or
brokers (including the Depositor) that customarily deal in similar
securities. With respect to any Security not listed on a national exchange
or The NASDAQ Stock Market, Inc., or, with respect to a Security so listed
but the Evaluator deems the closing sale price on the relevant exchange to
be inappropriate as a basis for valuation, upon the Evaluator's request,
the Depositor shall,
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from time to time, designate one or more evaluation services or other
sources of information on which the Evaluator shall be authorized
conclusively to rely in evaluating such Security, and the Evaluator shall
have no liability for any errors in the information so received. The cost
thereof shall be an expense reimbursable to the Evaluator from the Income
and Capital Accounts.
(b) Notwithstanding Section 4.01(a), except in those cases in which
the Securities are listed on a national securities exchange or The NASDAQ
Stock Market, Inc., and the closing sales prices are used and except for
Trust Fund Evaluations required by Section 5.02 in determining Redemption
Price, during the initial offering period, the evaluations of the
Securities shall generally be made in the manner described in Section
4.01(a) based on the closing ask prices of the Securities rather than the
closing bid prices.
(i) Section 5.01 shall be amended to read in its entirety as follows:
Section 5.01. Trust Fund Evaluation. As of the Evaluation Time next
following any tender by a Unitholder for redemption and on any other
business day desired by it or as may be required hereunder, the Trustee
shall as to each Trust Fund:
Add--
(1) cash on hand in the Trust Fund (other than cash held especially
for the purchase of Contract Securities) and moneys in the process of being
collected from declared dividends,
(2) the aggregate value of each issue of the Securities in the Trust
Fund (including Contract Securities) as determined by the Evaluator
pursuant to Section 4.01, and
(3) all other assets of the Trust;
Deduct--
(1) amounts representing any applicable taxes, governmental charges
or other charges pursuant to Section 3.03 payable out of the Trust Fund and
for which no deductions shall have previously been made for the purpose of
addition to the Reserve Account,
(2) amounts representing estimated accrued fees and expenses of the
Trust Fund including but not limited to unpaid fees and expenses of the
Trustee (including legal and auditing expenses), the Evaluator, the
Depositor and counsel, and
(3) amounts representing unpaid accrued organization costs, and
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(4) cash allocated for distribution to Unitholders of the Trust Fund
of record as of the business day prior to the evaluation then being made.
The resulting figure is herein called a "Trust Fund Evaluation."
Prior to the payment to the Depositor of its reimbursable organization
costs to be made at the earlier of six months after the Initial Date of
Deposit or the conclusion of the primary offering period in accordance with
Section 10.02, for purposes of determining the Trust Fund Evaluation under
this Section 5.01, the Trustee shall rely upon the amounts representing
unpaid accrued organization costs in the estimated amount per Unit set
forth in the Prospectus until such time as the Depositor notifies the
Trustee in writing of a revised estimated amount per Unit representing
unpaid accrued organization costs. Upon receipt of such notice, the Trustee
shall use this revised estimated amount per Unit representing unpaid
accrued organization costs in determining the Trust Fund Evaluation but
such revision of the estimated expenses shall not effect calculations made
prior thereto and no adjustment shall be made in respect thereof.
(j) Notwithstanding anything to the contrary contained in Sections 3.04,
3.11, 3.13, 4.03 and 8.05 or otherwise herein, expenses of each Trust shall be
paid to the appropriate party on or about the 15th day of each month. Until the
Trustee is notified by the Depositor that the primary offering period has
terminated, the fees, where applicable, shall be accrued daily and based on the
number of Units outstanding on each day. After the primary offering period has
terminated, the fees, where applicable, shall accrue daily and be based on the
number of Units outstanding on the most recent prior Record Date specified in
the Prospectus.
(k) Section 8.01(i) shall be amended to read in its entirety as follows:
(i) Notwithstanding any provisions of this Agreement to the contrary,
no payment to a Depositor or to any principal underwriter (as defined in
the Investment Company Act of 1940) for the Trust Fund or to any affiliated
person (as so defined) or agent of a Depositor or such underwriter shall be
allowed the Trustee as an expense except for payment of such reasonable
amounts as the Securities and Exchange Commission may prescribe as
compensation for performing bookkeeping and other administrative services
of a character normally performed by the Trustee.
(l) The following replaces the first two sentences of Section 8.05:
The Trustee shall receive at the times and in the manner set forth in
Section 3.04 as compensation for performing the usual, ordinary, normal and
recurring services under this Agreement during the preceding month an
amount equal to the amount specified as compensation for the Trustee in the
Prospectus. Such fee shall accrue daily and be computed on the basis of the
largest number of Units outstanding during the period with respect to which
such compensation is paid.
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(m) All references to the "NASDAQ National Market System" herein and in
the Standard Terms and Conditions of Trust shall be replaced with "The NASDAQ
Stock Market, Inc."
(n) Subsection (b) of Section 2.01 shall be amended to replace subsections
(1)-(4) with the following and to redesignate subsection (5) as subsection (4):
(b) (1) From time to time following the Initial Date of Deposit for a
Trust, the Depositor is hereby authorized, in its discretion, to assign,
convey to and deposit with the Trustee (i) additional Securities for such
Trust, duly endorsed in blank or accompanied by all necessary instruments
of assignment and transfer in proper form, or (ii) Contract Securities
relating to such additional Securities, accompanied by cash and/or
Letter(s) of Credit as specified in paragraph (c) of this Section 2.01. In
lieu of additional Securities or Contract Securities, the Depositor may
deposit with the Trustee cash (or a Letter of Credit) in an amount equal to
the valuation made in accordance with Section 4.01 for the date of such
deposit of the additional Securities not delivered or represented by
Contract Securities and the Depositor or its designated agent shall, on
behalf of the Trust, enter into contracts to purchase such additional
Securities and shall provide the Trustee such information as the Trustee
may require in order to settle such transactions and take delivery of such
additional Securities which the Trustee is hereby directed to do. Except as
provided in the following subparagraph (2), after an initial period that
will not exceed 30 days, the Depositor in each case shall ensure that each
deposit of additional Securities shall, as nearly as is practicable, seek
to enable the Trust to replicate the performance of the Nasdaq 100 Index
immediately prior to any subsequent deposit as determined in whole or in
part by computer program output operated independently of the Depositor.
Any brokerage fees related to the purchase of Securities deposited in the
Trust Fund after the Initial Date of Deposit shall be an expense of such
Trust Fund. The Depositor shall deliver any additional Securities which
were not delivered concurrently with the deposit of additional Securities
and which were represented by Contract Obligations within 10 calendar days
after such deposit of additional Securities (the "Additional Securities
Delivery Period"). If a contract to buy such Securities between the
Depositor and seller is terminated by the seller thereof for any reason
beyond the control of the Depositor or if for any other reason such
Securities are not delivered to the Trust by the end of the Additional
Securities Delivery Period for such deposit, the Trustee shall immediately
draw on the Letter of Credit, if any, in amounts sufficient to settle such
contract, apply the monies in accordance with Section 2.01(d), and the
Depositor shall forthwith take the remedial action specified in Section
3.10. If the Depositor does not take the action specified in Section 3.10
within 10 calendar days of the end of the Additional Securities Delivery
Period, the Trustee shall forthwith take the action specified in Section
3.10. If the Depositor has acted as broker in connection with any purchase
of Securities made on behalf of the Trust, which it is hereby authorized to
do, it shall be entitled to reimbursement in accordance with applicable law
and regulations. The Trustee shall have no liability for any loss or
depreciation resulting from any acquisition of Securities pursuant to this
Section (other than to confirm the identity and amount of Securities
delivered to it pursuant to contracts deposited or entered into by the
Depositor) and shall have no responsibility for the composition of the
Trust portfolio.
(2) Additional Securities (or Contract Securities therefor) may, at
the Depositor's discretion, be deposited or purchased in round lots. If the
amount of the deposit is insufficient to acquire round lots of each
Security to be acquired, the additional Securities shall be deposited or
purchased in the order of the Security in the Trust most
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under-represented in the Trust's portfolio as determined, in whole or in
part, by computer program output operated independently of the Depositor
which tracks the Nasdaq 100 Index.
(3) If at the time of a deposit of additional Securities, Securities
of an issue deposited on the Initial Date of Deposit (or of an issue of
Replacement Securities acquired to replace an issue deposited on the
Initial Date of Deposit) are unavailable, cannot be purchased at reasonable
prices or their purchase is prohibited or restricted by applicable law,
regulation or policies, the Depositor may (i) deposit, or purchase on
behalf of the Trust or designate an agent to purchase on behalf of the
Trust in respect of cash deposited therein for such purpose, in lieu
thereof, another issue of Securities or Replacement Securities or (ii)
deposit cash or a letter of credit in an amount equal to the valuation of
the issue of Securities whose acquisition is not feasible and enter into
contracts, or designate an agent to enter into contracts, on behalf of the
Trust to acquire such Securities of such issue when they become available.
The second paragraph of Section 3.04(b) shall have the following added to
the end of the paragraph:
Notwithstanding anything to the contrary contained in this paragraph, the
Depositor may, but is not obligated to, direct the investment of any
amounts held in the Capital Account that have not previously been used to
pay for the redemption of Units tendered to a Trust Fund, into any
Securities which are under-represented in the Trust's portfolio as
determined by, in whole or in part, computer program output operated
independently of the Depositor which tracks the Nasdaq 100 Index.
(o) The following shall be added as subsection (f) to Section 3.04:
(f) Notwithstanding the foregoing, if a Trust has elected to be taxed
as a "regulated investment company" as defined in the United States
Internal Revenue Code of 1986, as amended, the Trustee shall make such
additional distributions to Unitholders as shall be determined by the
Depositor or such agent as the Depositor shall designate to be necessary or
desirable to maintain the status of the Trust as a Regulated Investment
Company or to avoid imposition of any income or excise taxes on
undistributed income of the Trust. The Trustee shall be authorized to rely
conclusively upon the direction, and shall have no duty to make any
additional distributions from the Trust in the absence of such direction.
The Trustee shall have no liability for any tax or other liability incurred
by reason of action or inaction resulting from such direction. The fees of
such auditors shall be an expense of the Trust reimbursable to the Trustee
in accordance with section 8.05.
(p) The following replaces the second paragraph of Section 3.08:
In the event that an offer by the issuer of any of the Securities of
any other party shall be made to issue new securities, or to exchange
securities, for Trust Securities, the Trustee shall reject such offer.
However, should any issuance, exchange or substitution be effected
notwithstanding such rejection or without an initial offer, any securities,
cash and/or property received shall be deposited hereunder and shall be
promptly sold, if securities or property, by the Trustee; provided,
however, if such securities are components of the Nasdaq 100 Index, the
Depositor may advise the Trustee to keep such securities. The cash received
in such exchange and cash proceeds of any such sales shall, as the
Depositor shall direct, in the following priority, be (1) reinvested, to
the extent practicable, into any Securities which are under-represented in
the Trust's portfolio as determined by, in whole or in part, computer
program output operated independently of the Depositor which tracks such
index or (2) distributed to Unitholders on the next Capital Distribution
Date in the manner set forth in this Agreement regarding distributions from
the Capital Account. Without limiting the generality of the foregoing, in
determining whether such reinvestment is practicable, the Depositor may,
but is not obligated to, specifically consider the ability of the Trust to
reinvest such proceeds into round lots of a Security. Except as provided in
Article VIII, the Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any such rejection or sale.
(q) Section 3.06 shall be amended to read, in its entirety, as follows:
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Section 3.06. Extraordinary Sale of Securities and Reinvestment. The
Depositor by written notice may direct the Trustee to sell Securities at
such price and time and in such manner as shall be deemed appropriate by
the Depositor if the Depositor shall have determined that any one or more
of the following conditions exist:
(a) that there has been a default in the payment of principal of or
interest on any outstanding debt obligations of the issuer of such
Securities;
(b) that the price of any such Security has declined to such an
extent, as a result of adverse issuer credit factors, so that in the
opinion of the Depositor the retention of such Securities would be
detrimental to the interest of the Unitholders;
(c) if the Trust has elected to be taxed as a "regulated investment
company" as defined in the United States Internal Revenue Code of 1986, as
amended, that such sale is necessary or advisable (i) to maintain the
qualification of the Trust as a regulated investment company or (ii) to
provide funds to make any distribution for a taxable year in order to avoid
imposition of any income or excise taxes on undistributed income in the
Trust;
(d) that the Security has been removed from the Nasdaq 100 Index; or
(e) that computer program output operated independently of the
Depositor which tracks the Nasdaq 100 Index indicates that the Security is
over-represented in the Trust's portfolio in comparison to such Security's
percentage weighting in such index.
Upon receipt of such direction from the Depositor, the Trustee shall
proceed to sell the specified Securities in such manner as the Depositor
shall direct. In the event a Security is sold pursuant to Section 3.06(d),
the Depositor may direct the reinvestment of the proceeds of the sale of
such Security, to the extent practicable, into any security which replaces
such Security as a component of the Nasdaq 100 Index or, if no security so
replaces such Security, into any other Securities which are under-
represented in the Trust's portfolio as determined in whole or in part, by
computer program output operated independently of the Depositor which
tracks the Nasdaq 100 Index. In the event a Security is sold pursuant to
Section 3.06(a), (b), (c) or (e), the Depositor may direct the reinvestment
of the proceeds of the sale of such Security, to the extent practicable,
into any other Securities which are under-represented in the Trust's
portfolio as determined in whole or in part, by computer program output
operated independently of the Depositor which tracks the Nasdaq 100 Index.
Without limiting the generality of the foregoing, in determining whether
such reinvestment is practicable, the Depositor may, but is not obligated
to, specifically consider the ability of the Trust to reinvest such
proceeds into round lots of a Security. Contracts for sale or purchase of
Securities shall be made by the Depositor on behalf of the Trust or by such
agent as the Depositor shall designate. The Depositor or the agent shall
provide the Trustee such information as the Trustee may require in order to
settle the transactions. The Trustee shall not be liable or responsible in
any way for depreciation or loss incurred by reason of any sale or purchase
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 or purchase any Securities under
this Section 3.06 and shall have no responsibility for the composition of
the Trust portfolio. The Depositor shall not be liable for errors of
judgment in directing or failing to direct the Trustee pursuant to this
Section 3.06. This provision, however, shall not protect the Trustee or
Depositor against
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any liability for which they would otherwise be subject, respectively, by
reason of willful misfeasance, bad faith or gross negligence in the
performance of their duties or by reason of their reckless disregard of
their obligations and duties hereunder.
The Depositor or its designated agent shall make such reviews of the
Trust portfolio as shall be necessary to maintain qualification of the
Trust as a Regulated Investment Company and the Depositor shall be
authorized to rely conclusively upon such reviews in directing sales
pursuant to paragraph (c) of this section.
(r) Paragraphs (a) and (b) of Section 3.10 shall be amended as follows:
(a) The New Securities shall be a component of the Nasdaq 100 Index.
(b) The Depositor shall furnish a notice to the Trustee (which may
be part of the Failed Contract Notice) in respect of the New Security
purchased or to be purchased that shall (i) identify the New Securities,
(ii) state that the contract to purchase, if any, entered into by the
Depositor is satisfactory in form and substance and (iii) state that the
foregoing conditions of clause (a) have been satisfied with respect to the
New Securities.
Paragraph (c) of Section 3.10 shall be deleted.
(s) Article III of the Standard Terms and Conditions of Trust is hereby
amended to add the following section:
Section 3.14. License Fees.
For the Nuveen Nasdaq 100 Index Portfolio ("Nasdaq 100 Trust") and
pursuant to a Licensing Agreement between The Nasdaq Stock Market, Inc.
("Nasdaq") and the Depositor (the "Nasdaq Agreement"), as consideration for
the licenses granted by Nasdaq for the right to use its trademarks and
trade names or service marks, the Nasdaq 100 Trust will pay the fees
provided for in the Nasdaq Agreement to Nasdaq or the Depositor to
reimburse the Depositor for payment of the expenses.
If the Nasdaq Agreement provides for an annual license fee computed in
whole or in part by reference to the quarter-end asset balances of the
Nasdaq 100 Trust, for purposes of calculating the accrual of estimated
expenses, such annual fee shall accrue at a daily rate and the Trustee is
authorized to compute an annual licensing fee payment (i) until the
quarter-end in which the Depositor has informed the Trustee that there will
be no further deposits of additional Securities, by reference to an
estimate of the quarter-end asset balances which the Depositor shall
provide the Trustee, and (ii) thereafter by reference to the previous
quarter-end asset balance of the applicable Nasdaq 100 Trust. The Trustee
shall adjust the net asset value (Trust Fund Evaluation) as of the dates
specified in the preceding sentence to account for any variation between
accrual of estimated license fees and the license fees payable pursuant to
the Nasdaq Agreement, but such adjustment shall not affect calculations
made prior thereto and no adjustment shall be made in respect thereof.
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(t) The following is added to the end of the first paragraph of Section
5.02.
If Securities in the Trust are sold for the payment of the Redemption Price
and there are excess proceeds remaining after meeting redemption requests,
the Depositor may, but is not obligated to, direct the investment of such
excess proceeds into any Securities which are under-represented in the
Trust's portfolio as determined, in whole or in part, by computer program
output operated independently of the Depositor which tracks the Nasdaq 100
Index in the manner provided in section 3.06.
(u) Section 5.03 shall be deleted.
(v) The following paragraph shall be added to Section 9.01:
Notwithstanding anything to the contrary herein, if at any time the
Nasdaq 100 Index shall no longer be compiled, maintained or made available,
the Depositor may (a) direct that the Trust created hereby continue to be
operated hereunder utilizing the components of the Nasdaq 100 Index, and
the percentage weightings of such components, as existed on the last date
on which the Nasdaq 100 Index components and weightings were available to
the Trust or (b) direct the Trustee to terminate this Agreement and the
Trust created hereby and liquidate the Trust in such manner as the
Depositor shall direct.
(w) The first paragraph of Section 10.01 shall be replaced with the
following paragraph:
Section 10.01. Amendment and Waiver. This Agreement may be amended from
time to time by the Depositor and the Trustee without the consent of any of
the Unitholders (a) to cure any ambiguity or to correct or supplement any
provisions contained herein which may be defective or inconsistent with any
other provision contained herein; (b) to change any provision hereof as may
be required by the Securities and Exchange Commission or any successor
governmental agency exercising similar authority; (c) to make such
amendments as may be necessary for the Trust to continue to qualify as a
regulated investment company for federal income tax purposes; or (d) to
make such other provisions in regard to matters or questions arising
hereunder as shall not adversely affect the interest of the Unitholders (as
determined in good faith by the Depositor and the Trustee). This Agreement
may also be amended from time to time by the Depositor and the Trustee (or
the performance of any of the provisions of this Agreement may be waived)
with the consent of holders of Units representing 66-2/3% of the Units at
the time outstanding under the Trust Agreement of the individual Trust Fund
or Trust Funds affected for the purpose of adding any provisions of this
Agreement or of materially modifying in any manner the rights of the
holders of Units of such Trust Fund or Trust Funds; provided, however, that
in no event may any amendment be made which would (a) alter the rights to
the Unitholders as against each other, (b) provide the Trustee with the
power to engage in business or investment activities other than as
specifically provided in this Agreement or (c) adversely affect the
characterization of the Trust as a regulated investment company for federal
income tax purposes; provided, further, that the consent of 100% of the
Unitholders of any individual Trust Fund is required to amend
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this Agreement (a) to reduce the aforesaid percentage of Units the holders
of which are required to consent to certain amendments and (b) to reduce
the interest in such Trust Fund represented by any Units of such Trust
Fund.
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In Witness Whereof, Xxxx Nuveen & Co. Incorporated, has caused this
Trust Indenture and Agreement for Nuveen Unit Trusts, Series 33 to be executed
by its President, one of its Vice Presidents or one of its Assistant Vice
Presidents and its corporate seal to be hereto affixed and attested by its
Secretary or its Assistant Secretary and The Chase Manhattan Bank has caused
this Trust Indenture and Agreement to be executed by one of its Vice Presidents
or Second Vice Presidents and its corporate seal to be hereto affixed and
attested to by one of its Assistant Treasurers; all as of the day, month and
year first above written.
Xxxx Nuveen & Co. Incorporated,
Depositor
By /s/ Xxxxxx X. Xxxxx
----------------------------
Authorized Officer
(Seal)
Attest:
By /s/ Xxxxx X. Xxxxx
-------------------------
Assistant Secretary
The Chase Manhattan Bank, Trustee
By /s/ Xxxxxx Xxxxxx
----------------------------
Assistant Vice President
(Seal)
Attest:
By /s/ Xxxxxx X. Xxxx
--------------------------
Assistant Treasurer
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Schedule A to the Trust Indenture and Agreement
Securities Initially Deposited
in
Nuveen Unit Trusts, SERIES 33
(Note: Incorporated herein and made a part hereof is the "Schedule of
Investments" as set forth for the Trust in the Prospectus.)
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