FT 311
TRUST AGREEMENT
Dated: February 26, 1999
The Trust Agreement among Nike Securities L.P., as Depositor, The Chase
Manhattan Bank, as Trustee and First Trust Advisors L.P., as Evaluator
and Portfolio Supervisor, sets forth certain provisions in full and
incorporates other provisions by reference to the document entitled
"Standard Terms and Conditions of Trust for The First Trust Special
Situations Trust, Series 22 and certain subsequent Series, Effective
November 20, 1991" (herein called the "Standard Terms and Conditions of
Trust"), 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 premises and of the mutual agreements herein
contained, the Depositor, the Trustee, the Evaluator and the Portfolio
Supervisor agree as follows:
PART I
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II and Part III 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
FOR THE DOW (sm) TARGET 5 PORTFOLIO, MARCH 1999 SERIES ("TARGET 5 TRUST")
The following special terms and conditions are hereby agreed to:
A. The Securities initially deposited in the Trust pursuant to
Section 2.01 of the Standard Terms and Conditions of Trust are set forth
in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the Trust on
the Initial Date of Deposit and the initial fractional undivided
interest in and ownership of the Trust represented by each Unit thereof
are set forth in the Prospectus in the section "Summary of Essential
Information."
Documents representing this number of Units for the Trust are being
delivered by the Trustee to the Depositor pursuant to Section 2.03 of
the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as set
forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus for
the sale of Units dated the date hereof (the "Prospectus") under
"Summary of Essential Information."
E. The Distribution Date shall be as set forth in the Prospectus
under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as set
forth in the Prospectus under "Summary of Essential Information."
G. The Evaluator's compensation as referred to in Section 4.03 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0025 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Evaluator
provides services during less than the whole of such year). Such fee
may exceed the actual cost of providing such evaluation services for the
Trust, but at no time will the total amount received for evaluation
services rendered to unit investment trusts of which Nike Securities
L.P. is the sponsor in any calendar year exceed the aggregate cost to
the Evaluator of supplying such services in such year.
H. The Trustee's Compensation Rate pursuant to Section 6.04 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0065 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I. The Initial Date of Deposit for the Trust is February 26, 1999.
J. The minimum amount of Securities to be sold by the Trustee
pursuant to Section 5.02 of the Indenture for the redemption of Units
shall be 100 shares.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
FOR THE DOW (sm) TARGET 10 PORTFOLIO, MARCH 1999 SERIES ("TARGET 10 TRUST")
The following special terms and conditions are hereby agreed to:
A. The Securities initially deposited in the Trust pursuant to
Section 2.01 of the Standard Terms and Conditions of Trust are set forth
in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the Trust on
the Initial Date of Deposit and the initial fractional undivided
interest in and ownership of the Trust represented by each Unit thereof
are set forth in the Prospectus in the section "Summary of Essential
Information."
Documents representing this number of Units for the Trust are being
delivered by the Trustee to the Depositor pursuant to Section 2.03 of
the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as set
forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus for
the sale of Units dated the date hereof (the "Prospectus") under
"Summary of Essential Information."
E. The Distribution Date shall be as set forth in the Prospectus
under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as set
forth in the Prospectus under "Summary of Essential Information."
G. The Evaluator's compensation as referred to in Section 4.03 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0025 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Evaluator
provides services during less than the whole of such year). Such fee
may exceed the actual cost of providing such evaluation services for the
Trust, but at no time will the total amount received for evaluation
services rendered to unit investment trusts of which Nike Securities
L.P. is the sponsor in any calendar year exceed the aggregate cost to
the Evaluator of supplying such services in such year.
H. The Trustee's Compensation Rate pursuant to Section 6.04 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0065 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I. The Initial Date of Deposit for the Trust is February 26, 1999.
J. The minimum amount of Securities to be sold by the Trustee
pursuant to Section 5.02 of the Indenture for the redemption of Units
shall be 100 shares.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
FOR TARGET 25 PORTFOLIO, MARCH 1999 SERIES
("TARGET 25 TRUST")
The following special terms and conditions are hereby agreed to:
A. The Securities initially deposited in the Trust pursuant to
Section 2.01 of the Standard Terms and Conditions of Trust are set forth
in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the Trust on
the Initial Date of Deposit and the initial fractional undivided
interest in and ownership of the Trust represented by each Unit thereof
are set forth in the Prospectus in the section "Summary of Essential
Information."
Documents representing this number of Units for the Trust are being
delivered by the Trustee to the Depositor pursuant to Section 2.03 of
the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as set
forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus for
the sale of Units dated the date hereof (the "Prospectus") under
"Summary of Essential Information."
E. The Distribution Date shall be as set forth in the Prospectus
under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as set
forth in the Prospectus under "Summary of Essential Information."
G. The Evaluator's compensation as referred to in Section 4.03 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0025 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Evaluator
provides services during less than the whole of such year). Such fee
may exceed the actual cost of providing such evaluation services for the
Trust, but at no time will the total amount received for evaluation
services rendered to unit investment trusts of which Nike Securities
L.P. is the sponsor in any calendar year exceed the aggregate cost to
the Evaluator of supplying such services in such year.
H. The Trustee's Compensation Rate pursuant to Section 6.04 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0065 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I. The Initial Date of Deposit for the Trust is February 26, 1999.
J. The minimum amount of Securities to be sold by the Trustee
pursuant to Section 5.02 of the Indenture for the redemption of Units
shall be 100 shares.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
FOR TARGET SMALL-CAP PORTFOLIO, MARCH 1999 SERIES
("TARGET SMALL-CAP TRUST")
The following special terms and conditions are hereby agreed to:
A. The Securities initially deposited in the Trust pursuant to
Section 2.01 of the Standard Terms and Conditions of Trust are set forth
in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the Trust on
the Initial Date of Deposit and the initial fractional undivided
interest in and ownership of the Trust represented by each Unit thereof
are set forth in the Prospectus in the section "Summary of Essential
Information."
Documents representing this number of Units for the Trust are being
delivered by the Trustee to the Depositor pursuant to Section 2.03 of
the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as set
forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus for
the sale of Units dated the date hereof (the "Prospectus") under
"Summary of Essential Information."
E. The Distribution Date shall be as set forth in the Prospectus
under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as set
forth in the Prospectus under "Summary of Essential Information."
G. The Evaluator's compensation as referred to in Section 4.03 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0025 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Evaluator
provides services during less than the whole of such year). Such fee
may exceed the actual cost of providing such evaluation services for the
Trust, but at no time will the total amount received for evaluation
services rendered to unit investment trusts of which Nike Securities
L.P. is the sponsor in any calendar year exceed the aggregate cost to
the Evaluator of supplying such services in such year.
H. The Trustee's Compensation Rate pursuant to Section 6.04 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0065 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I. The Initial Date of Deposit for the Trust is February 26, 1999.
J. The minimum amount of Securities to be sold by the Trustee
pursuant to Section 5.02 of the Indenture for the redemption of Units
shall be 100 shares.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
FOR GLOBAL TARGET 15 PORTFOLIO, MARCH 1999 SERIES
("GLOBAL TARGET 15 TRUST")
The following special terms and conditions are hereby agreed to:
A. The Securities initially deposited in the Trust pursuant to
Section 2.01 of the Standard Terms and Conditions of Trust are set forth
in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the Trust on
the Initial Date of Deposit and the initial fractional undivided
interest in and ownership of the Trust represented by each Unit thereof
are set forth in the Prospectus in the section "Summary of Essential
Information."
Documents representing this number of Units for the Trust are being
delivered by the Trustee to the Depositor pursuant to Section 2.03 of
the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as set
forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus for
the sale of Units dated the date hereof (the "Prospectus") under
"Summary of Essential Information."
E. The Distribution Date shall be as set forth in the Prospectus
under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as set
forth in the Prospectus under "Summary of Essential Information."
G. The Evaluator's compensation as referred to in Section 4.03 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0025 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Evaluator
provides services during less than the whole of such year). Such fee
may exceed the actual cost of providing such evaluation services for the
Trust, but at no time will the total amount received for evaluation
services rendered to unit investment trusts of which Nike Securities
L.P. is the sponsor in any calendar year exceed the aggregate cost to
the Evaluator of supplying such services in such year.
H. The Trustee's Compensation Rate pursuant to Section 6.04 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0065 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I. The Initial Date of Deposit for the Trust is February 26, 1999.
J. The minimum amount of Securities to be sold by the Trustee
pursuant to Section 5.02 of the Indenture for the redemption of Units
shall be 100 shares.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
FOR EUROPEAN TARGET 20 PORTFOLIO, MARCH 1999 SERIES
("EUROPEAN TARGET 20 TRUST")
The following special terms and conditions are hereby agreed to:
A. The Securities initially deposited in the Trust pursuant to
Section 2.01 of the Standard Terms and Conditions of Trust are set forth
in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the Trust on
the Initial Date of Deposit and the initial fractional undivided
interest in and ownership of the Trust represented by each Unit thereof
are set forth in the Prospectus in the section "Summary of Essential
Information."
Documents representing this number of Units for the Trust are being
delivered by the Trustee to the Depositor pursuant to Section 2.03 of
the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as set
forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus for
the sale of Units dated the date hereof (the "Prospectus") under
"Summary of Essential Information."
E. The Distribution Date shall be as set forth in the Prospectus
under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as set
forth in the Prospectus under "Summary of Essential Information."
G. The Evaluator's compensation as referred to in Section 4.03 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0025 per Unit calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Evaluator
provides services during less than the whole of such year). Such fee
may exceed the actual cost of providing such evaluation services for the
Trust, but at no time will the total amount received for evaluation
services rendered to unit investment trusts of which Nike Securities
L.P. is the sponsor in any calendar year exceed the aggregate cost to
the Evaluator of supplying such services in such year.
H. The Trustee's Compensation Rate pursuant to Section 6.04 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0065 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I. The Initial Date of Deposit for the Trust is February 26, 1999.
J. The minimum amount of Securities to be sold by the Trustee
pursuant to Section 5.02 of the Indenture for the redemption of Units
shall be 100 shares.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
FOR THE S&P TARGET 10 PORTFOLIO, MARCH 1999 SERIES
("S&P TARGET 10 TRUST")
The following special terms and conditions are hereby agreed to:
A. The Securities initially deposited in the Trust pursuant to
Section 2.01 of the Standard Terms and Conditions of Trust are set forth
in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the Trust on
the Initial Date of Deposit and the initial fractional undivided
interest in and ownership of the Trust represented by each Unit thereof
are set forth in the Prospectus in the section "Summary of Essential
Information."
Documents representing this number of Units for the Trust are being
delivered by the Trustee to the Depositor pursuant to Section 2.03 of
the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as set
forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus for
the sale of Units dated the date hereof (the "Prospectus") under
"Summary of Essential Information."
E. The Distribution Date shall be as set forth in the Prospectus
under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as set
forth in the Prospectus under "Summary of Essential Information."
G. The Evaluator's compensation as referred to in Section 4.03 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0025 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Evaluator
provides services during less than the whole of such year). Such fee
may exceed the actual cost of providing such evaluation services for the
Trust, but at no time will the total amount received for evaluation
services rendered to unit investment trusts of which Nike Securities
L.P. is the sponsor in any calendar year exceed the aggregate cost to
the Evaluator of supplying such services in such year.
H. The Trustee's Compensation Rate pursuant to Section 6.04 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0065 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I. The Initial Date of Deposit for the Trust is February 26, 1999.
J. The minimum amount of Securities to be sold by the Trustee
pursuant to Section 5.02 of the Indenture for the redemption of Units
shall be 100 shares.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
FOR THE NASDAQ TARGET 15 PORTFOLIO, MARCH 1999 SERIES
("NASDAQ TARGET 15 TRUST")
The following special terms and conditions are hereby agreed to:
A. The Securities initially deposited in the Trust pursuant to
Section 2.01 of the Standard Terms and Conditions of Trust are set forth
in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the Trust on
the Initial Date of Deposit and the initial fractional undivided
interest in and ownership of the Trust represented by each Unit thereof
are set forth in the Prospectus in the section "Summary of Essential
Information."
Documents representing this number of Units for the Trust are being
delivered by the Trustee to the Depositor pursuant to Section 2.03 of
the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as set
forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus for
the sale of Units dated the date hereof (the "Prospectus") under
"Summary of Essential Information."
E. The Distribution Date shall be as set forth in the Prospectus
under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as set
forth in the Prospectus under "Summary of Essential Information."
G. The Evaluator's compensation as referred to in Section 4.03 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0025 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Evaluator
provides services during less than the whole of such year). Such fee
may exceed the actual cost of providing such evaluation services for the
Trust, but at no time will the total amount received for evaluation
services rendered to unit investment trusts of which Nike Securities
L.P. is the sponsor in any calendar year exceed the aggregate cost to
the Evaluator of supplying such services in such year.
H. The Trustee's Compensation Rate pursuant to Section 6.04 of
the Standard Terms and Conditions of Trust shall be an annual fee in the
amount of $.0065 per Unit, calculated based on the largest number of
Units outstanding during the calendar year except during the initial
offering period as determined in Section 4.01 of this Indenture, in
which case the fee is calculated based on the largest number of units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year). However, in
no event, except as may otherwise be provided in the Standard Terms and
Conditions of Trust, shall the Trustee receive compensation in any one
year from any Trust of less than $2,000 for such annual compensation.
I. The Initial Date of Deposit for the Trust is February 26, 1999.
J. The minimum amount of Securities to be sold by the Trustee
pursuant to Section 5.02 of the Indenture for the redemption of Units
shall be 100 shares.
PART III
A. Notwithstanding anything to the contrary in the Standard Terms
and Conditions of Trust, references to subsequent Series established
after the date of effectiveness of the First Trust Special Situations
Trust, Series 24 shall include FT 311.
B. Notwithstanding anything to the contrary in the Prospectus,
parties to the trust agreement are hereby advised:
The Trusts are not sponsored, endorsed, sold or promoted by Dow Xxxxx &
Company, Inc. ("Dow Xxxxx"). Dow Xxxxx makes no representation or
warranty, express or implied, to the owners of the Trusts or any member
of the public regarding the advisability of investing in securities
generally or in the Trusts particularly. Dow Xxxxx' only relationship
to the Sponsor is the licensing of certain trademarks, trade names and
service marks of Dow Xxxxx and of the Dow Xxxxx Industrial Average (SM),
which is determined, composed and calculated by Dow Xxxxx without regard
to the Sponsor or the Trusts. Dow Xxxxx has no obligation to take the
needs of the Sponsor or the owners of the Trusts into consideration in
determining, composing or calculating to Dow Xxxxx Industrial Average(SM).
Dow Xxxxx is not responsible for and has not participated in the
determination of the timing of, prices at, or quantities of the Trusts
to be issued or in the determination or calculation of the equation by
which the Trusts are to be converted into cash. Dow Xxxxx has no
obligation or liability in connection with the administration, marketing
or trading of the Trusts.
DOW XXXXX DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF THE
DOW XXXXX INDUSTRIAL AVERAGE (SM) OR ANY DATA INCLUDED THEREIN AND DOW
XXXXX SHALL HAVE NO LIABILITY FOR ANY ERRORS, OMISSIONS, OR
INTERRUPTIONS THEREIN. DOW XXXXX MAKES NO WARRANTY, EXPRESS OR IMPLIED,
AS TO RESULTS TO BE OBTAINED BY THE SPONSOR, OWNERS OF THE TRUSTS, OR
ANY OTHER PERSON OR ENTITY FROM THE USE OF THE DOW XXXXX INDUSTRIAL
AVERAGE (SM) OR ANY DATA INCLUDED THEREIN. DOW XXXXX MAKES NO EXPRESS OR
IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT
TO THE DOW XXXXX INDUSTRIAL AVERAGE (SM) OR ANY DATA INCLUDED THEREIN.
WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL DOW XXXXX HAVE
ANY LIABILITY FOR ANY LOST PROFITS OR INDIRECT, PUNITIVE, SPECIAL OR
CONSEQUENTIAL DAMAGES, EVEN IF NOTIFIED OF THE POSSIBILITY THEREOF.
C. The term "Principal Account" as set forth in the Standard
Terms and Conditions of Trust shall be replaced with the term "Capital
Account."
D. Section 1.01(2) shall be amended to read as follows:
"(2) "Trustee" shall mean The Chase Manhattan Bank, or
any successor trustee appointed as hereinafter provided."
All references to United States Trust Company of New York in the
Standard Terms and Conditions of Trust shall be amended to refer to The
Chase Manhattan Bank.
E. Section 1.01(3) shall be amended to read as follows:
"(3) "Evaluator" shall mean First Trust Advisors L.P. and its successors
in interest, or any successor evaluator appointed as hereinafter
provided."
F. Section 1.01(4) shall be amended to read as follows:
"(4) "Portfolio Supervisor" shall mean First Trust Advisors L.P. and its
successors in interest, or any successor portfolio supervisor appointed
as hereinafter provided."
G. Section 1.01(26) shall be added to read as follows:
"(26) The term "Rollover Unit holder" shall be defined as set forth in
Section 5.05, herein."
H. Section 1.01(27) shall be added to read as follows:
"(27) The "Rollover Notification Date" shall be defined as set forth in
the Prospectus under "Summary of Essential Information."
I. Section 1.01(28) shall be added to read as follows:
"(28) The term "Rollover Distribution" shall be defined as set forth in
Section 5.05, herein."
J. Section 1.01(29) shall be added to read as follows:
"(29) The term "Distribution Agent" shall refer to the Trustee acting
in its capacity as distribution agent pursuant to Section 5.05 herein."
K. Section 1.01(30) shall be added to read as follows:
"(30) The term "Special Redemption and Liquidation Period" shall be as
set forth in the Prospectus under "Summary of Essential Information."
L. Paragraph (b) of Section 2.01 shall be restated in its
entirety as follows:
(b)(1)From time to time following the Initial Date of Deposit, the
Depositor is hereby authorized, in its discretion, to assign, convey to
and deposit with the Trustee (i) additional Securities, duly endorsed in
blank or accompanied by all necessary instruments of assignment and
transfer in proper form, (ii) Contract Obligations relating to such
additional Securities, accompanied by cash and/or Letter(s) of Credit as
specified in paragraph (c) of this Section 2.01, or (iii) cash (or a
Letter of Credit in lieu of cash) with instructions to purchase
additional Securities, in an amount equal to the portion of the Unit
Value of the Units created by such deposit attributable to the
Securities to be purchased pursuant to such instructions. Except as
provided in the following subparagraphs (2), (3) and (4) the Depositor,
in each case, shall ensure that each deposit of additional Securities
pursuant to this Section shall maintain, as nearly as practicable, the
Percentage Ratio. Each such deposit of additional Securities shall be
made pursuant to a Notice of Deposit of Additional Securities delivered
by the Depositor to the Trustee. Instructions to purchase additional
Securities shall be in writing, and shall specify the name of the
Security, CUSIP number, if any, aggregate amount, price or price range
and date to be purchased. When requested by the Trustee, the Depositor
shall act as broker to execute purchases in accordance with such
instructions; the Depositor shall be entitled to compensation therefor
in accordance with applicable law and regulations. The Trustee shall
have no liability for any loss or depreciation resulting from any
purchase made pursuant to the Depositor's instructions or made by the
Depositor as broker.
(2) Additional Securities (or Contract Obligations 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
under-represented immediately before the deposit with respect to the
Percentage Ratio.
(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 instruct the Trustee to purchase, 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 with instructions
to acquire such Securities of such issue when they become available.
(4) Any contrary authorization in the preceding subparagraphs (1)
through (3) notwithstanding, deposits of additional Securities made
after the 90-day period immediately following the Initial Date of
Deposit (except for deposits made to replace Failed Contract Obligations
if such deposits occur within 20 days from the date of a failure
occurring within such initial 90-day period) shall maintain exactly the
Percentage Ratio existing immediately prior to such deposit.
(5) In connection with and at the time of any deposit of
additional Securities pursuant to this Section 2.01(b), the Depositor
shall exactly replicate Cash (as defined below) received or receivable
by the Trust as of the date of such deposit. For purposes of this
paragraph, "Cash" means, as to the Capital Account, cash or other
property (other than Securities) on hand in the Capital Account or
receivable and to be credited to the Capital Account as of the date of
the deposit (other than amounts to be distributed solely to persons
other than holders of Units created by the deposit) and, as to the
Income Account, cash or other property (other than Securities) received
by the Trust as of the date of the deposit or receivable by the Trust in
respect of a record date for a payment on a Security which has occurred
or will occur before the Trust will be the holder of record of a
Security, reduced by the amount of any cash or other property received
or receivable on any Security allocable (in accordance with the
Trustee's calculations of distributions from the Income Account pursuant
to Section 3.05) to a distribution made or to be made in respect of a
Record Date occurring prior to the deposit. Such replication will be
made on the basis of a fraction, the numerator of which is the number of
Units created by the deposit and the denominator of which is the number
of Units which are outstanding immediately prior to the deposit. Cash
represented by a foreign currency shall be replicated in such currency
or, if the Trustee has entered into a contract for the conversion
thereof, in U.S. dollars in an amount replicating the dollars to be
received on such conversion."
M. The following shall be added immediately following the first
sentence of paragraph (c) of Section 2.01:
"The Trustee may allow the Depositor to substitute for any Letter(s) of
Credit deposited with the Trustee in connection with the deposits
described in Section 2.01(a) and (b) cash in an amount sufficient to
satisfy the obligations to which the Letter(s) of Credit relates. Any
substituted Letter(s) of Credit shall be released by the Trustee."
N. Section 2.01(c) of the Standard Terms and Conditions of Trust
is hereby amended by adding the following at the conclusion thereof:
"If any Contract Obligation requires settlement in a foreign
currency, in connection with the deposit of such Contract Obligation the
Depositor will deposit with the Trustee either an amount of such
currency sufficient to settle the contract or a foreign exchange
contract in such amount which settles concurrently with the settlement
of the Contract Obligation and cash or a Letter of Credit in U.S.
dollars sufficient to perform such foreign exchange contact."
O. Section 2.03(a) of the Standard Terms and Conditions of Trust
shall be amended by adding the following sentence after the first
sentence of such section:
"The number of Units may be increased through a split of the Units or
decreased through a reverse split thereof, as directed in writing by the
Depositor, at any time when the Depositor is the only beneficial holder
of Units, which revised number of Units shall be recorded by the Trustee
on its books. The Trustee shall be entitled to rely on the Depositor's
direction as certification that no person other than the Depositor has a
beneficial interest in the Units and the Trustee shall have no liability
to any person for action taken pursuant to such direction."
P. Section 3.01 of the Standard Terms and Conditions of Trust
shall be replaced in its entirety with the following:
"Section 3.01. Initial Cost. 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 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 conclusion of the primary offering period; nor shall
the Depositor be entitled to or request reimbursement for expenses of
organizing the Trust incurred after the conclusion of the primary
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 extent practicable, in the percentage
ratio then existing. The reimbursement provided for in this section
shall be for the account of the Unit holders of record at the conclusion
of the primary offering period. Any assets deposited with the Trustee
in respect of the expenses reimbursable under this Section 3.01 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 Net Assets of the Trust included in the Prospectus not
later than the expiration of the Delivery Period 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 3.01 shall be held by the Trustee, without interest, and
reserved for such purpose and, accordingly, prior to 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 Unit holder redeems Units prior to the conclusion of the primary
offering period, the Trustee shall pay to the Unit holder, in 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.
Q. The second paragraph of Section 3.02 of the Standard
Terms and Conditions is hereby deleted and replaced with the following
sentence:
"Any non-cash distributions (other than a non-taxable distribution of
the shares of the distributing corporation which shall be retained by a
Trust) received by a Trust shall be dealt with in the manner described
at Section 3.11, herein, and shall be retained or disposed of by such
Trust according to those provisions. The proceeds of any disposition
shall be credited to the Income Account of a Trust. Neither the Trustee
nor the Depositor shall be liable or responsible in any way for
depreciation or loss incurred by reason of any such sale."
R. Section 3.05.II(a) of the Standard Terms and
Conditions of Trust is hereby amended to read in its entirety as follows:
"II. (a) On each Distribution Date, the Trustee shall distribute to
each Unit holder of record at the close of business on the Record Date
immediately preceding such Distribution Date an amount per Unit equal to
such Unit holder's Income Distribution (as defined below), plus such
Unit holder's pro rata share of the balance of the Capital Account
(except for monies on deposit therein required to purchase Contract
Obligations) computed as of the close of business on such Record Date
after deduction of any amounts provided in Subsection I, provided,
however, that the Trustee shall not be required to make a distribution
from the Capital Account unless the amount available for distribution
shall equal $1.00 per 100 Units.
Each Trust shall provide the following distribution elections: (1)
distributions to be made by check mailed to the post office address of
the Unit holder as it appears on the registration books of the Trustee,
or (2) the following reinvestment option:
The Trustee will, for any Unit holder who provides the Trustee written
instruction, properly executed and in form satisfactory to the Trustee,
received by the Trustee no later than its close of business 10 business
days prior to a Record Date (the "Reinvestment Notice Date"), reinvest
such Unit holder's distribution from the Income and Capital Accounts in
Units of the Trust, purchased from the Depositor, to the extent the
Depositor shall make Units available for such purchase, at the
Depositor's offering price as of the third business day prior to the
following Distribution Date, and at such reduced sales charge as may be
described in the prospectus for the Trusts. If, for any reason, the
Depositor does not have Units of the Trust available for purchase, the
Trustee shall distribute such Unit holder's distribution from the Income
and Capital Accounts in the manner provided in clause (1) of the
preceding paragraph. The Trustee shall be entitled to rely on a written
instruction received as of the Reinvestment Notice Date and shall not be
affected by any subsequent notice to the contrary. The Trustee shall
have no responsibility for any loss or depreciation resulting from any
reinvestment made in accordance with this paragraph, or for any failure
to make such reinvestment in the event the Depositor does not make Units
available for purchase.
Any Unit holder who does not effectively elect reinvestment in Units of
their respective Trust pursuant to the preceding paragraph shall receive
a cash distribution in the manner provided in clause (1) of the second
preceding paragraph."
S. Section 3.05.II(b) of the Standard Terms and
Conditions of Trust is hereby amended to read in its entirety as follows:
"II. (b) For purposes of this Section 3.05, the Unit holder's
Income Distribution shall be equal to such Unit holder's pro rata share
of the cash balance in the Income Account computed as of the close of
business on the Record Date immediately preceding such Income
Distribution after deduction of (i) the fees and expenses then
deductible pursuant to Section 3.05.I. and (ii) the Trustee's estimate
of other expenses properly chargeable to the Income Account pursuant to
the Indenture which have accrued, as of such Record Date, or are
otherwise properly attributable to the period to which such Income
Distribution relates."
T. Paragraph (c) of Subsection II of Section 3.05 of
the Standard Terms and Conditions of Trust is hereby amended to read as
follows:
"On each Distribution Date the Trustee shall distribute to each Unit
holder of record at the close of business on the Record Date immediately
preceding such Distribution Date an amount per Unit equal to such Unit
holder's pro rata share of the balance of the Capital Account (except
for monies on deposit therein required to purchase Contract Obligations)
computed as of the close of business on such Record Date after deduction
of any amounts provided in Subsection I."
U. Section 3.05 of Article III of the Standard Terms and
Conditions of Trust is hereby amended to include the following subsection:
"Section 3.05.I.(e)deduct from the Income Account or, to the extent
funds are not available in such Account, from the Capital Account and
pay to the Depositor the amount that it is entitled to receive pursuant
to Section 3.14.
V. Section 3.11 of the Standard Terms and Conditions of
Trust is hereby deleted in its entirety and replaced with the following
language:
"Section 3.11. Notice to Depositor.
In the event that the Trustee shall have been notified at any time of
any action to be taken or proposed to be taken by at least a legally
required number of holders of any Securities deposited in a Trust, the
Trustee shall take such action or omit from taking any action, as
appropriate, so as to insure that the Securities are voted as closely as
possible in the same manner and the same general proportion as are the
Securities held by owners other than such Trust.
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, 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
pursuant to the Depositor's direction, unless the Depositor advises the
Trustee to keep such securities or property. The Depositor may rely on
the Portfolio Supervisor in so advising the Trustee. The cash received
in such exchange and cash proceeds of any such sales shall be
distributed to Unit holders on the next distribution date in the manner
set forth in Section 3.05 regarding distributions from the Capital
Account. The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any such sale.
Neither the Depositor nor the Trustee shall be liable to any person for
any action or failure to take action pursuant to the terms of this
Section 3.11.
Whenever new securities or property is received and retained by a Trust
pursuant to this Section 3.11, the Trustee shall provide to all Unit
holders of such Trust notices of such acquisition in the Trustee's
annual report unless prior notice is directed by the Depositor."
W. The first sentence of Section 3.13. shall be amended to read
as follows:
"As compensation for providing supervisory portfolio services under this
Indenture, the Portfolio Supervisor shall receive, in arrears, against a
statement or statements therefor submitted to the Trustee monthly or
annually an aggregate annual fee in the amount of $.0025 per Unit,
calculated based on the largest number of Units outstanding during the
calendar year except during the initial offering period as determined in
Section 4.01 of this Indenture, in which case the fee is calculated
based on the largest number of Units outstanding during the period for
which the compensation is paid (such annual fee to be pro rated for any
calendar year in which the Portfolio Supervisor provides services during
less than the whole of such year). Such fee may exceed the actual cost
of providing such portfolio supervision services for the Trust, but at
no time will the total amount received for portfolio supervision
services rendered to unit investment trusts of which Nike Securities
L.P. is the sponsor in any calendar year exceed the aggregate cost to
the Portfolio Supervisor of supplying such services in such year."
X. Article III of the Standard Terms and Conditions of Trust is
hereby amended by inserting the following paragraphs which shall be
entitled Section 3.14.:
"Section 3.14.Bookkeeping and Administrative Expenses. As compensation
for providing bookkeeping and other administrative services of a
character described in Section 26(a)(2)(C) of the Investment
Company Act of 1940 to the extent such services are in addition to, and
do not duplicate, the services to be provided hereunder by the Trustee
or the Portfolio Supervisor, the Depositor shall receive against a
statement or statements therefor submitted to the Trustee monthly or
annually an aggregate annual fee in the amount of $0 per Unit,
calculated based on the largest number of Units outstanding during the
calendar year except during the initial offering period as determined in
Section 4.01 of this Indenture, in which case the fee is calculated
based on the largest number of Units outstanding during the period for
which the compensation is paid (such annual fee to be pro rated for any
calendar year in which the Depositor provides services during less than
the whole of such year). Such fee may exceed the actual cost of
providing such bookkeeping and administrative services for the Trust,
but at not time will the total amount received for bookkeeping and
administrative services rendered to unit investment trusts of which Nike
Securities L.P. is the sponsor in any calendar year exceed the aggregate
cost to the Depositor of supplying such services in such year. Such
compensation may, from time to time, be adjusted provided that the 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 of Shelter" or
similar index, if such index should no longer be published. The consent
or concurrence of any Unit holder hereunder shall not be required for
any such adjustment or increase. Such compensation shall be paid by the
Trustee, upon receipt of an invoice therefor from the Depositor, upon
which, as to the cost incurred by the Depositor of providing services
hereunder the Trustee may rely, and shall be charged against the Income
and Capital Accounts on or before the Distribution Date following the
Monthly Record Date on which such period terminates. The Trustee shall
have no liability to any Certificateholder or other person for any
payment made in good faith pursuant to this Section.
If the cash balance in the Income and Capital Accounts shall be
insufficient to provide for amounts payable pursuant to this Section
3.14, 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 3.14.
Any moneys payable to the Depositor pursuant to this Section 3.14 shall
be secured by a prior lien on the Trust Fund except that no such lien
shall be prior to any lien in favor of the Trustee under the provisions
of Section 6.04 herein.
Y. Article III of the Standard Terms and Conditions of Trust is
hereby amended by inserting the following paragraph which shall be
entitled Section 3.15:
"Section 3.15. Deferred Sales Charge. If the prospectus related to the
Trust specifies a deferred sales charge, the Trustee shall, on the dates
specified in and as permitted by such Prospectus (the "Deferred Sales
Charge Payment Dates"), withdraw from the Capital Account, an amount per
Unit specified in such Prospectus and credit such amount to a special
non-Trust account designated by the Depositor out of which the deferred
sales charge will be distributed to or on the order of the Depositor on
such Deferred Sales Charge Payment Dates (the "Deferred Sales Charge
Account"). If the balance in the Capital Account is insufficient to
make such withdrawal, the Trustee shall, as directed by the Depositor,
advance funds in an amount required to fund the proposed withdrawal and
be entitled to reimbursement of such advance upon the deposit of
additional monies in the Capital Account, and/or sell Securities and
credit the proceeds thereof to the Deferred Sales Charge Account,
provided, however, that the aggregate amount advanced by the Trustee at
any time for payment of the deferred sales charge shall not exceed
$15,000. Such direction shall, if the Trustee is directed to sell a
Security, identify the Security to be sold and include instructions as
to the execution of such sale. In the absence of such direction by the
Depositor, the Trustee shall sell Securities sufficient to pay the
deferred sales charge (and any unreimbursed advance then outstanding) in
full, and shall select Securities to be sold in such manner as will
maintain (to the extent practicable) the relative proportion of number
of shares of each Security then held. The proceeds of such sales, less
any amounts paid to the Trustee in reimbursement of its advances, shall
be credited to the Deferred Sales Charge Account. If a Unit holder
redeems Units prior to full payment of the deferred sales charge, the
Trustee shall, if so provided in the related Prospectus, on the
Redemption Date, withhold from the Redemption Price payable to such Unit
holder an amount equal to the unpaid portion of the deferred sales
charge and distribute such amount to the Deferred Sales Charge Account.
If the Trust is terminated for reasons other than that set forth in
Section 6.01(g), the Trustee shall, if so provided in the related
Prospectus, on the termination of the Trust, withhold from the proceeds
payable to Unit holders an amount equal to the unpaid portion of the
deferred sales charge and distribute such amount to the Deferred Sales
Charge Account. If the Trust is terminated pursuant to Section 6.01(g),
the Trustee shall not withhold from the proceeds payable to Unit holders
any amounts of unpaid deferred sales charges. If pursuant to Section
5.02 hereof, the Depositor shall purchase a Unit tendered for redemption
prior to the payment in full of the deferred sales charge due on the
tendered Unit, the Depositor shall pay to the Unit holder the amount
specified under Section 5.02 less the unpaid portion of the deferred
sales charge. All advances made by the Trustee pursuant to this Section
shall be secured by a lien on the Trust prior to the interest of the
Unit holders."
Z. Notwithstanding anything to the contrary in Sections 3.15 and
4.05 of the Standard Terms and Conditions of Trust, so long as Nike
Securities L.P. is acting as Depositor, the Trustee shall have no power
to remove the Portfolio Supervisor.
AA. Article III of the Standard Terms and Conditions of Trust is
hereby amended by adding the following new Section 3.16:
"Section 3.16. Foreign Currency Exchange. Unless the Depositor shall
otherwise direct, whenever funds are received by the Trustee in foreign
currency, upon the receipt thereof or, if such funds are to be received
in respect of a sale of Securities, concurrently with the contract of
the sale for the Security (in the latter case the foreign exchange
contract to have a settlement date coincident with the relevant contract
of sale for the Security), the Trustee shall enter into a foreign
exchange contract for the conversion of such funds to U.S. dollars
pursuant to the instruction of the Depositor. The Trustee shall have no
liability for any loss or depreciation resulting from action taken
pursuant to such instruction."
BB. Article IV, Section 4.01 of the Standard Terms and Conditions
of Trust is hereby amended in the following manner:
1. Section 4.01(b) is hereby amended by deleting that portion of
the first sentence appearing after the colon and the entire second
sentence and replacing them in their entirety with the following:
"if the Securities are listed on a national or foreign securities
exchange or The Nasdaq Stock Market, such Evaluation shall generally be
based on the closing sale price on the exchange or system which is the
principal market therefor, which shall be deemed to be the New York
Stock Exchange if the Securities are listed thereon (unless the
Evaluator deems such price inappropriate as a basis for evaluation), or
if there is no closing sale price on such exchange or system, at the
closing ask prices. If the Securities are not so listed or, if so
listed and the principal market therefor is other than on an exchange,
the evaluation shall generally be based on the current ask price on the
over-the-counter market (unless it is determined that these prices are
inappropriate as a basis for evaluation). If current ask prices are
unavailable, the evaluation is generally determined (a) on the basis of
current ask prices for comparable securities, (b) by appraising the
value of the Securities on the ask side of the market or (c) any
combination of the above. If such prices are in a currency other than
U.S. dollars, the Evaluation of such Security shall be converted to U.S.
dollars based on current offering side exchange rates, unless the
Security is in the form of an American Depositary Share or Receipt, in
which case the Evaluations shall be based upon the U.S. dollar prices in
the market for American Depositary Shares or Receipts (unless the
Evaluator deems such prices inappropriate as a basis for valuation). As
used herein, the closing sale price is deemed to mean the most recent
closing sale price on the relevant securities exchange immediately prior
to the Evaluation time."
2. Section 4.01(c) is hereby deleted and replaced in its entirety
with the following:
"(c) After the initial offering period and both during and after
the initial offering period, for purposes of the Trust Fund Evaluations
required by Section 5.01 in determining Redemption Value and Unit Value,
Evaluation of the Securities shall be made in the manner described in
Section 4.01(b), on the basis of current bid prices for Zero Coupon
Obligations (if any),the bid side value of the relevant currency
exchange rate expressed in U.S. dollars and, except in those cases in
which the Equity Securities are listed on a national or foreign
securities exchange or The Nasdaq Stock Market and the closing sale
prices are utilized, on the basis of the current bid prices of the
Equity Securities. In addition, the Evaluator shall reduce the
Evaluation of each Security by the amount of any liquidation costs
(other than brokerage costs incurred on any national securities
exchange) and any capital gains or other taxes which would be incurred
by the Trust upon the sale of such Security, such taxes being computed
as if the Security were sold on the date of the Evaluation."
CC. The first sentence of Section 4.03. shall be amended to read
as follows:
"As compensation for providing evaluation services under this Indenture,
the Evaluator shall receive, in arrears, against a statement or
statements therefor submitted to the Trustee monthly or annually an
aggregate annual fee equal to the amount specified as compensation for
the Evaluator in the Trust Agreement, calculated based on the largest
number of Units outstanding during the calendar year except during the
initial offering period as determined in Section 4.01 of this Indenture,
in which case the fee is calculated based on the largest number of Units
outstanding during the period for which the compensation is paid (such
annual fee to be pro rated for any calendar year in which the Evaluator
provides services during less than the whole of such year). Such
compensation may, from time to time, be adjusted provided that the 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 of Shelter" or
similar index, if such index should no longer be published. The consent
or concurrence of any Unit holder hereunder shall not be required for
any such adjustment or increase. Such compensation shall be paid by the
Trustee, upon receipt of invoice therefor from the Evaluator, upon
which, as to the cost incurred by the Evaluator of providing services
hereunder the Trustee may rely, and shall be charged against the Income
and/or Principal Accounts, in accordance with Section 3.05."
DD. Section 5.01 is hereby amended to add the following at the
conclusion of the first paragraph thereof:
"Amounts receivable by the Trust in a foreign currency shall
be reported to the Evaluator who shall convert the same to U.S. dollars
based on current exchange rates, in the same manner as provided in
Section 4.01(b) or 4.01(c), as applicable, for the conversion of the
valuation of foreign Equity Securities, and the Evaluator shall report
such conversion with each Evaluation made pursuant to Section 4.01."
EE. Section 5.01 of the Standard Terms and Conditions of Trust
shall be amended as follows:
(i) The second sentence of the first paragraph of
Section 5.01 shall be amended by deleting the phrase "and (iii)" and
adding the following "(iii) amounts representing unpaid accrued
organizational and offering costs, and (iv)" ; and
(ii) The following text shall immediately precede the last
sentence of the first paragraph of Section 5.01:
"Prior to the payment to the Depositor of its reimbursable organization
costs to be made at the conclusion of the primary offering period in
accordance with Section 3.01, 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."
FF. Section 5.02 of the Standard Terms and Conditions of
Trust is amended by adding the following after the second paragraph of
such section:
"Notwithstanding anything herein to the contrary, in the event that any
tender of Units pursuant to this Section 5.02 would result in the
disposition by the Trustee of less than a whole Security, the Trustee
shall distribute cash in lieu thereof and sell such Securities as
directed by the Sponsors as required to make such cash available.
Subject to the restrictions set forth in the prospectus Unit holders of
the Target 5 Trust, the Target 10 Trust, the Target 25 Trust, the Target
Small-Cap Trust; the S&P Target 10 Trust or The Nasdaq Target 15 Trust
may redeem 1,000 Units or more of such Trust and request a distribution
in kind of (i) such Unit holder's pro rata portion of each of the
Securities in such Trust, in whole shares, and (ii) cash equal to such
Unit holder's pro rata portion of the Income and Capital Accounts as
follows: (x) a pro rata portion of the net proceeds of sale of the
Securities representing any fractional shares included in such Unit
holder's pro rata share of the Securities and (y) such other cash as may
properly be included in such Unit holder's pro rata share of the sum of
the cash balances of the Income and Principal Accounts in an amount
equal to the Unit Value determined on the basis of a Trust Fund
Evaluation made in accordance with Section 5.01 determined by the
Trustee on the date of tender less amounts determined in clauses (i) and
(ii)(x) of this Section. Subject to Section 5.05 with respect to
Rollover Unit holders, to the extent possible, distributions of
Securities pursuant to an in kind redemption of Units shall be made by
the Trustee through the distribution of each of the Securities in book-
entry form to the account of the Unit holder's bank or broker-dealer at
the Depository Trust Company. Any distribution in kind will be reduced
by customary transfer and registration charges."
GG. The following Section 5.05 shall be added:
"Section 5.05. Rollover of Units. (a) If the Depositor shall offer a
subsequent series of the Target 5 Trust, the Target 10 Trust, the Target
25 Trust, the Target Small-Cap Trust, the Global Target 15 Trust, The
European Target 20 Trust, The S&P Target 10 Trust, or The Nasdaq Target
15 Trust (the "New Series"), the Trustee shall, at the Depositor's sole
cost and expense, include in the notice sent to Unit holders specified
in Section 8.02 a form of election whereby Unit holders, whose
redemption distribution would be in an amount sufficient to purchase at
least one Unit of the New Series, may elect to have their Unit(s)
redeemed in kind in the manner provided in Section 5.02, the Securities
included in the redemption distribution sold, and the cash proceeds
applied by the Distribution Agent to purchase Units of a New Series, all
as hereinafter provided. The Trustee shall honor properly completed
election forms returned to the Trustee, accompanied by any Certificate
evidencing Units tendered for redemption or a properly completed
redemption request with respect to uncertificated Units, by its close of
business on the Rollover Notification Date. The notice and form of
election to be sent to Unit holders in respect of any redemption and
purchase of Units of a New Series as provided in this section shall be
in such form and shall be sent at such time or times as the Depositor
shall direct the Trustee in writing and the Trustee shall have no
responsibility therefor. The Distributions Agent acts solely as
disbursing agent in connection with purchases of Units pursuant to this
Section and nothing herein shall be deemed to constitute the
Distribution Agent a broker in such transactions
All Units so tendered by a Unit holder (a "Rollover Unit holder") shall
be redeemed and cancelled during the Special Redemption and Liquidation
Period on such date or dates specified by Depositor. Subject to payment
by such Rollover Unit holder of any tax or other governmental charges
which may be imposed thereon, such redemption is to be made in kind
pursuant to Section 5.02 by distribution of cash and/or Securities to
the Distribution Agent on the redemption date equal to the net asset
value (determined on the basis of the Trust Fund Evaluation as of the
redemption date in accordance with Section 4.01) multiplied by the
number of Units being redeemed (herein called the "Rollover
Distribution"). Any Securities that are made part of the Rollover
Distribution shall be valued for purposes of the redemption distribution
as of the redemption date.
All Securities included in a Unit holder's Rollover Distribution shall
be sold by the Distribution Agent during the Special Redemption and
Liquidation Period specified in the Prospectus pursuant to the
Depositor's direction, and the Distribution Agent shall, unless directed
otherwise by the Depositor, employ the Depositor as broker in connection
with such sales. For such brokerage services, the Depositor shall be
entitled to compensation at its customary rates, provided however, that
its compensation shall not exceed the amount authorized by applicable
securities laws and regulations. The Depositor shall direct that sales
be made in accordance with the guidelines set forth in the Prospectus
under the heading "Special Redemption, Liquidation and Investment in a
New Trust." Should the Depositor fail to provide direction, the
Distribution Agent shall sell the Securities in the manner provided in
the prospectus. The Distribution Agent shall have no responsibility for
any loss or depreciation incurred by reason of any sale made pursuant to
this Section.
Upon completion of all sales of Securities included in the Rollover Unit
holder's Rollover Distribution, the Distribution Agent shall, as agent
for such Rollover Unit holder, enter into a contract with the Depositor
to purchase from the Depositor Units of a New Series (if any), at the
Depositor's public offering price for such Units on such day, and at
such reduced sales charge as shall be described in the prospectus for
such Trust. Such contract shall provide for purchase of the maximum
number of Units of a New Series whose purchase price is equal to or less
than the cash proceeds held by the Distribution Agent for the Unit
holder on such day (including therein the proceeds anticipated to be
received in respect of Securities traded on such day net of all
brokerage fees, governmental charges and any other expenses incurred in
connection with such sale), to the extent Units are available for
purchase from the Depositor. In the event a sale of Securities included
in the Rollover Unit holder's redemption distribution shall not be
consummated in accordance with its terms, the Distribution Agent shall
apply the cash proceeds held for such Unit holder as of the settlement
date for the purchase of Units of a New Series to purchase the maximum
number of Units which such cash balance will permit, and the Depositor
agrees that the settlement date for Units whose purchase was not
consummated as a result of insufficient funds will be extended until
cash proceeds from the Rollover Distribution are available in a
sufficient amount to settle such purchase. If the Unit holder's
Rollover Distribution will produce insufficient cash proceeds to
purchase all of the Units of a New Series contracted for, the Depositor
agrees that the contract shall be rescinded with respect to the Units as
to which there was a cash shortfall without any liability to the
Rollover Unit holder or the Distribution Agent. Any cash balance
remaining after such purchase shall be distributed within a reasonable
time to the Rollover Unit holder by check mailed to the address of such
Unit holder on the registration books of the Trustee. Units of a New
Series will be uncertificated unless and until the Rollover Unit holder
requests a certificate. Any cash held by the Distribution Agent shall
be held in a non-interest bearing account which will be of benefit to
the Distribution Agent in accordance with normal banking procedures.
Neither the Trustee nor the Distribution Agent shall have any
responsibility or liability for loss or depreciation resulting from any
reinvestment made in accordance with this paragraph, or for any failure
to make such reinvestment in the event the Depositor does not make Units
available for purchase.
(b) Notwithstanding the foregoing, the Depositor may, in
its discretion at any time, decide not to offer any new Trust Series in
the future, and if so, this Section 5.05 concerning the Rollover of
Units shall be inoperative.
(c) The Distribution Agent shall receive no fees for
performing its duties hereunder. The Distribution Agent shall, however,
be entitled to receive indemnification and reimbursement from the Trust
for any and all expenses and disbursements to the same extent as the
Trustee is permitted reimbursement hereunder."
HH. Paragraph (e) of Section 6.01 of Article VI of the Standard
Terms and Conditions of Trust is amended to read as follows:
"(e) (I) Subject to the provisions of subparagraphs (II) and
(III) of this paragraph, the Trustee may employ agents, sub-custodians,
attorneys, accountants and auditors and shall not be answerable for the
default or misconduct of any such agents, sub-custodians, attorneys,
accountants or auditors if such agents, sub-custodians, attorneys,
accountants or auditors shall have been selected with reasonable care.
The Trustee shall be fully protected in respect of any action under this
Indenture taken or suffered in good faith by the Trustee in accordance
with the opinion of counsel, which may be counsel to the Depositor
acceptable to the Trustee, provided, however, that this disclaimer of
liability shall not (i) excuse the Trustee from the responsibilities
specified in subparagraph II below or (ii) limit the obligation of the
Trustee to indemnify the Trust under subparagraph III below. The fees
and expenses charged by such agents, sub-custodians, attorneys,
accountants or auditors shall constitute an expense of the Trust
reimbursable from the Income and Capital Accounts of the affected Trust
as set forth in section 6.04 hereof.
(II) The Trustee may place and maintain in the care of an eligible
foreign custodian (which is employed by the Trustee as a sub-custodian
as contemplated by subparagraph (I) of this paragraph (e) and which may
be an affiliate or subsidiary of the Trustee or any other entity in
which the Trustee may have an ownership Income) the Trust's foreign
securities, cash and cash equivalents in amounts reasonably necessary to
effect the Trust's foreign securities transactions, provided that the
Trustee hereby agrees to perform all the duties assigned by rule 17f-5
as now in effect or as it may be amended in the future, to the boards of
management investment companies. The Trustee's duties under the
preceding sentence will not be delegated.
As used in this subparagraph (II),
(1) "foreign securities" include: securities issued and
sold primarily outside the United States by a foreign government, a
national of any foreign country or a corporation or other organization
incorporated or organized under the laws of any foreign country and
securities issued or guaranteed by the government of the United States
or by any state or any political subdivision thereof or by any agency
thereof or by any entity organized under the laws of the United States
or of any state thereof which have been issued and sold primarily
outside the United States.
(2) "eligible foreign custodian" means
(a) The following securities depositories and clearing
agencies which operate transnational systems for the central handling of
securities or equivalent book entries which, by appropriate exemptive
order issued by the Securities and Exchange Commission, have been
qualified as eligible foreign custodians for the Trust but only for so
long as such exemptive order continues in effect: Xxxxxx Guaranty Trust
Company of New York, Brussels, Belgium, in its capacity as operator of
the Euroclear System ("Euroclear"), and Cedel Bank S.A. ("CEDEL").
(b) Any other entity that shall have been qualified as
an eligible foreign custodian for the foreign securities of the Trust by
the Securities and Exchange Commission by exemptive order, rule or
other appropriate action, commencing on such date as it shall have been
so qualified but only for so long as such exemptive order, rule or other
appropriate action continues in effect.
(III) The Trustee will indemnify and hold the Trust
harmless from and against any loss occurring as a result of an eligible
foreign custodian's willful misfeasance, reckless disregard, bad faith,
or gross negligence in performing custodial duties."
II. Paragraph (g) of Section 6.01 of the Standard Terms
and Conditions of Trust is hereby amended by inserting the following
after the first word thereof:
"(i) the value of any Trust as shown by an evaluation by the Trustee
pursuant to Section 5.01 hereof shall be less than the lower of
$2,000,000 or 20% of the total value of Securities deposited in such
Trust during the initial offering period, or (ii)"
JJ . The first sentence of the second paragraph of Section 6.04
shall be amended to include the phrase "license fees, if any,"
immediately after the reference to legal and auditing expenses.
KK. Section 8.02 of the Standard Terms and Conditions of Trust
shall be amended as follows:
(i) The fourth sentence of the second paragraph shall be deleted and
replaced with the following:
"The Trustee will honor duly executed requests for in-kind distributions
received (accompanied by the electing Unit holder's Certificate, if
issued) by the close of business ten business days prior to the
Mandatory Termination Date."
(ii) The first sentence of the fourth paragraph shall be deleted and
replaced with the following:
"Commencing no earlier than the business day following that date on
which Unit holders must submit to the Trustee notice of their request to
receive an in-kind distribution of Securities at termination, the
Trustee will liquidate the Securities not segregated for in-kind
distributions during such period and in such daily amounts as the
Depositor shall direct."
IN WITNESS WHEREOF, Nike Securities L.P., The Chase Manhattan Bank and
First Trust Advisors L.P. have each caused this Trust Agreement to be
executed and the respective corporate seal to be hereto affixed and
attested (if applicable) by authorized officers; all as of the day,
month and year first above written.
NIKE SECURITIES L.P.,
Depositor
By Xxxxxx X. Xxxxxxxxxx
Senior Vice President
THE CHASE MANHATTAN BANK,
Trustee
By Xxxxxxx Xxxxxxx
Vice President
[SEAL]
ATTEST:
Xxxx Xxxxxx
Assistant Treasurer
FIRST TRUST ADVISORS L.P.,
Evaluator
By Xxxxxx X. Xxxxxxxxxx
Senior Vice President
FIRST TRUST ADVISORS L.P.,
Portfolio Supervisor
By Xxxxxx X. Xxxxxxxxxx
Senior Vice President
SCHEDULE A TO TRUST AGREEMENT
Securities Initially Deposited
FT 311
(Note: Incorporated herein and made a part hereof for the Trust is the
"Schedule of Investments" for the Trust as set forth in the Prospectus.)
