EXHIBIT 99.1.1.1
EQUITY FOCUS TRUSTS - SECTOR SERIES, 1998-A
__________________ Portfolio
FORM OF
REFERENCE TRUST INDENTURE
Dated as of May 19, 1998
This Trust Indenture between Smith Barney Inc., as Sponsor,
and The Chase Manhattan Bank, as Trustee (the "Indenture") sets forth certain
provisions in full and incorporates other provisions by reference to the
document entitled "The Uncommon Values Unit Trust, Standard Terms and Conditions
of Trust for Series formed on or subsequent to July 2, 1985" as amended as of
June 27, 1994 (the "Standard Terms and Conditions of Trust") and such provisions
as are set forth in full herein 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 Sponsor 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, except that all references to
"Shearson Lehman Brothers, Inc." shall be deleted and replaced by "Smith Barney
Inc." and all references to Boston Safe Deposit and Trust Company or United
States Trust Company of New York shall be deleted and replaced by The Chase
Manhattan Bank, and further, that The Chase Manhattan Bank shall, by executing
this Trust Indenture, be deemed to be the Trustee and a party to said Standard
Terms and Conditions of Trust for all purposes of this Trust.
Part II
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
(a) The Securities (including Contract Securities) listed in the
Prospectus relating to Equity Focus Trusts - Sector Series, 1998-A,
_____________________ Portfolio shall be shares of common stock, which
securities have been deposited with (or assigned to) the Trustee under this
Indenture. Subject to the provisions contained in the Standard Terms and
Conditions of Trust, any new Securities deposited in the Trust Fund pursuant to
Section 3.06 will be those which, assuming consummation of the particular
transaction, will maintain the same proportionate relationship among the number
of shares of each of the various Securities in the Trust Fund as exists among
the Securities in the Trust Fund immediately preceding any such deposit or
distribution, subject, however, to any change in such proportionate relationship
in accordance with Sections 3.05, 3.08, 3.11, 3.12 or 5.02.
(b) In all places in the Standard Terms and Conditions of Trust where
the words "Monthly Income Distribution" appear, these words shall be deleted and
replaced by "Income Distribution".
(c) The definition of "Distribution Agency Agreement" and all
references thereto shall be deleted.
(d) The definition of "Distribution Day" shall be deleted and
replaced by the following:
"The day designated as such in the Prospectus under the
heading 'Investment Summary'."
(e) In the definition of Evaluation Time, the words "Part II of the
Reference Trust Indenture" shall be changed to read: "the Prospectus."
(f) Section 2.02 is hereby amended by adding the following sentence
as the second sentence of Section 2.02: "Effective as of the Evaluation Time on
May 20, 1998, in the event that the aggregate value of Securities in the Trust
has increased since the evaluation on May 19, 1998, the Trustee shall issue such
number of additional Units to the Holder of outstanding Units as of the close of
business on May 19, 1998, that the price per Unit computed as of the Evaluation
Time on May 20, 1998, plus the maximum applicable sales charge shall equal $1
per Unit (based on the number of Units outstanding as of said Evaluation Time,
including the additional Units issued pursuant to this sentence);
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in the event that the aggregate value of Securities in the Trust Fund has
decreased since the evaluation on May 19, 1998, there will be a reverse split of
the outstanding Units, and said Holder will surrender to the Trustee for
cancellation such number of Units, that the price per Unit computed as of the
Evaluation Time on May 20, 1998 plus the maximum applicable sales charge shall
equal $1 per Unit (based on the number of Units outstanding as of said
Evaluation Time, reflecting cancellation of Units pursuant to this sentence)."
(g) The third and fourth paragraphs of Section 3.04 shall be deleted and
replaced by the following four paragraphs:
"The Income Distribution shall be calculated as follows:
The Trustee shall as of each Record Day compute the amount
distributable to Holders on the next Distribution Day (the "Income
Distribution"), which amount, subject to the limitations on the
Trustee's advances set forth in Section 3.01(b), shall be equal to
the cash balance of the Income Account plus any amount receivable on
obligations purchased pursuant to Section 3.06(j) on or before the
following Distribution Day less accrued and unpaid expenses of the
Trust Fund and any amounts payable from the Income Account in respect
of Units tendered for redemption prior to such Record Day divided by
the number of Units outstanding on such Record Day; provided,
however, that as of the Record Date occurring in the month of
December of each calendar year, the Trustee shall advance to the
Income Account, and shall include in the cash balance thereof, the
amount of any dividends not received as of such Record Date which are
payable to the Trust Fund prior to the end of the calendar year, and
provided further that the Trustee may increase or decrease the amount
of the resulting calculation in order to reflect the differences in
Income actually received or fees, expenses, losses, liabilities or
advances actually incurred or made in any prior period from the
amounts estimated therefor. The Trustee shall withhold from a
Holder's Income Distribution any portion of the Deferred Sales Charge
deductible therefrom pursuant to Section 3.18 hereof. The Trustee
shall be entitled to be reimbursed, without interest, for any and all
amounts advanced by it pursuant to the preceding sentence, or
otherwise hereunder, from funds subsequently received by the Trust
Fund as income on any of the Securities. The Trustee shall be deemed
to be the beneficial owner of the income of the Trust Fund to the
extent such income is required to reimburse the Trustee for amounts
advanced by it pursuant to this Section and to such extent shall have
a lien on the assets of the Trust Fund prior to the interest of the
Holders.
"Subject to the provisions of the succeeding two paragraphs,
distributions shall be made as follows: on or
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shortly after each Distribution Day the Trustee shall distribute by
check mailed to each Holder of record at the close of business on the
preceding Record Day, at the post office address of the Holder
appearing on the record books of the Trustee or by any other means
mutually agreed upon by the Holder and the Trustee, an amount
substantially equal to the Income Distribution in respect of such
Distribution Day, plus the Holder's pro rata share of the cash
balance of the Capital Account (but not including cash required to
purchase Contract Securities or held for reinvestment in Substitute
Securities pursuant to Section 3.11) computed as of the close of
business on the preceding Record Day; provided, however, that the
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Trustee in its discretion may on any Distribution Day determine that
the amount of the Income Distribution per Unit because of any unusual
or extraordinary increase or decrease in the expenses incurred or
expected to be incurred by the Trust Fund. In making the computation
of such Holder's interest in the balance of the Income Capital
Accounts, fractions of less than one cent per unit may be omitted.
"In the event that the Sponsor adopts a Reinvestment Plan
the cash distributions to Holders shall be automatically reinvested
by the Sponsor in additional Units of the Trust. Units of the Trust
purchased under the Reinvestment Plan shall be purchased at the
Sponsor's Repurchase Price (the net asset value per Unit without a
sales charge) in effect at the close of business on the Distribution
Day. The Units purchased may be either previously issued Units
repurchased by the Sponsor or newly created Units created upon the
deposit of additional Securities in the Trust. The cost of the
Reinvestment Plan will be borne by the Sponsor, at no additional cost
to the Trust or individual Holders. Holders will receive an account
statement reflecting any purchase of Units under the Reinvestment
Plan. The Sponsor reserves the right to amend, modify or terminate
the Reinvestment Plan at any time without prior notice.
"A Holder may elect not to participate in the Reinvestment
Plan by notifying his financial consultant at Smith Barney Inc. or by
notifying the Trustee in writing by ten days prior to the
Distribution Day, which election may be modified or terminated by
similar notice. The Sponsor shall promptly inform the Trustee of any
election or modification or termination thereof received by it from a
Holder and the Trustee shall be authorized conclusively to rely on
any notice so received from the Sponsor. In the event the Holder
elects not to participate in the Reinvestment Plan, or in the event
that the Sponsor does not adopt or terminates a Reinvestment Plan,
the Trustee shall distribute the amount described above by check
mailed to
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each Holder of record at the close of business on the preceding Record Day, at
the post office address of the Holder appearing on the record books of the
Trustee or by any other means mutually agreed upon by the Holder and the
Trustee."
(h) Section 3.06 is amended to read as follows:
"SECTION 3.06. Deposit of Additional Securities. (a) Subject to the
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requirements set forth below in this Section, the Sponsor may, on any Business
Day (the "Trade Date"), subscribe for Additional Units as follows:
(1) Prior to the Evaluation Time on the Trade Date, the
Sponsor shall provide notice (the "Subscription Notice") to
the Trustee, by telecopy or by written communication, of
the Sponsor's intention to subscribe for Additional Units.
The Subscription Notice shall identify the additional
Securities to be acquired ("Additional Securities") (unless
such Additional Securities are a precise replication of the
then existing portfolio) and shall either (i) specify the
quantity of Additional Securities to be deposited by the
Sponsor on the settlement date for such subscription or
(ii) instruct the Trustee to purchase Additional Securities
with an aggregate value as specified in the Subscription
Notice.
(2) Promptly following the Evaluation Time on such Business
Day, the Sponsor shall verify with the Trustee, by
telecopy, the number of Additional Units to be created.
(3) Not later than the time on the settlement date for such
subscription when the Trustee is to deliver the Additional
Units created thereby (which time shall not be later than
the time by which the Trustee is required to settle any
contracts for the purchase of Additional Securities entered
into by the Trustee pursuant to the instruction of the
Sponsor referred to in subparagraph (1) above), the Sponsor
shall deposit with the Trustee (i) any Additional
Securities specified in the Subscription Notice (or
contracts to purchase such Additional Securities together
with cash or a letter of credit in the amount necessary to
settle such contracts) or (ii) cash or a letter of credit
in the amount equal to the aggregate value of the
Additional Securities specified in the Subscription Notice,
together with, in each case, cash equal to a pro rata
portion of the Trust Fund Cash Evaluation (as defined in
Section 5.01(b) bearing the same ratio to the Units created
by the deposit as the Trust Fund Cash
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Evaluation bears to the Units outstanding immediately prior
to the deposit. Each deposit made during the 90 days
following the deposit made pursuant to this Section 3.06
hereof shall replicate, to the extent practicable, the
original proportionate relationship among the number of
shares of each Security in the Trust Fund established on
the Initial Date of Deposit (the "Original Proportionate
Relationship"), adjusted, if appropriate, to reflect (1)
the deposit of Substitute Securities pursuant to Section
3.11, (2) sale of securities pursuant to Section 3.08, 3.12
or 5.02 and (3) the occurrence of any stock dividends,
stock splits, redemptions, acquisition of shares through
dividend reinvestment plans or similar events. Each deposit
made after the 90 days following the deposit made pursuant
to this Section 3.06 hereof (except for deposits made to
replace Failed Securities if such deposits occur within 20
days from the date of a failure occurring within such
initial 90 day period) shall maintain exactly the
proportionate relationship existing among the Securities as
of the expiration of such 90 day period adjusted as
provided in the preceding sentence.
(4) On the settlement date for a subscription, the Trustee
shall, in exchange for the Securities and cash or letter of
credit described above, issue and deliver to or on the
order of the Sponsor the number of Units verified by the
Sponsor with the Trustee.
(5) Each deposit of Additional Securities, shall be listed
in a Deposit Certificate delivered to the Sponsor stating
the date of such deposit and the number of Additional Units
being issued therefor. The Trustee shall acknowledge in
such Deposit Certificate the receipt of the deposit and the
number of Additional Units issued in respect thereof. The
Additional Securities shall be held, administered and
applied by the Trustee in the same manner as herein
provided for the Securities.
(6) Additional Securities deposited or purchased with cash
or a letter of credit deposited may be purchased in round
lots, and if the amount of the deposit is insufficient to
acquire round lots of each Security to be acquired,
Additional Securities may be deposited (or acquired with
cash or a letter of credit deposited) in the order of the
Security in the Trust Fund most under-represented
immediately before the deposit with respect to the Original
Proportionate Relationship.
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(7) All instructions to purchase Additional Securities
pursuant to this Section shall be in writing and shall
direct the Trustee to perform contracts to purchase
Additional Securities which the Sponsor shall have entered
into and assigned to the Trustee.
(8) Notwithstanding the preceding, in the event that the
Sponsor's Subscription Notice shall instruct the Trustee to
purchase Additional Securities in an amount which, when
added to the purchase amount of all other unsettled
contracts entered into by the Trustee, exceeds 50% of the
value of the Securities then held (taking into account the
value of contracts to purchase Securities only to the
extent that there has been deposited with the Trustee cash
or an irrevocable letter of credit in an amount sufficient
to settle their purchase), the Sponsor shall deposit with
the Trustee concurrently with the Subscription Notice cash
or an irrevocable letter of credit in an amount such that,
when added to 50% of the value of the Securities then held
(determined as above) the aggregate value shall be not less
than the purchase amount of the securities to be purchased
pursuant to such Subscription Notice.
"(b) If Securities of an issue of Securities originally
deposited (an 'Original Issue') are unavailable or cannot be
purchased at reasonable prices or their purchase is prohibited or
restricted by law, regulation or policies applicable to the Trust
Fund or the Sponsor at the time of a subsequent deposit under
Subsection 3.06(a), in lieu of the portion of the deposit that would
otherwise be represented by those Securities, the Sponsor may (1)
deposit (or instruct the Trustee to purchase) (i) Securities of
another Original Issue or (ii) 'Replacement Securities' complying
with the conditions of paragraphs (c) and (d) of this Section, or (2)
deposit cash or a letter of credit with instructions to acquire the
Securities of the Original Issue when practicable. Any cash or letter
of credit deposited under this Subsection 3.06(b) to acquire
Securities of an Original Issue or Replacement Securities which at
the end of the 90 day period following the Date of Deposit has not
been used to purchase Securities shall be used to purchase Securities
in accordance with this Subsection 3.06(b), provided that if an
instruction to purchase an Additional Security or a Replacement
Security has not been given and such cash or letter of credit remain
in the Trust Fund after 110 days from the Date of Deposit, the amount
thereof shall be distributed, together with the attributable sales
charge, at the time and in the manner specified in Section 3.11
regarding failed contracts.
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"(c) Replacement Securities shall meet all the conditions
applicable to Substitute Securities in Section 3.11.
"(d) In addition to the requirements specified in paragraph
(c), Replacement Security must:
"(i) be publicly-traded common stock;
"(ii) be issued by an issuer subject to or
exempt from the reporting requirements under Section 13 or
15(d) of the Securities Exchange Act of 1934 (or similar
provision of law); and
"(iii) have characteristics sufficiently
similar to the characteristics of the other Securities in
the Trust Fund as to be acceptable for acquisition by the
Trust Fund.
"(e) The Sponsor may, simultaneously with the Subscription
Notice provided in Section 3.06(a), deliver to the Trustee the
Additional Securities or cash or letter of credit in the aggregate
value of the Additional Securities to be purchased pursuant to the
Sponsor's instruction, as specified in the Subscription Notice,
together with cash equal to the pro rata portion of the Trust Fund
Cash Evaluation allocable to the Additional Units to be created, all
in the amounts and in the manner provided by the preceding paragraphs
of this Section, and the Trustee shall, promptly following the
Evaluation Time on such day, deliver to the Sponsor the Additional
Units created in respect of such deposit.
"(f) Execution of a Deposit Certificate shall be deemed a
certification by the Sponsor that the purchase of the Securities
specified in such Deposit Certificate complies with the conditions
specified in this section, as applicable. The Deposit Certificate
shall be deemed to restate the representations, agreements and
certifications of the Sponsor made in Sections 6-8, inclusive, of the
Closing Memorandum for the Trust Fund to which the deposit relates as
though the representations, agreements and certifications were made
with respect to the Deposit Certificate and the deposit of Securities
with the Trustee. The Deposit Certificate shall also be deemed to
constitute, for value received, the sale, assignment and transfer to
the Trustee of all right, title and interest in and to the Additional
Securities identified in the Deposit Certificate and to irrevocably
constitute and appoint the Trustee the Sponsor's attorney in all
matters respecting such Securities with full power of substitution in
the premises. The Deposit Certificate shall include an acknowledgment
by the
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Trustee that it has delivered to the Sponsor the number of Units
specified in the Deposit Certificate. Any Additional Securities
received by the Trustee shall be deposited in the Trust Fund and
shall be subject to the terms and conditions of this Indenture to the
same extent as the securities originally deposited hereunder. Any
contract to purchase Additional Securities pursuant to this Section
3.06 that is declared by the Sponsor to have failed due to reasons
beyond the control of the Sponsor or the Trustee, shall be
immediately replaced by the Sponsor with a contract to purchase
Substitute Securities pursuant to Section 3.11.
"(g) The Trustee shall cause to be delivered to the Sponsor
within a reasonable period of time after the end of each calendar
year a certificate of the Trustee as to the Additional Securities
received by the Trustee for deposit in the Trust Fund and the number
of Units issued in exchange therefor, during the calendar year.
Within a reasonable time after receipt of such certificate, the
Sponsor shall acknowledge in writing the receipt of such certificate
and shall certify it as complete and correct or shall indicate to the
Trustee in writing any differences between the Sponsor's records of
the Securities transactions and the issuance of Units and Trustee's
certificate.
"(h) The Trustee shall have no responsibility or liability
for any loss or depreciation resulting from any purchase made
pursuant to the Sponsor's instructions and in the absence thereof
shall have no duty to purchase any securities. The Trustee shall have
no responsibility or liability for maintaining the composition of the
Trust Fund.
"(i) Cash delivered to the Trustee for purchase of
Securities pursuant to this section shall be on deposit with the
Trustee or any Custodian or sub-custodian specified in Section
8.01(a) and shall bear interest for the benefit of the Trust Fund at
the Federal Funds rate adjusted daily as reported in the New York
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Times under the caption 'Key Rates'.
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"(j) The Sponsor may direct the Trustee, with part or all
of the proceeds from the sale of Securities, to the extent not
required for redemption of Units, to purchase one or more debt
obligations for deposit in the Trust, provided that each such debt
obligation (1) is an "Eligible Security" as defined in paragraph
(a)(5) of Rule 2a-7 pursuant to the Investment Company Act of 1940 or
in the opinion of the Sponsor has comparable credit characteristics,
and (2) has a fixed final maturity date no later than the next
Distribution Day. The proceeds from the maturity of any said debt
obligation shall be distributed to Holders on said Distribution Day."
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(i) Section 3.07(b)(2) shall be deleted and replaced by the following
paragraph:
"(2) the deductions for payment of applicable
taxes and fees and expenses of the Trustee and
Sponsor and of counsel pursuant to Section 3.10,
accrued organizational expenses and Deferred
Sales Charge, if any;"
(j) Section 3.08 shall be amended to add a new paragraph (e),
immediately following paragraph (d), as follows:
"(e) that there has been a public tender offer made for a
Security or a merger or acquisition is announced affecting a
Security, and that in the opinion of the Sponsor the sale or tender
of the Security is in the best interest of the Holders."
(k) Section 3.09 shall be amended in its entirety to read as follows:
"Section 3.09. Reorganization or Similar Event. In the
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event that an offer by the issuer of any of the Securities or any
other party shall be made to issue new Securities in exchange or
substitution for any Securities, the Trustee shall reject such offer,
except that if (1) the issuer failed to declare or pay anticipated
dividends with respect to such Securities or (2) in the opinion of
the Sponsor, given in writing to the Trustee, the issuer will
probably fail to declare or pay anticipated dividends with respect to
such Securities in the reasonably foreseeable future, the Sponsor
shall instruct the Trustee in writing to accept or reject such offer
and to take any other action with respect thereto as the Sponsor may
deem proper. However, should any exchange or substitution be affected
notwithstanding such rejection or without an initial offer, any
Securities, cash and/or property received in exchange shall be
deposited hereunder and shall be sold, if securities or property, by
the Trustee pursuant to the Sponsor's direction, unless the Sponsor
advises the Trustee to retain such securities or property. The cash
then remaining shall be distributed to Holders on the next
Distribution Day not fewer than 31 days from the date the exchange
consideration was received and otherwise in the manner set forth in
Section 3.04 regarding distributions from the Capital Account. This
section shall apply, but its application shall not be limited, to
public tender offers, mergers, acquisitions, reorganizations and
recapitalization. Neither the Sponsor nor the Trustee shall be liable
to any person for action or failure to take action pursuant to the
terms of this Section 3.09."
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(l) For purposes of Section 3.11(b), the term "25%" shall be replaced
by "10%".
(m) Section 3.11(d) shall be deleted and replaced by the following
paragraph:
"(d) The Replacement Securities must be deposited into the
Trust Fund within 110 days of the date of deposit of the Failed
Contract Securities."
(n) Article THREE shall be amended to add a new Section 3.16 as
follows:
"SECTION 3.16. Foreign Exchange Transactions. The Sponsor
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shall direct the Trustee with respect to the circumstances under which foreign
exchange transactions are to be entered into and with respect to the method
whereby calculation of U.S. dollar equivalents for purpose of net asset value
computations or otherwise are to be made, in order to convert amounts receivable
in respect of Securities in foreign currencies into U.S. dollars."
(o) Article THREE shall be amended to add a new Section 3.17 as
follows:
"SECTION 3.17 Extraordinary Distributions. Any property
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received by the Trustees after May 20, 1998 in a form other than cash
or additional shares of the Securities or of a Substitute Security
received in a non-taxable stock split or stock dividend, which shall
be retained by the Trust, shall be dealt with in the manner described
in Section 3.09 and shall be retained or disposed by the Trustee
according to those provisions, provided, however, that no property
shall be retained which the Trustee determines shall adversely affect
its duties hereunder. The proceeds of any disposition shall be
credited to the Income or Capital Account of the Trust, as the
Sponsor may direct.
"The Trust is intended to be treated as a fixed investment
(i.e., grantor) trust for income tax purposes, and its powers shall be limited
in accordance with the restrictions imposed on such trusts by Treas. Reg.
Section 301.7701-4."
(p) Article THREE shall be amended to add a new Section 3.18 as
follows:
"SECTION 3.18. Deferred Sales Charge: The Trustee shall, on
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the dates specified in and as permitted by the prospectus, withdraw
from the Income Account, the Capital Account and/or distributions to
be made therefrom, as such accounts or distributions are designated
in the Prospectus as
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the source of the payments of the Deferred Sales Charge, an amount
per Unit specified in the Prospectus and credit such amount to a
special, non-Trust account maintained at the Trustee out of which the
Deferred Sales Charge will be distributed to the Sponsor. If the
balances in the Income and Capital Accounts are insufficient to make
any withdrawal designated to be made therefrom, the Trustee shall, as
directed by the Sponsor, either advance funds in an amount equal to
the proposed withdrawal and be entitled to reimbursement of such
advance upon the deposit of additional monies in the Income Account
or the Capital Account, sell Securities and credit the proceeds
thereof to such special Sponsor's account or credit Securities in
kind to such special Sponsor's Account provided, however, that the
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Trustee shall not be required to advance an aggregate amount in
excess of $15,000 pursuant to this Section. Such directions shall
identify the Securities, if any, to be sold or distributed in kind
and shall contain, if the Trustee is directed by the Sponsor to sell
a Security, instructions as to execution of such sales. If a Holder
redeems Units prior to full payment of the Deferred Sales Charge, the
Trustee shall, if so provided in the Prospectus, on the Redemption
Date, withhold from the Redemption Price payment to such Holder an
amount equal to the unpaid portion of the Deferred Sales Charge and
distribute such amount to such special Sponsor's Account or, if the
Sponsor shall purchase such Unit pursuant to the terms of Section
5.02 hereof, the Sponsor shall pay the Redemption Price for such Unit
less the unpaid portion of the Deferred Sales Charge. If the
Prospectus provides for a waiver or refund of any portion of the
Deferred Sales Charge under specified circumstances (such as, for
example, in connection with a redemption or sale of Units following
the death or disability of the Holder), the Trustee shall deduct and
pay to the Sponsor the full amount of the Deferred Sales Charge
chargeable upon the redemption in the absence of such waiver or
refund and the Sponsor shall pay to the affected Holder the amount of
such waiver or refund; the Trustee shall have no responsibility to
the affected Holder with respect to the amount to be so refunded. The
Sponsor may at any time instruct the Trustee to distribute to the
Sponsor cash or Securities previously credited to the special
Sponsor's Account."
(q) Section 5.02 shall be amended in its entirety to read as follows:
"SECTION 5.02. Redemption of Units. (a) A Holder may tender
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Units for redemption on any weekday (a "Tender Day") which is not one
of the following: New Year's Day, Martin Luther King, Jr. Day,
President's Day, Good Friday, Memorial Day (observed), Independence
Day, Labor Day, Thanksgiving Day or Christmas; provided that any
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tender received after
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the Evaluation Time or received on a day which is not a Tender Day
shall be deemed to be made as of the next succeeding Tender Day. Any
Unit tendered by a Holder or his duly authorized attorney for
redemption at the Trustee's Office (effected by tender of such
documents as the Trustee shall reasonably require and, in the case of
certificated Units, by the related Certificate) shall be redeemed and
canceled by the Trustee on the third Business Day following the
Tender Day (the "Redemption Date").
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"(b) Subject to deduction of any tax or other governmental
charges due thereon, redemption is to be made by payment of cash
equal to the Unit Value as of the Evaluation Time next following the
tender plus any Accrued Income per Unit from, and including, the day
next following such Evaluation Time to, but not including, the day of
payment to the redeeming Holder, multiplied by the number of Units
being redeemed (the "Redemption Price"). The portion of the
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Redemption Price representing the pro rata share of the cash on hand
in the Income Account and such Accrued Income shall be withdrawn from
the Income Account to the extent funds are available for such
purpose. The balance of the Redemption Price, including Accrued
Income to the extent unavailable in the Income Account, shall be
withdrawn from the Capital Account to the extent that funds are
available for such purpose; if the available balance in the Capital
Account shall be insufficient, the Trustee shall sell Securities from
among those designated for such purpose by the Sponsors on the
current list as provided in subsection (d) below, in such amounts as
shall be necessary for the purposes of such redemption; provided,
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however, that no amount in the Capital Account may be used for any
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redemption unless the Sponsor so directs in writing. Instead, Units
shall be redeemed by the Trustee's segregating on the books of the
Trust those Securities selected from among those designated on such
current list by the Sponsor for the account of the Holder (to the
extent the value thereof is equal to the Redemption Price (less any
cash distributed from the Income and Capital Accounts as directed by
the Sponsor)). The Trustee shall sell the Securities, any portion of
which have been segregated as provided below, or collect the
redemption proceeds thereof and distribute such sale or redemption
proceeds (1) to the Holder, to the extent described in the
immediately preceding sentence, and (2) to the Capital Account, to
the extent of any balance of the sale or redemption proceeds;
provided that if the Sponsor contemplates any further deposit of
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Additional Securities into the Trust in accordance with Section 3.06,
the Securities to be segregated shall be selected by the Sponsor so
as to maintain, to the extent practicable, the proportionate
relationship among the number of shares of each Security then
existing. In the event that funds are
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withdrawn from the Capital Account or Securities are sold for payment
of any portion of the Redemption Price representing Accrued Income,
the Capital Account shall be reimbursed when sufficient funds are
available in the Income Account. As used in this Section 5.02,
"Accrued Income" shall mean net accrued but unpaid interest on
Securities or interest earned on Funds deposited for purchase of
Securities as provided in Section 3.06(i) and with respect to Common
Stocks and Preferred Stocks, net dividends declared but unpaid but,
except as otherwise instructed by the Sponsors, only for the period
commencing three Business Days prior to the record date therefor and
ending on the date received by the Trustee.
"(c) If the Prospectus for the Trust provides for in-kind
redemption, a Holder who satisfies any requirements specified in such
Prospectus for in-kind redemption may, in lieu of redeeming Units in
the manner provided in subsection (b) above, redeem Units and request
that a distribution in kind be made by the Trustee to the
Distribution Agent of (1) Securities (the "Securities Distribution")
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equal to the fractional undivided interest represented by each Unit
in all Securities in the Trust to the extent of the Unit Value of the
Units redeemed plus (2) an amount in cash (the "Cash Distribution")
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equal to the Unit Value less the value of the Securities
Distribution, determined as of the Evaluation Time next following the
tender, multiplied by the number of Units being redeemed (such
Securities Distribution and Cash Distribution in the aggregate being
referred to herein as the "Redemption Distribution"). In making a
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Cash Distribution to the Distribution Agent the Trustee shall
withdraw the Holder's pro rata share of the cash in the Income
Account and Capital Account from such accounts to the extent that
funds are available for such purpose.
"Upon receipt of a Redemption Distribution the Distribution
Agent shall hold such distribution for the account of the tendering
Holder. Securities shall be held in the name of the Distribution
Agent or its nominee and cash shall be held in a non-interest bearing
account. Upon receipt of proper instructions from the tendering
Holder, the Distribution Agent shall deliver the Redemption
Distribution pursuant to such directions (except that if any
securities received are available only in book entry form, unless the
tendering Holder designates an agent to hold such securities in its
name which agent is, or clears through, a member of the depository
for those securities, the Distribution Agent shall sell those
securities and distribute the cash proceeds, net of transaction
costs, if any) as soon as practical, as directed by such tendering
Holder upon payment of such reasonable fees set by the Trustee or the
Distribution Agent to cover the cost of
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delivery, including costs for shipping, handling and insurance.
"Notwithstanding anything herein to the contrary, in the
event that any such tender of Units pursuant to this Section 5.02(c)
would result in the disposition, by the Trustee or the Distribution
Agent, of less than a whole Security, the Trustee or Distribution
Agent shall distribute cash in lieu thereof and sell such Securities
as directed by the Sponsor as required to make such cash available.
"(d) From time to time or at the request of the Trustee,
the Sponsor shall deliver to the Trustee and maintain a current list
of Securities to be sold upon the redemption of Units. Once Units
have been tendered for redemption, the Sponsor shall designate which
of such Securities are to be sold. In connection therewith, the
Sponsor may specify the minimum number of shares of any Securities to
be sold at any one time and the date and manner in which such sale is
to be made by the Trustee. If the Sponsor fails to deliver such a
list or designate Securities to be sold, the Trustee, in its sole
discretion, may, or may hire an agent to, establish a current list of
Securities for such purposes and designate which Securities are to be
sold. In connection with any sale of Securities pursuant to this
Section 5.02, the Sponsor shall furnish the Trustee with any
documents necessary for the transfer of such Securities or compliance
with transfer restrictions, if any, on such Securities.
"(e) The Trustee shall, when selling Securities, use its
reasonable best efforts to secure the best price obtainable for the
Trust taking into account any minimum number of shares or value
limitations on sales that have been specified by the Sponsor. The
Trustee shall place orders with brokers (which may include the
Sponsor and its affiliates) or dealers with which it may reasonably
expect to obtain the most favorable price and execution of orders.
"In the event that it is necessary to sell any Securities
other than by the above means, and if the Sponsor shall so direct in
writing accompanied by any documents necessary to transfer such
Securities or to comply with transfer restrictions, if any, on such
Security, the Trustee shall transfer any such Securities to a
participation trust with a trustee selected by the Sponsor (which may
include the Trustee, but the Trustee shall have no obligation to act
as such and may receive additional compensation for so acting) to be
governed by a trust indenture in exchange for certificates of
participation in such trust and shall then sell such certificates of
participation in the manner directed by the Sponsor. The Trustee
shall be entitled to
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receive such written notice and may act in reliance thereon. In the
event that the moneys received upon the sale of such certificates
exceeds the amount needed to pay the Redemption Price, the Trustee
shall credit such excess to the Capital Account or the Income
Account, as appropriate, in proportion to the amounts that represent
the principal and accrued interest on the Security transferred to
such participation trust. Sales of certificates of participation in
any such trust by the Trustee shall be made in such manner as the
Sponsor shall determine should realize the best price for the Trust.
"In the event that funds are withdrawn from the Capital
Account or Securities are sold for payment of any portion of the
Redemption Price representing Accrued Income, the Capital Account
shall be reimbursed when sufficient funds are available in the Income
Account.
"(f) The Trustee may, in its discretion, and shall when so
directed by the Sponsor in writing, suspend the right of redemption
or postpone the date of payment of the Redemption Price beyond the
Redemption Date (1) for any period during which the New York Stock
Exchange is closed other than customary weekend and holiday closings;
(2) for any period during which (as determined by the Securities and
Exchange Commission by rule, regulation or order) (A) trading on the
New York Stock Exchange is restricted or (B) an emergency exists as a
result of which disposal by the Trust of Securities is not reasonably
practicable or it is not reasonably practicable fairly to determine
the Trust Value; or (3) for such other periods as the Securities and
Exchange Commission may by order permit. Subject to Section 22 of the
Investment Company Act, the right of redemption shall terminate upon
the earlier of the Termination Date or the giving of notice of
termination to Holders by the Trustee pursuant to Section 9.01.
"(g) Not later than the close of business on the day of
tender of a Unit for redemption by a Holder other than the Sponsor,
the Trustee shall notify the Sponsors of such tender. The Sponsor
shall have the right to purchase such Unit by notifying the Trustee
of its election to make such purchase as soon as practicable
thereafter but in no event subsequent to (1) the close of business on
the second Business Day after the day on which such Unit was tendered
for redemption or (2) in the case of a tender for redemption by
check, the Redemption Date. Such purchase shall be made by payment
for such Unit by the Sponsor (1) to the Trustee on behalf of the
Holder in the case of a tender for redemption other than by check,
and (2) to the Trustee in the case of a tender for redemption by
check, in either case not later than the close of business on the
Redemption Date
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of an amount not less than the Redemption Price which would otherwise
be payable by the Trustee to such Holder. So long as the Sponsor is
maintaining a bid in the secondary market at no less than the
Redemption Price, the Sponsor will repurchase any Unit so tendered to
the Trustee for redemption. Any Unit purchased by the Sponsor from
the Trustee may at the option of the Sponsor be tendered to the
Trustee for redemption in the manner provided in subsection (a) of
this Section 5.02. The Trustee is hereby irrevocably authorized in
its discretion, but without obligation, in the event that the Sponsor
does not elect to purchase any Unit tendered to the Trustee for
redemption, or in the event that a Unit is being tendered by the
Sponsor for redemption, in lieu of redeeming such Unit, to sell such
Unit in the over-the-counter market for the account of the tendering
Holder at a price which will return to the Holder an amount in cash,
net after deducting brokerage commissions, transfer taxes and other
charges, equal to or in excess of the Redemption Price which such
Holder would otherwise be entitled to receive on redemption pursuant
to this Section 5.02. The Trustee shall pay to the Holder the net
proceeds of any such sale no later than the day the Holder would
otherwise be entitled to receive payment of the Redemption Price
hereunder.
"(h) Neither the Sponsors, the Trustee nor any Distribution
Agent shall be liable or responsible in any way for depreciation or
loss incurred by reason of any sale of Securities made pursuant to
this Section 5.02."
(r) Section 4.01 shall be amended to read in its entirety as follows:
"Section 4.01 Evaluation of Securities. The Trustee shall
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determine separately and promptly furnish to the Sponsor upon request
the value of each issue of Securities as of the Evaluation Time on
the basis set forth in this Section on the days on which the Trust
Fund Evaluation is required by Section 5.01. If the Securities are
listed on a national or foreign securities exchange or NASDAQ
National Market System, the evaluation shall be determined on the
basis of the last reported sales price on the exchange, if any, where
the Securities are principally traded (unless the Trustee deems such
price inappropriate as a basis for valuation) or, if there is no sale
price on such exchange, at the mean between the closing bid and
offering prices. If the Securities are not so listed or, if so listed
but the principal market therefor is not on any such exchange, the
evaluation shall be based on the last reported sale prices on the
over-the-counter market (unless the Trustee deems such prices
inappropriate as a basis for valuations) or, if no such sale prices
are available, (1) on the basis of the
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mean between current bid and offering prices for the Securities, (2)
if bid and offering prices are not available for any Securities, on
the basis of the mean between current bid and offering prices for
comparable securities, (3) by determining the value of the Securities
at the mean between the bid and offering sides of the market by
appraisal or (4) by any combination of the above. The Trustee may
obtain current bid and offering prices for the Securities from
investment dealers or brokers (including the Sponsor) that
customarily deal in similar securities or from any other reporting
service or source of information which the Trustee deems appropriate.
With respect to any Security which is not listed on a national
exchange, the Sponsor and the Trustee shall, from time to time,
designate one or more reporting services or other sources of
information on which the Trustee shall be authorized to rely in
evaluating such Security, and the Trustee shall have no liability for
any errors contained in the information so received. The cost thereof
shall be an expense reimbursable to the Trustee from the Income and
Capital Accounts.
"For each evaluation, the Trustee shall also determine and
furnish to the Sponsor the aggregate of (a) the value of all
Securities on the basis of such evaluation and (b) cash on hand in
the Trust Fund (other than cash held specially for the purpose of
Contract Securities).
"Until the Sponsor notifies the Trustee that there will be
no further deposits of Additional Securities, in making the
evaluations specified in this Section 4.01 and in Section 5.01, the
Trustee shall value purchase contracts as the Securities to be
acquired thereunder, and sale contracts as the proceeds thereof (with
corresponding deductions from cash and number of shares of
Securities, respectively), as of the day on which such contracts are
entered into. Following such notification, in making the evaluations
specified in this Section 4.01 and in Section 5.01, the Trustee shall
value all contracts for purchase or sale of Securities as Securities
or cash, respectively (with corresponding deductions from cash or
number of shares), as of the first business day following the day on
which contracts are entered into."
(s) Section 5.01(a) shall be amended to read as follows:
"(a) As of the Evaluation Time (x) on each December 31 and
June 30 (or the last Business Day prior thereto) commencing with the
first such day which is more than six months after the date of the
Reference Trust Indenture, (y) on any business day as of the
Evaluation Time next following the tender of any Unit for redemption,
and (z) on any other
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Business Day desired by it or requested by the Sponsor, the Trustee
shall:
"(1) Add
"(A) cash on hand in the Trust Fund,
other than cash held specially for the purchase
of Contract Securities,
"(B) the aggregate value of each issue
of Securities other than Contract Securities,
and
"(C) any interest and dividends receivable
on stocks trading ex dividend, and
"(D) amounts representing organizational
expenses paid from the Trust less amounts
representing accrued organizational expenses of
the Trust, plus
"(E) all other assets of the Trust; and
"(2) Deduct
"(A) amounts representing any applicable
taxes or governmental charges payable out of the
Trust Fund and for which no deductions shall have
previously been made for the purpose of addition
to the Reserve Account,
"(B) 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 Sponsor and of counsel
pursuant to Section 3.10, and
"(C) cash allocated for distribution
to Holders of record, or redemption of Units, as
of a date prior to the evaluation then being
made.
"The resulting figure is herein called a 'Trust Fund
Evaluation'. Until the Sponsor has informed the Trustee that there
will be no further deposits of Additional Securities pursuant to
Section 3.06, the Sponsor shall provide the Trustee estimates of (i)
the total organizational expenses to be borne by the Trust pursuant
to Section 10.02, (ii) the total number of Units to be issued in
connection with the initial deposit and all anticipated deposits of
Additional Securities and (iii) the period or periods over which such
expenses are to be amortized, separately stated with respect to each
such amortization
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period. For purposes of calculating the Trust Fund Evaluation and
Unit Value, the Trustee shall treat all such anticipated expenses as
having been paid and all liabilities therefor as having been
incurred, and all units as having been issued, respectively, on the
date of the Reference Trust Agreement, and, in connection with each
such calculation, shall take into account a pro rata portion of such
expenses (and of any liability for advances made by the Trustee for
the payment thereof) based on the actual number of Units issued as of
the date of such calculation. In the event the Trustee is informed by
the Sponsor of a revision in its estimate of total expenses, total
Units or period of amortization, and upon the conclusion of the
deposit of Additional Securities or initial offering period, the
Trustee shall base calculations made thereafter on such revised
estimates or actual expenses or period or amortization, respectively,
but such adjustment shall not affect calculations made prior thereto
and no adjustment shall be made in respect thereof."
(t) Section 5.03 and all references thereto are deleted.
(u) For purposes of Section 7.03 the amount per year as compensation
for the Sponsor is hereby specified as the amount set forth under Investment
Summary in the Prospectus as Sponsor's Annual Fee.
(v) Section 8.01(b) shall be amended by adding the
following to the clause ending prior to the proviso beginning in
the seventh line:
"or in respect of any evaluation which it is required to
make, or required or permitted to have made by others under this
Indenture, or otherwise."
(w) Section 8.01 shall also be amended as follows:
In paragraph (e), the word "sub-custodians" shall be inserted
following the word "attorneys" each time it appears and the following
sentence is added at the end of such paragraph:
"The Trustee is specifically authorized to employ Citibank, N.A.,
as a sub-custodian of the Trustee with respect to any
non-U.S. Securities held in the Trust Fund."
Paragraph (g)(2) shall be amended to read as follows:
"(2) The liquidation amount referred to in clause (1) shall
be (i) $500,000 unless and until deposits to the Trust Fund exceed
$50,000,000 in asset value, and (ii) thereafter $20,000,000."
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(x) Section 8.01 shall be amended to add new paragraphs (j), (k) and
(l) as follows:
"(j) All provisions of paragraphs (b), (c), (d), (e) and
(h) of this Section 8.01 shall be deemed to apply to the Distribution
Agent as fully and to the same extent as the Trustee.
"(k) The Trustee in its individual or any other capacity
may become owner or pledgee or, or be an underwriter or dealer in
respect of, stock, bonds or other obligations issued by the same
issuer (or affiliate of such issuer) or any obligor of any Securities
at any time held as part of the Trust and may deal in any manner with
the same or with the issuer (or an affiliate of the issuer) with the
same rights and powers as if it were not the Trustee hereunder.
"(l) The Trust may include a letter or letters of credit
for the purchase of Contract Securities issued by the Trustee in its
individual capacity for the account of the Sponsor, and the Trustee
may otherwise deal with the Sponsor with the same rights and powers
as if it were not the Trustee hereunder."
(y) Section 8.05(d) shall be amended to add the following sentence in
lieu of that added at the conclusion of such paragraph by the Amendment dated
June 27, 1994:
The provisions of this paragraph shall be deemed to apply
to the Distribution Agent in respect of any loss, liability or
expense arising out of or in connection with such Agent's actions
hereunder to the same extent as such provisions apply to the Trustee
with respect to its acceptance and administration of the Trust.
(z) For purposes of Section 8.05, the amount per year specified as
compensation for the Trustee is hereby specified as the amount set forth under
Investment Summary in the Prospectus as Trustee's Annual Fee.
(aa) For purposes of Section 9.01, the Termination Date shall be the
dates specified in the Prospectus under Mandatory Termination of Trust in the
Investment Summary.
(bb) Section 10.02 shall be amended to read as follows:
"Section 10.02. Initial Cost. To the extent not borne by
------------
the Sponsor, the expenses incurred in establishing a Trust, including
the cost of the initial preparation and typesetting of the
registration statement, prospectuses (including preliminary
prospectuses), the indenture, and
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other documents relating to a Trust, SEC and state blue sky
registration fees, the costs of the initial valuation of the
portfolio and audit of a 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, shall be borne by the Trust. Such
expenses shall be paid from the Income Account or, to the extent
funds are not available in such Account, from the Capital Account. To
the extent the funds in the Income and Capital Accounts of the Trust
shall be insufficient to pay the expenses borne by the Trust
specified in this Section 10.02, the Trustee shall advance out of its
own funds and cause to be deposited and credited to the Income
Account such amount as may be required to permit payment of such
expenses. The Trustee shall be reimbursed for such advance on each
Record Date from funds on hand in the Income Account or, to the
extent funds are not available in such Account, from the Capital
Account in the amount deemed to have accrued as of such Record Date
as provided in the following sentence (less prior payments on account
of such advances, if any), and the provisions of Section 8.04 with
respect to the reimbursement of disbursements for Trust expenses,
including, without limitation, the lien in favor of the Trustee
therefor and the authority to sell Securities as needed to fund such
reimbursement, shall apply to the expenses paid and amounts advanced
pursuant to this Section. For the purposes of the preceding sentence
and the addition provided in clause (1)(D) of Section 5.01, the
expenses borne by the Trust pursuant to this Section shall be deemed
to have been paid on the date of the Reference Trust Agreement and to
accrue at a daily rate over the time period specified for their
amortization by the Sponsor pursuant to Section 5.01; provided,
--------
however, that nothing herein shall be deemed to prevent, and the
Trustee shall be entitled to, full reimbursement for any advances
made pursuant to this Section no later than the termination of the
Trust. For purposes of this Section 10.02, the Trustee may rely on
the written estimates of such expenses provided by the Sponsor
pursuant to Section 5.01."
This Indenture shall be deemed effective when executed and delivered
by the Sponsor and the Trustee.
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