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VOYAGEUR EQUITY TRUST, SERIES 1
and certain subsequent Series
STANDARD TERMS AND CONDITIONS OF TRUST
DATED: January 3, 1996
BETWEEN
VOYAGEUR FUND MANAGERS, INC.
Depositor
AND
INVESTORS FIDUCIARY TRUST COMPANY
Trustee
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VOYAGEUR EQUITY TRUST
STANDARD TERMS AND CONDITIONS OF TRUST
for Series for which Investors Fiduciary Trust Company
may act as Trustee
EFFECTIVE
January 3, 1996
INDEX
ARTICLE I DEFINITIONS...........................................................................................1
Agreement.................................................................................................................1
Business Day..............................................................................................................2
Capital Account...........................................................................................................2
Capital Distribution Date.................................................................................................2
Certificate...............................................................................................................2
Contract Securities.......................................................................................................5
Deferred Sales Charge.....................................................................................................5
Depositor.................................................................................................................5
Distribution Agent........................................................................................................5
Evaluation Time...........................................................................................................5
Evaluator.................................................................................................................5
Fund......................................................................................................................5
In Kind Distribution......................................................................................................5
Income Account............................................................................................................5
Income Distribution.......................................................................................................6
Income Distribution Date..................................................................................................6
Initial Date of Deposit...................................................................................................6
Mandatory Termination Date................................................................................................6
Program Agent.............................................................................................................6
Record Date...............................................................................................................6
Redemption Date...........................................................................................................6
Redemption Price..........................................................................................................6
Reserve Account...........................................................................................................6
Rollover Distribution.....................................................................................................7
Rollover Notification Date................................................................................................7
Rollover Unitholder.......................................................................................................7
Securities................................................................................................................7
Special Redemption Period.................................................................................................7
Supplement Trust Agreement................................................................................................7
Trust Agreement...........................................................................................................7
Trust Fund or Trust.......................................................................................................7
Trust Fund Evaluation.....................................................................................................8
Trustee...................................................................................................................8
Unit......................................................................................................................8
Unitholder................................................................................................................8
Unit Value................................................................................................................8
ARTICLE II DEPOSIT OF SECURITIES, ACCEPTANCE OF TRUST, ISSUANCE OF UNITS; FORM OF
CERTIFICATES..........................................................................................8
Section 2.01. Deposit of Securities.............................................................................8
Section 2.02. Acceptance of Trust..............................................................................10
Section 2.03. Issuance of Units................................................................................10
Section 2.04. Form of Certificates.............................................................................11
ARTICLE III ADMINISTRATION OF FUND...............................................................................11
Section 3.01. Certain Moneys to be Credited to Income Account..................................................11
Section 3.02. Certain Moneys to be Credited to Capital Account.................................................11
Section 3.03. Establishment of Reserve Account.................................................................12
Section 3.04. Certain Deductions and Distributions.............................................................12
Section 3.05. Statements and Reports...........................................................................15
Section 3.06. Extraordinary Sale of Securities.................................................................16
Section 3.07. Counsel..........................................................................................17
Section 3.08. Action by Trustee Regarding Securities...........................................................17
Section 3.09. Notice of Change in Capital Account..............................................................18
Section 3.10. Limited Replacement of Special Securities........................................................18
Section 3.11. Compensation of Depositor for Supervisory Services...............................................19
Section 3.12. Deferred Sales Charge............................................................................20
ARTICLE IV EVALUATION OF SECURITIES; THE EVALUATOR..............................................................20
Section 4.01. Evaluation of Securities.........................................................................20
Section 4.02. Certain Information to Be Made Available.........................................................21
Section 4.03. Compensation of the Evaluator....................................................................21
Section 4.04. Liability of the Evaluator.......................................................................22
Section 4.05. Resignation, Removal and Other Matters Relating to the Evaluator.................................22
ARTICLE V TRUST FUND EVALUATION; REDEMPTION OF UNITS...........................................................23
Section 5.01. Trust Fund Evaluation............................................................................23
Section 5.02. Redemption of Units; Sale of Securities..........................................................23
Section 5.03. Rollover of Units................................................................................25
ARTICLE VI ISSUANCE, TRANSFER, INTERCHANGE AND REPLACEMENT OF CERTIFICATES......................................27
Section 6.01. Issuance of Certificates.........................................................................27
Section 6.02. Transfer of Units; Interchange of Certificates...................................................27
Section 6.03. Replacement of Certificates......................................................................28
Section 6.04. Form of Certificate..............................................................................28
ARTICLE VII DEPOSITOR............................................................................................29
Section 7.01. Certain Matters Regarding Succession.............................................................29
Section 7.02. Liability of Depositor and Indemnification.......................................................29
ARTICLE VIII TRUSTEE..............................................................................................30
Section 8.01. General Matters Relating to the Trustee..........................................................30
Section 8.02. Books, Records and Reports.......................................................................32
Section 8.03. Reports to Securities and Exchange Commission and Others.........................................32
Section 8.04. Agreement and List of Securities on File.........................................................32
Section 8.05. Compensation of Trustee..........................................................................32
Section 8.06. Resignation, Discharge or Removal of the Trustee; Successors.....................................33
Section 8.07. Qualification of Trustee.........................................................................35
Section 8.08. Collateral.......................................................................................35
ARTICLE IX TERMINATION..........................................................................................35
Section 9.01. Procedure Upon Termination.......................................................................35
Section 9.02. Notice to Unitholders............................................................................36
Section 9.03. Moneys to be Held in Trust Without Interest......................................................37
Section 9.04. Dissolution of Depositor Not to Terminate........................................................37
ARTICLE X MISCELLANEOUS PROVISIONS.............................................................................37
Section 10.01. Amendment and Waiver.............................................................................37
Section 10.02. Initial Costs....................................................................................38
Section 10.03. Registration (Initial and Current) of Units and Fund.............................................38
Section 10.04. Certain Matters Relating to Unitholders..........................................................38
Section 10.05. Missouri Law to Govern...........................................................................39
Section 10.06. Notices..........................................................................................39
Section 10.07. Severability.....................................................................................39
Section 10.08. Separate and Distinct Series.....................................................................39
Execution.......................................................................................................................40
VOYAGEUR EQUITY TRUST
STANDARD TERMS AND CONDITIONS OF TRUST
for Series for which Investors Fiduciary Trust Company
may act as Trustee
EFFECTIVE January 3, 1996
These Standard Terms and Conditions of Trust, Effective January 3, 1996,
are executed between Voyageur Fund Managers, Inc., as Depositor, and Investors
Fiduciary Trust Company, as Trustee.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
INTRODUCTION
These Standard Terms and Conditions of Trust shall be applicable to each
Series created on or subsequent to the date hereof of Voyageur Equity Trust for
which Investors Fiduciary Trust Company acts as Trustee as provided in this
paragraph. For each such series of Voyageur Equity Trust to which these Standard
Terms and Conditions of Trust are to be applicable, the Depositor and the
Trustee shall execute a Trust Agreement incorporating by reference these
Standard Terms and Conditions of Trust and designating any exclusion from or
exception to such incorporation by reference for the purposes of that series or
variation of the terms hereof for the purposes of that series and specifying for
that series (i) the name of each Trust Fund and (ii) the Securities deposited in
trust for each Trust Fund.
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
AGREEMENT
These Standard Terms and Conditions of Trust and all amendments and
supplements hereto and thereto.
BUSINESS DAY
Any day other than a Saturday, Sunday or a day on which the New York Stock
Exchange is closed.
CAPITAL ACCOUNT
The account created pursuant to Section 3.02.
CAPITAL DISTRIBUTION DATE
The meaning assigned to it in the Prospectus for each respective Trust
under the caption "Income and Capital Account Distribution Dates" appearing in
the "Summary of Essential Financial Information."
CERTIFICATE
Any one of the Certificates manually executed by the Trustee in
substantially the following form with the blanks appropriately filled in:
FACE OF CERTIFICATE
NUMBER VOYAGEUR EQUITY TRUST UNITS
CERTIFICATE OF BENEFICIAL OWNERSHIP
THIS CERTIFIES THAT _____________ is the registered owner of Unit(s)_____
of fractional undivided interest in Voyageur Equity Trust of the above Series
(herein referred to as the "TRUST") created under the laws of the State of
Missouri pursuant to the Agreement and the related Trust Agreement, a copy of
which is available at the office of the Trustee. This Certificate is issued
under and is subject to the terms, provisions and conditions of the aforesaid
Agreement and the related Trust Agreement to which the holder of this
Certificate by virtue of the acceptance hereof assents and is bound. This
Certificate is transferable and interchangeable by the registered owner in
person or by his duly authorized attorney at the office of the Trustee upon
surrender of this Certificate properly endorsed or accompanied by a written
instrument of transfer and any other documents that the Trustee may require for
transfer, in form satisfactory to the Trustee, and payment of the fees and
expenses provided in the Indenture.
WITNESS the facsimile signature of the Depositor and the manual
signature of an authorized signatory of the Trustee.
Dated:
VOYAGEUR FUND MANAGERS, INC., INVESTORS FIDUCIARY TRUST COMPANY,
Depositor Trustee,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By___________________________ By_________________________________
Authorized Signature Authorized Signature
REVERSE OF CERTIFICATE
FORM OF ASSIGNMENT
FOR VALUE RECEIVED
hereby sells, assigns and transfers
unto
-------------------------
-------------------------
Please Insert Social Security or Other
Identifying Number of Assignee
-------------------------
-------------------------
the within Certificate and does hereby irrevocably constitute and appoint
_______________, attorney, to transfer the within Certificate on the books of
the Trustee, with full power of substitution in the premises.
Dated: _________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the Certificate in every particular,
without alteration or enlargement or any change whatever, and must be
guaranteed by a participant in the Securities Transfer Agents
Medallion Program ("STAMP") or such other signature guarantee program
in addition to, or in substitution for, STAMP, as may be accepted by
the Trustee.
Signature Guaranteed
By_______________________
CONTRACT SECURITIES
The Securities listed in Schedule A of the Trust Agreement which are to be
acquired by any Trust Fund pursuant to a contract or contracts for the purchase
of such securities which have been assigned to the Trustee along with the
amounts required for their purchase which have been delivered to the Trustee or
Securities which the Depositor has contracted to purchase for any Trust Fund
pursuant to Section 3.10 hereof.
DEFERRED SALES CHARGE
The meaning assigned to it in Section 3.12.
DEPOSITOR
Voyageur Fund Managers, Inc. or its successors or any successor Depositor
appointed as herein provided.
DISTRIBUTION AGENT
Investors Fiduciary Trust Company acting in its capacity as distribution
agent pursuant to Section 5.03.
EVALUATION TIME
That time stated in the Prospectus for each respective Trust Fund under the
caption "Evaluation Time" appearing in the "Summary of Essential Financial
Information."
EVALUATOR
Voyageur Fund Managers, Inc. or its successors or any successor Evaluator
appointed as herein provided.
FUND
All Trust Funds outstanding under this Agreement.
IN KIND DISTRIBUTION
The meaning assigned to it in Section 5.02.
INCOME ACCOUNT
The account created pursuant to Section 3.01.
INCOME DISTRIBUTION
The meaning assigned to it in Section 3.04.
INCOME DISTRIBUTION DATE
The meaning assigned to it in the Prospectus for each respective Trust Fund
under the caption "Income and Capital Account Distribution Dates" appearing in
the "Summary of Essential Financial Information."
INITIAL DATE OF DEPOSIT
The meaning assigned to it in the Prospectus for each respective Trust Fund
under the caption "Initial Date of Deposit" appearing in the "Summary of
Essential Financial Information."
MANDATORY TERMINATION DATE
The meaning assigned to it in the Prospectus for each respective Trust Fund
under the caption "Mandatory Termination Date" appearing in the "Summary of
Essential Financial Information."
PROGRAM AGENT
Program Agent shall mean Investors Fiduciary Trust Company or its
successors, unless a different Program Agent shall be designated by the Trust
Agreement for a particular Trust Fund.
RECORD DATE
The meaning assigned to it in the Prospectus for each respective Trust Fund
under the caption "Income and Capital Account Record Dates" appearing in the
"Summary of Essential Financial Information."
REDEMPTION DATE
The meaning assigned to it in Section 5.02.
REDEMPTION PRICE
The meaning assigned to it in Section 5.02.
RESERVE ACCOUNT
The account created pursuant to Section 3.03.
ROLLOVER DISTRIBUTION
The meaning assigned to it in Section 5.03.
ROLLOVER NOTIFICATION DATE
The meaning assigned to it in the Prospectus for each respective Trust Fund
under the caption "Rollover Notification Date" appearing in the "Summary of
Essential Financial Information."
ROLLOVER UNITHOLDER
The meaning assigned to it in Section 5.03.
SECURITIES
The equity securities, including Contract Securities listed in Schedule A
to the Trust Agreement or other securities deposited in the Trust Fund pursuant
to Section 2.01(b) and any obligations received in exchange or substitution for
such securities pursuant to Sections 3.08 or 3.10 hereof, as may from time to
time continue to be held as a part of any Trust Fund.
SPECIAL REDEMPTION PERIOD
The meaning assigned to it in the Prospectus for each respective Trust Fund
under the caption "Special Redemption Period" appearing in the "Summary of
Essential Financial Information."
SUPPLEMENT TRUST AGREEMENT
Shall mean an amendment or supplement to the Trust Agreement executed
pursuant to Section 2.01(b) for the purpose of depositing additional Securities
in the Trust Fund and issuing additional Units.
TRUST AGREEMENT
The Trust Agreement for the particular series of Voyageur Equity Trust into
which these Standard Terms and Conditions of Trust are incorporated.
TRUST FUND OR TRUST
Any one of the separate trusts created by this Agreement and a Trust
Agreement which shall consist of the Securities and all undistributed dividends
or other amounts received thereon and any undistributed cash held in the Capital
and Income Accounts or otherwise realized from the sale, liquidation or exchange
thereof, exclusive of any amounts which may be on deposit in the Reserve
Account.
TRUST FUND EVALUATION
The meaning assigned to it in Section 5.01.
TRUSTEE
Investors Fiduciary Trust Company or its successors or any successor
Trustee appointed as herein provided.
UNIT
The fractional undivided interest in and ownership of an individual Trust
Fund equal initially to the fraction specified in the Prospectus for each
respective Trust Fund under the caption "Fractional Undivided Interest in the
Trust per Unit" appearing in the "Summary of Essential Financial Information,"
the denominator of which fraction shall be (1) increased by the number of any
additional Units issued pursuant to Section 2.03 hereof and (2) decreased by the
number of any such Units redeemed as provided in Section 5.02. Whenever
reference is made herein to the "interest" of a Unitholder in the Trust Fund or
in the Income or Capital Accounts, it shall mean such fractional undivided
interest represented by the number of Units, whether or not evidenced by a
Certificate or Certificates, held of record by such Unitholder in such Trust
Fund.
UNITHOLDER
The holder of any Unit as recorded on the books of the Trustee, his legal
representatives and heirs and the successors of any corporation, partnership or
other legal entity which is a holder of any Unit.
UNIT VALUE
The value of the fractional undivided interest in and ownership of any
individual Trust Fund represented by each Unit as determined by a Trust Fund
Evaluation.
Words importing a singular number shall include the plural number in each
case and vice versa, except as the context herein may clearly indicate otherwise
and words importing persons shall include corporations, partnerships and
associations, as well as natural persons. The words "herein", "hereby",
"herewith", "heretofore", and other singular words or phrases or references and
associations shall refer to the Agreement in its entirety.
ARTICLE II
DEPOSIT OF SECURITIES, ACCEPTANCE OF TRUST, ISSUANCE OF UNITS;
FORM OF CERTIFICATES
SECTION 2.01. DEPOSIT OF SECURITIES. (a) The Depositor, concurrently with
the execution and delivery hereof, hereby grants and conveys all of its right,
title and interest in and to and hereby conveys to and deposits with the Trustee
in an irrevocable Trust the Securities and confirmations of contracts to
purchase Securities, including Contract Securities, listed in Schedule A to the
Trust Agreement duly endorsed in blank or accompanied by all necessary
instruments of assignment and transfer in proper form, to be held, managed and
applied by the Trustee as herein provided for the benefit of each Unitholder to
the extent of such Unitholder's interest in the Trust Fund. The Depositor hereby
also delivers to the Trustee a certified check or checks, cash or cash
equivalents or an irrevocable letter or letters of credit issued by a commercial
bank or banks in an amount necessary to consummate the purchase of any
Securities or Contract Securities. In the event any Securities have not been
delivered to the Trustee on or before the close of business of the Trustee on
the day before the date of expiration of any letter or letters of credit, the
Trustee is hereby directed to draw on such letter or letters of credit unless
the Depositor has either extended or replaced such letter or letters on or
before such close of business.
(b) From time to time following the Initial Date of Deposit for a Trust,
the Depositor is hereby authorized, in its discretion, to assign, convey to and
deposit with the Trustee additional Securities for such Trust, duly endorsed in
blank or accompanied by all necessary instruments of assignment and transfer in
proper form (or Contract Securities), to be held, managed and applied by the
Trustee as herein provided. In lieu of additional Securities or Contract
Securities, the Depositor may deposit with the Trustee cash (or a letter of
credit) in an amount equal to the valuation made in accordance with Section 4.01
for the date of such deposit of the additional Securities not delivered or
represented by Contract Securities together with instructions to purchase such
additional Securities containing such information as the Trustee may require to
settle said transactions. Each deposit of additional Securities shall be made
pursuant to an executed Supplemental Trust Agreement. The Depositor in each case
shall ensure that each deposit of additional Securities pursuant to this Section
shall be, as nearly as is practicable, equal to the original percentage
relationship among the number of shares of each Security as is specified in the
Prospectus for such Trust Fund. The Depositor shall obtain an opinion of counsel
satisfactory to the Depositor as to the validity of each deposit of additional
Securities. Any brokerage fees related to the purchase of Securities deposited
in the Trust Fund after the Initial Date of Deposit shall be an expense of such
Trust Fund. The Depositor shall deliver the additional Securities which were not
delivered concurrently with the deposit of additional Securities and which were
represented by Contract Obligations within 10 calendar days after such deposit
of additional Securities (the "ADDITIONAL SECURITIES DELIVERY PERIOD"). If a
contract to buy such Securities between the Depositor and seller is terminated
by the seller thereof for any reason beyond the control of the Depositor or if
for any other reason such Securities are not delivered to the Trust by the end
of the Additional Securities Delivery Period for such deposit, the Trustee shall
immediately draw on the Letter of Credit, if any amounts, in sufficient to
settle such contract apply the monies in accordance with Section 2.01(d), and
the Depositor shall forthwith take the remedial action specified in Section
3.10. If the Depositor does not take the action specified in Section 3.10 within
10 calendar days of the end of the Additional Securities Delivery Period, the
Trustee shall forthwith take the action specified in Section 3.10.
(c) In connection with the deposits described in Section 2.01(a) and (b),
the Depositor has, in the case of Section 2.01(a) deposits, and, prior to the
Trustee accepting a Section 2.01(b) deposit, will, deposit cash and/or Letter(s)
of Credit in an amount sufficient to purchase the Contract Obligations (the
"PURCHASE AMOUNT") relating to Securities which are not actually delivered to
the Trustee at the time of such deposit, the terms of which unconditionally
allow the Trustee to draw on the full amount of the available Letter of Credit.
The Trustee may deposit such cash or cash drawn on the Letter of Credit in a
non-interest bearing account for the Trust.
(d) In the event that the purchase of Securities or Contract Securities
pursuant to any contract shall not be consummated in accordance with said
contract or if the Securities represented by a Contract Obligation are not
delivered to the Trust in accordance with Section 2.01(a) or 2.01(b) and the
monies, or, if applicable, the monies drawn on the Letter of Credit, deposited
by the Depositor are not utilized, and the Depositor does not, on or before the
third Business Day prior to the next following Distribution Date, direct the
Trustee to utilize monies deposited for the purchase of Replacement Securities
or Replacement Contract Securities, the Trustee shall credit to the Capital
Account referred to in Section 3.02 the monies, or, if applicable, the monies
drawn on an irrevocable letter of credit, deposited by the Depositor for the
purpose of such purchase. Such funds shall be distributed pursuant to Section
3.04 to Unitholders of record as of the Record Date next following the failure
of consummation of such purchase. The Depositor shall cause to be refunded to
each Unitholder his pro rata portion of the sales charge levied on the sale of
Units to such Unitholder attributable to such Security or Contract Security.
(e) The Trustee is hereby irrevocably authorized to effect registration or
transfer of the Securities in fully registered form to the name of the Trustee
or to the name of its nominee.
(f) In connection with and at the time of any deposit of additional
Securities pursuant to 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 deposit or receivable by the Trust in respect of distributions declared
but not received as of the date of the deposit, reduced by the amount of any
cash or other property received or receivable.
SECTION 2.02. ACCEPTANCE OF TRUST. The Trustee hereby accepts the trusts
herein created, and the Trustee declares that it holds and will hold the Trust
Fund as Trustee, in trust upon the trusts herein set forth, for the use and
benefit of the present and future Unitholders and subject to the terms and
conditions of the Trust Agreement and this Agreement.
SECTION 2.03. ISSUANCE OF UNITS. (a) The Trustee hereby acknowledges
receipt of the deposit of the Securities listed in Schedule A to the Trust
Agreement and referred to in Section 2.01 hereof and, simultaneously with the
receipt of said deposit, has recorded on its books the ownership, by the
Depositor or such other person or persons as may be indicated by the Depositor,
of the aggregate number of Units specified in the Trust Agreement and has to or
on the order of the Depositor in exchange therefor delivered documentation
evidencing the ownership of the number of Units specified substantially in the
form above recited representing the ownership of those Units. The Trustee hereby
agrees that on the date of any Supplemental Trust Agreement, it shall
acknowledge that the additional Securities identified therein have been
deposited with it by recording on its books the ownership, by the Depositor or
such other person or persons as may be indicated by the Depositor, of the
aggregate number of Units to be issued in respect of such additional Securities
so deposited, and shall, if so requested, execute documentation substantially in
the form above recited representing the ownership of an aggregate number of
those Units.
(b) Units will be held in uncertificated form unless the Trust Fund
Prospectus provides otherwise. Under the terms and conditions of the Trust
Agreement and this Agreement and at such times as are permitted by the Trustee,
Units may also be held in certificated form. Unitholders may elect to have their
Units held in certificated form by making a written request to the Trustee
requesting Units be held in certificated form. The Trustee is entitled to
specify the minimum denomination of any Certificate issued. The Trustee shall,
at the request of the holder of any Units held in uncertificated form, issue a
new Certificate to evidence such Units and at such time make an appropriate
notation in the registration books of the Trustee. The rights set forth in this
Agreement of any holder of Units held in certificated form shall be the same as
those of any other Unitholder. Certificates may be transferred as provided in
Article VI.
SECTION 2.04. FORM OF CERTIFICATES. Each Certificate referred to in Section
2.03 is, and each Certificate hereafter issued shall be, in substantially the
form hereinabove recited, numbered serially for identification, in fully
registered form, transferable on the books of the Trustee as herein provided,
executed manually by an authorized signature of the Trustee and by a facsimile
signature of an Authorized Officer of the Depositor and dated the date of
execution and delivery by the Trustee.
ARTICLE III
ADMINISTRATION OF FUND
SECTION 3.01. CERTAIN MONEYS TO BE CREDITED TO INCOME ACCOUNT. The Trustee
shall collect any dividends paid on the Securities for each Trust Fund and
credit any such dividends to a separate account for each Trust Fund to be known
as the "Income Account."
SECTION 3.02. CERTAIN MONEYS TO BE CREDITED TO CAPITAL ACCOUNT. (a) With
respect to each Trust Fund all moneys (except moneys held by the Trustee
pursuant to subsection (b) hereof) other than amounts credited to the Income
Account received by the Trustee in respect of the Securities under this
Agreement shall be credited to a separate account for each Trust Fund to be
known as the "CAPITAL ACCOUNT."
(b) Moneys and/or irrevocable letters of credit required to purchase
Contract Securities or to purchase Securities pursuant to the Depositor's
written instructions, or deposited to secure such purchases, are hereby declared
to be held specially by the Trustee for such purchases and shall not be deemed
to be part of the Capital Account until (i) the Depositor fails to timely
purchase a Contract Security and has not given the Failed Contract Notice (as
defined in Section 3.10) at which time the moneys and/or letters of credit
attributable to the Contract Security not purchased by the Depositor shall be
credited to the Capital Account; or (ii) the Depositor has given the Trustee the
Failed Contract Notice at which time the moneys and/or letters of credit
attributable to failed contracts referred to in such Notice shall be credited to
the Capital Account; PROVIDED, HOWEVEr, that if the Depositor also notifies the
Trustee in the Failed Contract Notice (or by separate notice delivered
concurrently with or prior to the Failed Contract Notice) that it has purchased
or entered into a contract to purchase a New Security (as defined in Section
3.10), the Trustee shall not credit such moneys and/or letters of credit to the
Capital Account unless the New Security shall also have failed or is not
delivered by the Depositor within two business days after the settlement date of
such New Security, in which event the Trustee shall forthwith credit such moneys
and/or letters of credit to the Capital Account. The Depositor shall in any case
forthwith pay to the Trustee and the Trustee shall credit to the Capital Account
the difference, if any, between the purchase price of the failed Contract
Security and the purchase price of the New Security, together with any sales
charge and distribute such moneys to Unitholders pursuant to Section 3.04.
SECTION 3.03. ESTABLISHMENT OF RESERVE ACCOUNT. From time to time the
Trustee may withdraw from the Income or Capital Accounts of each Trust Fund such
amounts as it, in its sole discretion, shall deem requisite to establish a
reserve for any applicable taxes or other governmental charges that may be
payable out of such Trust Fund or for indemnification or extraordinary expenses
of the Depositor or Trustee pursuant to Section 7.02, 8.01 or 8.05. Such amounts
so withdrawn shall be credited to a separate account for such Trust Fund which
shall be known as the "RESERVE ACCOUNT." The Trustee shall not be required to
distribute to the Unitholders any of the amounts in the Reserve Account;
PROVIDED, HOWEVER, that if it, in its sole discretion, determines that such
amounts are no longer necessary, then it shall promptly deposit such amounts in
the account from which withdrawn, or if such Trust Fund has been terminated or
shall be in the process of termination, the Trustee, upon such determination,
shall distribute to each Unitholder of such Trust Fund such holder's interest in
the Reserve Account in accordance with Section 9.01.
SECTION 3.04. CERTAIN DEDUCTIONS AND DISTRIBUTIONS. (a) On or before each
Income Distribution Date as of the close of business on the preceding Record
Date the Trustee shall separately with respect to each Trust Fund to which such
Income Distribution Date relates:
(1) deduct from the Income Account or, to the extent funds are not
available in such Account, from the Capital Account and pay to itself
individually the amounts that it is at the time entitled to receive
pursuant to Section 8.05 on account of its services theretofore performed
and expenses theretofore incurred;
(2) deduct from the Income Account or, to the extent funds are not
available in such Account, from the Capital Account and pay to the
Evaluator the amounts that the Evaluator is at the time entitled to receive
pursuant to Section 4.03 on account of its services theretofore performed
and expenses theretofore incurred;
(3) deduct from the Income Account or, to the extent funds are not
available in such Account, from the Capital Account and pay to counsel an
amount equal to unpaid fees and expenses, if any, of counsel pursuant to
Section 3.07 as certified by the Depositor;
(4) 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 amounts that the Depositor is at the time entitled to receive
pursuant to Section 3.11 on account of its services theretofore performed
and expenses theretofore incurred; and
(5) deduct from the Income Account, or, to the extent funds are not
available in such Account, from the Capital Account, and reimburse itself
for any other fees and expenses arising from time to time out of the Trust
operations that the Trustee has paid.
(b) The Trustee shall for each Trust Fund as of the close of business on
the applicable Record Date compute the amount of the income distribution per
Unit for the next Income Distribution Date (each such amount being herein called
the "INCOME DISTRIBUTION") (i) by deducting from the amount actually received
with respect to dividends on the Securities in the Trust Fund during the period
from the Record Date preceding such Record Date (or the Initial Date of Deposit
if such Record Date is the first Record Date) to and including such Record Date
the total of the amounts to be deducted from the Income Account of such Trust
Fund as of such Record Date pursuant to the foregoing provisions of Section
3.04(a) and (ii) by dividing the result of the calculation performed pursuant to
the immediately preceding clause by the number of Units outstanding on the
applicable Record Date. On or shortly after each Income Distribution Date, the
Trustee shall distribute with respect to each Unitholder of the Trust Fund of
record at the close of business on the preceding Record Date an amount
substantially equal to the Income Distribution computed as of such Record Date.
To the extent that moneys in the Capital Account have not been previously
used to pay for the redemption of Units tendered to a Trust Fund, on the Capital
Distribution Dates each Unitholder shall receive such holder's pro rata share of
the cash balance of the Capital Account of the Trust Fund computed as of the
close of business on the preceding Record Date for such Capital Distribution
Date by (i) deducting from such cash balance the total of (X) cash required to
cover contracts to purchase Securities, (Y) cash required for the redemption of
unredeemed tendered Units and (Z) the sum of the amounts to be deducted from the
Capital Account as of each such Record Date pursuant to the foregoing provisions
of Section 3.04(a) and (ii) dividing the amount so obtained by the number of
Units outstanding on the Record Date immediately preceding such Capital
Distribution Date.
In making the computation of any Unitholder's interest in the balance of
the Income and Capital Accounts, fractions of less than one cent per Unit shall
be omitted. In addition, the Trustee in its discretion may on any Distribution
Date determine that the amount to be distributed to Unitholders should be more
or less than the amount of the applicable Income or Capital Distribution per
Unit because of any unusual or extraordinary increase or decrease in the
expenses incurred or expected to be incurred by such Trust Fund. The Trustee
shall not be obligated to make a distribution from the Capital Account if the
amount available for such distribution is less than $1.00 per 100 Units. The
Trustee is authorized to reinvest any funds held in the Capital or Income
Accounts, pending distribution, in money market mutual funds or U.S. Treasury
obligations which mature on or before the next applicable distribution date. Any
obligations so acquired must be held until they mature and proceeds therefrom
may not be reinvested.
(c) If the Depositor fails to replace any failed Special Security (as
defined in Section 3.10), the Trustee shall distribute to all Unitholders the
moneys originally deposited with respect to such Special Security and sales
charge attributable to such Special Security not more than 30 days after the
expiration of the Purchase Period (as defined in Section 3.10). If any contract
for a New Security in replacement of a Special Security shall fail, the Trustee
shall distribute the moneys originally deposited with respect to such Special
Security and sales charge attributable to the Special Security to the
Unitholders not more than 30 days after the date on which the contract in
respect of such New Security failed. If at the end of the Purchase Period less
than all moneys attributable to a failed Special Security have been applied or
allocated by the Trustee pursuant to a contract to purchase New Securities, the
Trustee shall distribute the remaining moneys (i) to Unitholders not more than
30 days after the end of the Purchase Period to the extent the failed Special
Security has not been fully replaced by New Securities or (ii) to the Depositor
to the extent moneys remain after the purchase of the New Securities, if any,
and the distribution referred to in clause (i).
(d) Except as provided below, all distributions shall be made by first
class mail to each Unitholder of record at the close of business on the
preceding applicable Record Date at the address of such holder appearing on the
registration books of the Trustee PROVIDED, HOWEVER, that the Trustee shall if
so directed with respect to distributions from the Income and/or Capital Account
at the time of purchase of Units or thereafter in writing signed by the
Unitholder and timely received, make such distributions to the Program Agent. A
Unitholder's written notice must be received by the Program Agent at least ten
days prior to the Record Date for the next Income Distribution in order to be in
effect for such Income Distribution and by the last Record Date for distribution
of capital in any year in order to be effective for the following calendar year.
All such notices shall remain in effect until a subsequent notice is received by
the Program Agent. Upon receipt of any such distribution the Program Agent shall
purchase shares (or fractions thereof) in the applicable reinvestment fund as
directed by the Unitholder. The Program Agent shall not be liable to any
Unitholder for any action taken with respect to its duties and responsibilities
as Program Agent; PROVIDED, HOWEVER, that this provision shall not protect the
Program Agent against liability to which it would otherwise be subject by reason
of wilful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
hereunder.
(e) Except as provided by the preceding paragraph, Unitholders of record on
the registration books of the Trustee at the close of business on the Record
Date prior to each Distribution Date, shall be entitled to the distribution in
respect of such Distribution Date, and, except as provided in Article VIII, no
liability shall attach to the Trustee by reason of payment to or on the order of
any such Unitholder of record. Nothing herein shall be construed to prevent the
payment of distributions from the Income and Capital Accounts to any such
Unitholder by means of one check, draft or other proper instrument.
SECTION 3.05. STATEMENTS AND REPORTS. With each distribution from the
Income or Capital Accounts of each Trust Fund the Trustee shall set forth,
either in the instrument by means of which payment of such distribution is made
or in an accompanying statement, the amount being distributed from each such
account expressed as a dollar amount per Unit of such Trust Fund. If the
distribution is an In Kind Distribution, the Trustee shall provide a list of the
Securities being distributed, the aggregate number of shares of each Security
being distributed and any cash representing fractional shares being distributed.
Within a reasonable period of time after the last business day of each calendar
year, the Trustee shall furnish to each person who at any time during such
calendar year was a Unitholder of any individual Trust Fund a statement for such
Trust Fund setting forth with respect to such calendar year:
(A) as to the Income Account:
(1) the amount of dividends received on the Securities;
(2) the amounts paid for purchases of New Securities pursuant to
Section 3.10 and for redemptions pursuant to Section 5.02;
(3) the deductions for applicable taxes and fees and expenses of
the Trust;
(4) the reservations made by the Trustee pursuant to Section
3.03, if any; and
(5) the balance remaining after such distributions, deductions
and reservations expressed both as a total dollar amount and as a
dollar amount per Unit outstanding on the last business day of such
calendar year;
(B) as to the Capital Account:
(1) the dates of sale or liquidation of any of the Securities and
the net proceeds received therefrom (excluding any portion thereof
credited to the Income Account);
(2) the results of In Kind Distributions in connection with
redemptions of Units, if any;
(3) the amounts paid for purchases of New Securities pursuant to
Section 3.10 and for redemptions pursuant to Section 5.02;
(4) the deductions for payment of applicable taxes and fees and
expenses of the Trust;
(5) the reservations made by the Trustee pursuant to Section
3.03, if any; and
(6) the balance remaining after such distributions, deductions
and reservations, expressed both as a total dollar amount and as a
dollar amount per Unit outstanding on the last business day of such
calendar year; and
(C) the following information:
(1) a list of the Securities as of the last business day of such
calendar year;
(2) the number of Units outstanding on the last business day of
such calendar year;
(3) the Unit Value based on the Trust Fund Evaluations made on
the last day of December (or the last business day prior thereto) of
such calendar year; and
(4) the amounts actually distributed to Unitholders during such
calendar year from the Income and Capital Accounts, separately stated,
expressed both as total dollar amounts and as dollar amounts per Unit
outstanding on the Record Dates for such distributions.
SECTION 3.06. EXTRAORDINARY SALE OF SECURITIES. The Depositor by written
notice may direct the Trustee to sell Securities at such price and time and in
such manner as shall be deemed appropriate by the Depositor if the Depositor
shall have determined that any one or more of the following conditions exist:
(a) that there has been a default in the payment of principal of or
interest on any outstanding debt obligations of the issuer of such
Securities; or
(b) that the price of any such Security has declined to such an
extent, as a result of adverse issuer credit factors, so that in the
opinion of the Depositor the retention of such Securities would be
detrimental to the interest of the Unitholders.
Upon receipt of such direction from the Depositor, the Trustee shall
proceed to sell the specified Securities. The Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any sale
made pursuant to any such direction or by reason of the failure of the Depositor
to give any such direction, and in the absence of such direction the Trustee
shall have no duty to sell any Securities under this Section 3.06. The Depositor
shall not be liable for errors of judgment in directing or failing to direct the
Trustee pursuant to this Section 3.06. This provision, however, shall not
protect the Trustee or Depositor against any liability for which they would
otherwise be subject, respectively, by reason of wilful misfeasance, bad faith
or gross negligence in the performance of their duties or by reason of their
reckless disregard of their obligations and duties hereunder.
SECTION 3.07. COUNSEL. The Depositor may employ from time to time counsel
to act on behalf of any Trust Fund for any legal services in connection with the
Securities, and any legal matters relating to the possible disposition of any
Securities pursuant to any provisions hereof. The fees and expenses of such
counsel shall be paid by the Trustee as provided in Section 3.04(a)(3) hereof.
SECTION 3.08. ACTION BY TRUSTEE REGARDING SECURITIES. In the event that the
Trustee shall have been notified at any time of any action to be taken or
proposed to be taken by holders of the Securities the Trustee shall promptly
notify the Depositor and shall thereupon take such action or refrain from taking
any action as the Depositor shall in writing direct; PROVIDED, HOWEVER, that if
the Depositor shall not within five business days of the giving of such notice
to the Depositor direct the Trustee to take or refrain from taking any action,
the Trustee shall take such action as it, in its sole discretion, shall deem
advisable. In connection with any solicitation of proxies by management of any
of the Securities in the Trust Fund, if the Depositor fails to instruct the
Trustee how to vote such proxy, the Trustee shall vote with the recommendation
of such management. Except as provided in Article VII and Article VIII, neither
the Depositor nor the Trustee shall be liable to any person for any action or
failure to take action with respect to this Section 3.08.
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 refection or
without an initial offer, any securities, cash and/or property received 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 cash received in such exchange and cash proceeds of
any such sales shall be distributed to Unitholders on the next distribution date
in the manner set forth in Section 3.04(b) regarding distributions from the
Capital Account. Except as provided in Article VIII, the Trustee shall not be
liable or responsible in any way for depreciation or loss incurred by reason of
any such 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 3.08.
Whenever new securities or property is received and retained by a Trust
Fund pursuant to this Section 3.08, the Trustee shall, within a reasonable
amount of time thereafter, mail to all Unitholders of such Trust Fund notices of
such acquisition unless legal counsel for such Trust Fund determines that such
notice is not required by The Investment Company Act of 1940, as amended.
SECTION 3.09. NOTICE OF CHANGE IN CAPITAL ACCOUNT. The Trustee shall give
prompt written notice to the Depositor and the Evaluator of all amounts credited
to or withdrawn from the Capital Account of any Trust Fund pursuant to any of
the provisions of this Article III and the balance in such Account after giving
effect to the credit or withdrawal.
SECTION 3.10. LIMITED REPLACEMENT OF SPECIAL SECURITIES. If any contract in
respect of Contract Securities other than a contract to purchase a New Security
(as defined below), including those purchased on a delayed delivery basis, shall
have failed due to any occurrence, act or event beyond the control of the
Depositor or the Trustee (such failed Contract Securities being herein called
the "SPECIAL SECURITIES"), the Depositor shall notify the Trustee (such notice
being herein called the "FAILED CONTRACT NOTICE") of its inability to deliver
the failed Special Security to the Trustee after it is notified that the Special
Security will not be delivered by the seller thereof to the Depositor. Prior to,
or simultaneously with, giving the Trustee the Failed Contract Notice, or within
a maximum of 20 days after giving such Failed Contract Notice (such 20 day
period being herein called the "PURCHASE PERIOD"), the Depositor shall, if
possible, purchase, or enter into a contract to purchase, an obligation to be
held as a Security hereunder (herein called the "NEW SECURITY") as part of the
Trust Fund in replacement of the failed Special Security, subject to the
satisfaction of all of the following conditions in the case of each purchase or
contract to purchase:
(a) The New Securities shall be equity securities and shall, in the
opinion of the Depositor, be of the same general quality as those
Securities originally deposited.
(b) The purchase price of the New Securities shall not exceed the
amount of funds reserved for the purchase of the Special Securities.
(c) The Depositor shall furnish a notice to the Trustee (which may be
part of the Failed Contract Notice) in respect of the New Security
purchased or to be purchased that shall (i) identify the New Securities,
(ii) state that the contract to purchase, if any, entered into by the
Depositor is satisfactory in form and substance and (iii) state that the
foregoing conditions of clauses (a) and (b) have been satisfied with
respect to the New Securities.
Upon satisfaction of the foregoing conditions with respect to any New
Security, the Trustee shall pay the purchase price for the New Security from the
amount of funds reserved for the purchase of the Special Securities or, if the
Trustee has credited any moneys and/or letters of credit attributable to the
failed Special Security to the Capital Account, the Trustee shall pay the
purchase price of the New Security upon directions from the Depositor from the
moneys and/or letters of credit so credited to the Capital Account. If the
Trustee has credited moneys of the Depositor to the Capital Account, the Trustee
shall forthwith return to the Depositor the portion of such moneys that is not
properly distributable to Unitholders pursuant to Section 3.04.
Whenever a New Security is acquired by the Depositor pursuant to the
provisions of this Section 3.10, the Trustee shall, within five days thereafter,
mail to all Unitholders notices of such acquisition, including an identification
of the failed Special Securities and the New Securities acquired. The purchase
price of the New Securities shall be paid out of the funds reserved for the
purchase of the failed Special Securities. Except as provided in Article VIII,
the Trustee shall not be liable or responsible in any way for depreciation or
loss incurred by reason of any purchase made pursuant to any such directions and
in the absence of such directions the Trustee shall have no duty to purchase any
New Securities under this Agreement. The Depositor shall not be liable for any
failure to instruct the Trustee to purchase any New Securities or for errors of
judgment in respect of this Section 3.10; PROVIDED, HOWEVER, that this provision
shall not protect the Depositor against any liability to which it would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties hereunder.
SECTION 3.11. COMPENSATION OF DEPOSITOR FOR SUPERVISORY SERVICES. As
compensation for providing supervisory portfolio services under this Agreement,
the Depositor shall receive against a statement or statements therefor submitted
to the Trustee monthly or annually an aggregate annual fee in the amount
specified as compensation for the Depositor in the Prospectus, but in no event
shall such compensation when combined with all compensation received from other
series of the Fund or other unit investment trusts sponsored by the Depositor or
its affiliates for providing such supervisory services in any calendar year
exceed the aggregate cost to the Depositor for providing such services. The rate
of such compensation may be increased by the Depositor from time to time,
without the consent or approval of any Unitholder or the Trustee, by amounts not
exceeding the proportionate increase, during the period from the date of such
Trust Agreement to the date of any such increase, in consumer prices as last
published prior to each such date under the classification "All Services Less
Rent of Shelter" in the Consumer Price Index For All Urban Consumers (CPI-U)
U.S. City Average, not seasonally adjusted, base 1982 - 84 = 100, published by
the United States Department of Labor. In the event that such classification
ceases to incorporate a significant number of items, or if a substantial change
is made in the method of establishing such classification, then the
classification shall be adjusted in a fair and reasonable manner to the figure
that would have resulted had no substantial change occurred in the manner of
computing such classification. In the event that such classification (or a
successor or substitute index) is not available, such governmental or other
service or publication as shall evaluate the information in substantially the
same manner as the aforesaid classification, shall be used in lieu thereof. Such
compensation shall be charged by the Trustee, upon receipt of invoice therefor
from the Depositor, against the Income and Capital Accounts on or before the
Distribution Date on which such period terminates. If the cash balance in the
Income and Capital Accounts shall be insufficient to provide for amounts payable
pursuant to this Section 3.11, 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 3.11. Any moneys payable to the Depositor pursuant to this
Section 3.11 shall be secured by a prior lien on the Trust Fund except that such
lien shall be junior and subordinate to any lien in favor of the Trustee under
the provisions of Section 8.08 and of the Evaluator under the provisions of
Section 4.03.
SECTION 3.12. 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, 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 the Depositor (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. If a Unitholder 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
Unitholder an amount equal to the unpaid portion of the deferred sales charge
and distribute such amount to the Deferred Sales Charge Account. 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 Unitholder 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 Unitholders.
ARTICLE IV
EVALUATION OF SECURITIES; THE EVALUATOR
SECTION 4.01. EVALUATION OF SECURITIES. The Evaluator shall determine
separately and promptly furnish to the Trustee and the Depositor upon request
the value of each issue of Securities as of the Evaluation Time as provided in
the following manner:
The Evaluator will prepare each evaluation for which market quotations for
the Securities are available by the use of outside services normally used and
contracted with for this purpose. If the Securities are listed on a national
securities exchange or the NASDAQ National Market System, the evaluation will be
based on the closing sale price on the exchange or system or, if there is no
closing sale price on the exchange or system, at the closing bid price on the
exchange or system. If such market quotations are not available, the Depositor
shall determine the value of the Securities. Such evaluation shall generally be
based on the current bid prices on the over-the-counter market (unless it is
determined that these prices are inappropriate as a basis for evaluation). If
such prices are not available on the over-the-counter market, the evaluation
will generally be made by the Depositor in good faith (1) on the basis of the
current bid prices for comparable securities, (2) by the Depositor's appraising
the value of the Securities in good faith at the bid side of the market or (3)
by any combination thereof. For each evaluation, the Evaluator shall also
determine and furnish to the Trustee and the Depositor the aggregate of (a) the
value of all Securities on the basis of such evaluation and (b) on the basis of
the information furnished to the Evaluator by the Trustee pursuant to Section
3.02, the amount of cash then held in the Capital Account which was received by
the Trustee after the Record Date preceding such determination less any amounts
held in the Capital Account for distribution to Unitholders on a subsequent
Distribution Date when a Record Date occurs four business days or less after
such determination. For the purposes of the foregoing, the Evaluator may obtain
current prices for the Securities from investment dealers or brokers (including
the Depositor) that customarily deal in similar securities.
SECTION 4.02 CERTAIN INFORMATION TO BE MADE AVAILABLE. For the purpose of
permitting Unitholders to satisfy any reporting requirements of applicable
federal or state tax law, the Evaluator shall make available to the Trustee and
the Trustee shall transmit to any Unitholder upon request any evaluations
pursuant to Section 4.01 which concern the Trust Fund in which such Unitholder
holds Units.
SECTION 4.03. COMPENSATION OF THE EVALUATOR. As compensation for its
services hereunder, the Evaluator shall receive against a statement therefor
submitted to the Trustee on or before each Distribution Date the amount
specified as compensation for the Evaluator in the Prospectus, but in no event
shall such compensation, when combined with all compensation received from other
series of the Fund or other unit investment trusts sponsored by the Depositor or
its affiliates for providing such evaluation services in any calendar year,
exceed the aggregate cost to the Depositor for providing such services. The rate
of such compensation may be increased by the Evaluator from time to time,
without the consent or approval of any Unitholder or the Trustee, by amounts not
exceeding the proportionate increase, during the period from the date of such
Trust Agreement to the date of any such increase, in consumer prices as last
published prior to each such date under the classification "All Services Less
Rent of Shelter" in the Consumer Price Index For All Urban Consumers (CPI-U)
U.S. City Average, not seasonally adjusted, base 1982 - 84 = 100, published by
the United States Department of Labor. In the event that such classification
ceases to incorporate a significant number of items, or if a substantial change
is made in the method of establishing such classification, then the
classification shall be adjusted in a fair and reasonable manner to the figure
that would have resulted had no substantial change occurred in the manner of
computing such classification. In the event that such classification (or a
successor or substitute index) is not available, such governmental or other
service or publication as shall evaluate the information in substantially the
same manner as the aforesaid classification, shall be used in lieu thereof. Such
compensation shall be charged by the Trustee, upon receipt of invoice therefor
from the Evaluator, against the Income and Capital Accounts on or before the
Distribution Date. If the cash balances in the Income and Capital Accounts shall
be insufficient to provide for amounts payable pursuant to this Section 4.03,
the Trustee shall have the power to sell (i) 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 4.03. Any moneys payable to the Evaluator
pursuant to this Section 4.03 shall be secured by a prior lien on the Trust Fund
except that such lien shall be junior and subordinate to any lien in favor of
the Trustee under the provisions of Section 8.08.
SECTION 4.04. LIABILITY OF THE EVALUATOR. The Trustee, the Depositor (if
separate from the Evaluator) and the Unitholders may rely on any evaluation
furnished by the Evaluator and shall have no responsibility for the accuracy
thereof. The Trustee, the Depositor (if separate from the Evaluator) and the
Unitholders may rely on any evaluation furnished by the Depositor and shall have
no responsibility for the accuracy thereof. The determinations made by the
Evaluator and the Depositor hereunder shall be made in good faith. The Evaluator
and the Depositor shall be under no liability to the Trustee, the Depositor or
the Unitholders except for any liability to which it would be subject by reason
of wilful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
hereunder.
SECTION 4.05. RESIGNATION, REMOVAL AND OTHER MATTERS RELATING TO THE
EVALUATOR. (a) The Evaluator may resign and be discharged hereunder, by
executing an instrument in writing resigning as the Evaluator and filing the
same with the Depositor (if separate from the Evaluator) and the Trustee not
less than 60 days before the date specified in such instrument when, subject to
Section 4.05(c), such resignation is to take effect. Upon receiving such notice
of resignation, the Depositor shall use its best efforts to appoint a successor
Evaluator having qualifications and at a rate of compensation satisfactory to
the Depositor. Such appointment shall be made by written instrument executed by
the Depositor and the Trustee in duplicate, one copy of which shall be delivered
to the resigning Evaluator and one copy to the successor evaluator. The
Depositor or the Trustee may remove the Evaluator at any time upon thirty days'
written notice and appoint a successor evaluator having qualifications and at a
rate of compensation satisfactory to the Depositor and the Trustee. Such
appointment shall be made by written instrument executed by the Depositor and
the Trustee in duplicate, one copy of which shall be delivered to the Evaluator
so removed and one copy to the successor evaluator. Notice of such resignation
or removal and appointment of a successor evaluator shall be mailed by the
Trustee to each Unitholder.
(b) If the Evaluator resigns and no successor evaluator shall have been
appointed and have accepted appointment within 30 days after receipt of the
notice of resignation by the Depositor and the Trustee, the Evaluator may
forthwith apply to a court of competent jurisdiction for the appointment of a
successor evaluator. Such court may thereupon, after such notice, if any, as it
may deem proper, appoint a successor evaluator.
(c) Any successor evaluator appointed hereunder shall execute, acknowledge
and deliver to the Depositor and the Trustee an instrument accepting such
appointment hereunder, and such successor evaluator without any further act,
deed or conveyance shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder with like effect as if originally named
the Evaluator herein and shall be bound by all the terms and conditions of this
Agreement. Any resignation or removal of the Evaluator and appointment of a
successor evaluator pursuant to this Section 4.05 shall become effective upon
such acceptance of appointment.
(d) Any corporation into which the Evaluator hereunder may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Evaluator hereunder shall be a party, shall be the
successor evaluator under this Agreement without the execution or filing of any
paper, instrument or further act to be done on the part of the parties hereto,
anything herein, or in any agreement relating to such merger or consolidation,
by which the Evaluator may seek to retain certain powers, rights and privileges
theretofore obtaining for any period of time following such merger or
consolidation, to the contrary notwithstanding.
ARTICLE V
TRUST FUND EVALUATION; REDEMPTION OF UNITS
SECTION 5.01. TRUST FUND EVALUATION. As of the Evaluation Time next
following any tender by a Unitholder for redemption and on any other business
day desired by it or as may be required hereunder, the Trustee shall as to each
Trust Fund:
Add
(1) cash on hand in the Trust Fund (other than cash held
especially for the purchase of Contract Securities) and moneys in the
process of being collected from declared dividends,
(2) the aggregate value of each issue of the Securities in the
Trust Fund (including Contract Securities) as determined by the
Evaluator pursuant to Section 4.01,
(3) amounts representing organizational expenses paid from the
Trust less amounts representing accrued organizational expenses of the
Trust, and
(4) all other assets of the Trust;
Deduct
(1) amounts representing any applicable taxes, governmental
charges or other charges pursuant to Section 3.03 payable out of the
Trust Fund and for which no deductions shall have previously been made
for the purpose of addition to the Reserve Account,
(2) amounts representing estimated accrued fees and expenses of
the Trust Fund including but not limited to unpaid fees and expenses
of the Trustee (including legal and auditing expenses), the Evaluator,
the Depositor and counsel, and
(3) cash allocated for distribution to Unitholders of the Trust
Fund of record as of the business day prior to the evaluation then
being made.
The resulting figure is herein called a "TRUST FUND EVALUATION."
Until the Depositor has informed the Trustee that there will be no further
deposits of Additional Securities pursuant to section 2.01(b), the Depositor
shall provide the Trustee with written estimates of (i) the total organizational
expenses to be borne by the Trust pursuant to Section 10.02 and (ii) the total
number of Units to be issued in connection with the initial deposit and all
anticipated deposits of additional Securities. 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, in each case on the date of
the Trust Agreement, and, in connection with each such calculation, shall take
into account a pro rata portion of such expense and liability based on the
actual number of Units issued as of the date of such calculation. In the event
the Trustee is informed by the Depositor of a revision in its estimate of total
expenses or total Units and upon the conclusion of the deposit of additional
Securities, the Trustee shall base calculations made thereafter on such revised
estimates or actual expenses, respectively, but such adjustment shall not affect
calculations made prior thereto and no adjustment shall be made in respect
thereof.
SECTION 5.02. REDEMPTION OF UNITS; SALE OF SECURITIES. Section
5.02.Redemption of Units; Sale of Securities. Any Unitholder may cause any of
his Units to be redeemed by the Trustee, subject to the terms of this Section
5.02, by making a written request to the Trustee at its principal trust office,
and, in the case of Units evidenced by a Certificate, by tendering such
Certificate to the Trustee at such office, properly endorsed or accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Trustee. Unitholders must sign such written request, and such Certificate or
transfer instrument, exactly as their name appears on the records of the Trustee
and on any Certificate representing the Units to be redeemed. Such signature
must be guaranteed by a participant in the Securities Transfer Agents Medallion
Program ("STAMP") or such other signature guarantee program in addition to, or
in substitution for, STAMP, as may be accepted by the Trustee. Such redemption
shall be made by the Trustee on the third business day following the day on
which request for redemption is received by the Trustee, (such date being herein
called the "REDEMPTION DATE"). Subject to payment by such Unitholder of any tax
or other governmental charges which may be imposed thereon and subject to
payments in the form of In Kind Distributions (as defined below), such
redemption is to be made by payment on the Redemption Date of cash equal to the
Unit Value (determined on the basis of the Trust Fund Evaluation made in
accordance with Section 5.01) multiplied by the number of Units being redeemed
(herein called the "REDEMPTION PRICE"). The portion of the Redemption Price
which represents dividends shall be withdrawn from the Income Account of the
affected Trust Fund to the extent available. The balance paid on any redemption
shall be withdrawn from the Capital Account of the affected Trust to the extent
that funds are available for such purpose. If such available balance shall be
insufficient, the Trustee shall sell from such Trust Fund such Securities from
among those designated for such purpose by the Depositor as the Trustee in its
discretion, shall deem advisable or necessary. 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 declared but unpaid dividends, the
Capital Account shall be reimbursed when sufficient funds are next available in
the Income Account for such funds so applied.
The Trustee may in its discretion, and shall when so directed by the
Depositor in writing, suspend the right of redemption or postpone the date of
payment of the Redemption Price for more than three business days following the
day on which tender for redemption is made (1) for any period during which the
New York Stock Exchange, Inc. is closed other than customary weekend and holiday
closings; (2) for any period during which (i) trading on the New York Stock
Exchange, Inc. is restricted or (ii) an emergency exists as a result of which
disposal by the Trust Fund of the Securities is not reasonably practicable or it
is not reasonably practicable fairly to determine in accordance herewith the
value of the Securities for the purposes of any Trust Fund Evaluation; or (3)
for such other period as the Securities and Exchange Commission may by order
permit.
No later than the close of business on the day of tender of any Unit for
redemption by a Unitholder other than the Depositor, the Trustee shall notify
the Depositor of such tender. The Depositor shall have the right to purchase
such Units by notifying the Trustee of its election to make such purchase as
soon as practicable thereafter but in no event subsequent to the close of
business on the second business day after the day on which such Units were
tendered for redemption. Such purchase shall be made by payment for such Units
by the Depositor to the Unitholder not later than the close of business on the
Redemption Date of any amount not less than the Redemption Price which would
otherwise be payable by the Trustee to such Unitholder.
Any Unit so purchased by the Depositor may at the option of the Depositor
be tendered to the Trustee for redemption in the manner provided in the first
paragraph of this Section 5.02.
Notwithstanding anything to the contrary in this Section 5.02, if offered
by the terms of the Prospectus, any Unitholder may, if such Unitholder tenders
at least that number of Units set forth in the Prospectus for redemption and
makes such tender on or prior to the date provided in the Prospectus, request at
the time of tender to receive from the Trustee in lieu of cash such Unitholder's
pro rata share of each Security then held by the Trust Fund. Such tendering
Unitholder will receive his pro rata number of whole shares of each of the
Securities comprising the portfolio of the Trust Fund and cash from the Capital
Account equal to the value of the fractional shares to which such tendering
Unitholder is entitled. Such pro rata share of each Security and the related
cash equal to the value of the fractional shares to which such tendering
Unitholder is entitled is referred to herein as an "IN KIND DISTRIBUTION". An In
Kind Distribution will be made by the Trustee through the distribution of each
of the Securities in book-entry form to the account of the Unitholder's bank or
broker-dealer at Depository Trust Company. If funds in the Capital Account are
insufficient to cover the required cash distribution to the tendering
Unitholder, the Trustee may sell Securities according to the criteria discussed
above.
The Depositor shall deliver a current list of Securities in each Trust Fund
to be sold for the purpose of redemption of Units tendered for redemption and
for payment of expenses hereunder. If at any such time the Depositor shall for
any reason fail to deliver such a list, the Trustee, in its sole discretion, may
designate a current list of Securities in each Trust Fund for such purposes. The
net proceeds of any sale of Securities shall be credited to the Capital Account
of such Trust Fund.
Except as provided in Article VII and Article VIII, neither the Depositor
nor the Trustee shall be liable or responsible in any way for depreciation or
loss incurred by reason of any sale or designation of Securities made pursuant
to this Section 5.02.
Any Certificates evidencing Units redeemed pursuant to this Section 5.02
shall be cancelled by the Trustee and the Unit or Units evidenced by such
Certificates shall be extinguished by such redemptions.
SECTION 5.01. ROLLOVER UNITS. (a) If the Depositor shall offer a subsequent
series of the Voyageur Equity Trust (the "NEW SERIES"), the Trustee shall, at
the Depositor's direction and at the Depositor's sole cost and expense, include
in the notice sent to Unitholders a form of election whereby Unitholders, whose
redemption distribution would be in an amount sufficient to purchase at least
one Unit of the New Series, may elect to have their Units(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 the 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.
All Units so tendered by a Unitholder (a "ROLLOVER UNITHOLDER") shall be
redeemed and cancelled on the first day of the Special Redemption Period.
Subject to payment by such Rollover Unitholder 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 based on the net asset value as of the first day of the
Special Redemption Period multiplied by the number of Units being redeemed
(herein called the "ROLLOVER DISTRIBUTION").
All Securities included in a Unitholder's Rollover Distribution shall be
sold by the Distribution Agent during the Special Redemption Period pursuant to
the Depositor's direction, and the Distribution Agent shall employ the Depositor
or one of its affiliates as broker in connection with such sales. All such sales
shall be effected through the Depository Trust Company. For such brokerage
services, the Depositor or such affiliate 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 or such affiliate shall direct that sales be made in accordance with
the guidelines set forth in the related 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 each trade date for sales of Securities included in the Rollover
Unitholder's Rollover Distribution, the Distribution Agent shall, as agent for
such Rollover Unitholder, enter into a contract with the Depositor to purchase
from the Depositor Units of the 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 the Trust. Such contract shall provide
for purchase of the maximum number of Units of the New Series whose purchase
price is equal to or less than the cash proceeds held by the Distribution Agent
for the Unitholder 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 Unitholder's redemption
distribution shall not be consummated in accordance with its terms, the
Distribution Agent shall apply the cash proceeds held for such Unitholder as of
the settlement date for the purchase of Units of the 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 Unitholder's Rollover Distribution will produce insufficient
cash proceeds to purchase all of the Units of the 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
Unitholder or the Distribution Agent. Any cash balance remaining after such
purchase shall be distributed within a reasonable time to the Rollover
Unitholder by check mailed to the address of such Unitholder on the registration
books of the Trustee. 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.
Except as provided in Article VIII, 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 their discretion
at any time, decide not to offer Trust Series in the future, and if so, this
Section 5.03 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
reimbursement from the Trust for any and all expenses and disbursements to the
same extent as the Trustee is permitted reimbursement hereunder.
ARTICLE VI
ISSUANCE, TRANSFER, INTERCHANGE AND REPLACEMENT OF CERTIFICATES
SECTION 6.01 ISSUANCE OF CERTIFICATES. Unless otherwise provided in the
Prospectus, Certificates representing Units held by a Unitholder will not be
issued except upon written request by a Unitholder, or his or her registered
broker/dealer, to the Trustee at its principal trust office that such Units be
held in certified form. Certificates that have been issued may be returned to
the Trustee at any time and cancelled, without affecting the Unitholder's
interest in the Trust Fund, when accompanied by proper written instructions from
the Unitholder.
SECTION 6.02.TRANSFER OF UNITS; INTERCHANGE OF CERTIFICATES. A Unitholder
may transfer any of his Units by making a written request to the Trustee at its
principal trust office and, in the case of Units evidenced by a Certificate, by
presenting and surrendering such Certificate at such office properly endorsed or
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Trustee. Unitholders must sign such written request, and
such Certificate of transfer instrument, exactly as their name appears on the
records of the Trustee and on any Certificate representing the Units to be
transferred. Such signature must be guaranteed by a participant in the
Securities Transfer Agents Medallion Program ("STAMP") or such other signature
guarantee program in addition to, or in substitution for, STAMP, as may be
accepted by the Trustee. Such transfer shall thereupon be made on the records of
the Trustee and, if appropriate, a new registered Certificate or Certificates
for the same number of Units of the same Trust Fund shall be issued in exchange
and substitution therefor. Certificates issued pursuant to this Agreement are
interchangeable for one or more other Certificates of the same Trust Fund in an
equal aggregate number of Units and all Certificates issued shall be issued in
denominations of one Unit or any whole multiple thereof as may be requested by
the Unitholder. The Trustee may deem and treat the person in whose name any Unit
or Certificate shall be registered upon the books of the Trustee as the owner of
such Unit or Certificate for all purposes hereunder and the Trustee shall not be
affected by any notice to the contrary. The transfer books maintained by the
Trustee for each Trust Fund for the purpose of this Section 6.02 shall be closed
for an individual Trust Fund as such Trust Fund is terminated pursuant to
Article IX hereof.
A sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such transfer or interchange shall be paid to the
Trustee. A Unitholder may be required to pay $2 (or such other amount as may be
specified by the Trustee and approved by the Depositor) for each new Certificate
issued on any such transfer or interchange.
All Certificates cancelled pursuant to this Agreement, other than those
endorsed for transfer, may be cremated or otherwise destroyed by the Trustee.
SECTION 6.03. REPLACEMENT OF CERTIFICATES. In case any Certificate shall
become mutilated or be destroyed, stolen or lost, the Trustee shall execute and
deliver a new Certificate in exchange and substitution therefor upon the
Unitholder's furnishing the Trustee with proper identification and satisfactory
indemnity, complying with such other reasonable regulations and conditions as
the Trustee may prescribe and paying such expenses as the Trustee may incur,
PROVIDED, HOWEVER, that if the particular Trust Fund has terminated or is in the
process of termination, the Trustee, in lieu of issuing such new Certificate,
may, upon the terms and conditions set forth herein, make the distributions set
forth in Section 9.01 hereof. Any mutilated Certificate shall be duly
surrendered and cancelled before any duplicate Certificate shall be issued in
exchange and substitution therefor. Any duplicate Certificate issued pursuant to
this Section 6.03 shall constitute complete and indefeasible evidence of
ownership in the Trust Fund, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time. Upon issuance of any
duplicate Certificate pursuant to this Section 6.03, the Certificate claimed to
have been lost, stolen or destroyed shall become null and void and of no effect,
and any bona fide purchaser thereof shall have only such rights as are afforded
under Article 8 of the Uniform Commercial Code to a holder presenting a
Certificate for transfer in the case of an overissue.
SECTION 6.04. FORM OF CERTIFICATE. Each Certificate shall be in fully
registered form, shall be numbered serially for identification, shall be
executed in facsimile by the original Depositor of the Trust Fund in question
and manually by an authorized signatory of the Trustee, shall be dated the date
of execution and delivery by the Trustee and shall represent a fractional
undivided interest in the specified Trust Fund, the numerator of which fraction
shall be the number of Units set forth on the face of such Certificate and the
denominator of which shall be the total number of Units of undivided interest of
such Trust Fund outstanding at any such time.
ARTICLE VII
DEPOSITOR
SECTION 7.01. CERTAIN MATTERS REGARDING SUCCESSION. The covenants,
provisions and agreements herein contained shall in every case be binding upon
any successor to the business of any Depositor. In the event of an assignment by
any Depositor to a successor corporation or partnership as permitted by the next
following sentence, such Depositor and, if such Depositor is a partnership, its
partners shall be relieved of all further liability under this Agreement. Any
Depositor may transfer all or substantially all of its assets to a corporation
or partnership which carries on the business of such Depositor, if at the time
of such transfer such successor duly assumes all the obligations of such
Depositor under this Agreement.
SECTION 7.02. LIABILITY OF DEPOSITOR AND INDEMNIFICATION. (a) The Depositor
shall not be under any liability to any Trust Fund or the Unitholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment or for depreciation or
loss incurred by reason of the purchase or sale of any Securities, PROVIDED,
HOWEVER, that this provision shall not protect the Depositor against any
liability to which it would otherwise be subject by reason of wilful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties hereunder. The
Depositor may rely in good faith on any paper, order, notice, list, affidavit,
receipt, evaluation, opinion, endorsement, assignment, draft or any other
document of any kind prima facie properly executed and submitted to it by the
Trustee, the Trustee's counsel, the Evaluator or any other person for any
matters arising hereunder. The Depositor shall in no event be deemed to have
assumed or incurred any liability, duty or obligation to any Unitholder, the
Evaluator or the Trustee other than as expressly provided for herein.
(b) Each Trust Fund shall pay and hold the Depositor harmless from and
against any loss, liability or expense incurred in acting as Depositor of such
Trust Fund other than by reason of wilful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties hereunder. The Depositor shall not be
under any obligation to appear in, prosecute or defend any legal action which in
its opinion may involve it in any expense or liability, PROVIDED, HOWEVER, that
the Depositor may in its discretion undertake any such action which it may deem
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto and the interests of the Unitholders hereunder and, in such
event, the legal expenses and costs of any such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust Fund
concerned and shall be paid directly by the Trustee out of the Income and
Capital Accounts of such Trust Fund.
(c) None of the provisions of this Agreement shall be deemed to protect or
purport to protect the Depositor against any liability to the Trust Fund or to
the Unitholders to which the Depositor would otherwise be subject by reason of
wilful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of the Depositor's reckless disregard of its obligations
and duties under this Agreement.
ARTICLE VIII
TRUSTEE
SECTION 8.01. GENERAL MATTERS RELATING TO THE TRUSTEE. (a) All moneys
deposited with or received by the Trustee hereunder shall be held by it without
interest in trust as part of the appropriate Trust Fund or Reserve Account until
required to be disbursed in accordance with the provisions of this Agreement and
such moneys will be segregated in such manner as shall constitute the
segregation and holding thereof in trust within the meaning of the Investment
Company Act of 1940.
(b) The Trustee shall be under no liability for any action taken in good
faith on any evaluation, paper, order, list, demand, request, consent,
affidavit, notice, opinion, direction, endorsement, assignment, resolution,
draft or other document whether or not of the same kind, prima facie properly
executed, or the disposition of moneys or Securities pursuant to this Agreement;
PROVIDED, HOWEVER, that this provision shall not protect the Trustee against any
liability to which it would otherwise be subject by reason of wilful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties hereunder, and
the Trustee may construe any of the provisions of this Agreement insofar as the
same may appear to be ambiguous or inconsistent with any other provisions
hereof, and any construction of any such provisions hereof by the Trustee in
good faith shall be binding upon the parties hereto and the Unitholders.
(c) The Trustee shall not be responsible for or in respect of the recitals
herein, the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor, or for the form, character, genuineness, sufficiency,
value or validity of any Securities or for or in respect of the validity or
sufficiency of any Certificates (except for the due execution thereof by the
Trustee) or for the due execution thereof by the Depositor and the Trustee shall
in no event assume or incur any liability, duty or obligation to any Unitholder
or to the Depositor or Evaluator, other than as expressly provided for herein.
The Trustee shall not be responsible for or in respect of the validity of any
signature by or on behalf of the Depositor.
(d) The Trustee shall not be under any obligation to appear in, prosecute
or defend any action which in its opinion may involve it in expense or liability
unless it shall be furnished with such reasonable security and indemnity against
such expense or liability as it may be required, and any pecuniary cost of the
Trustee from such actions shall be deductible ratably from and a ratable charge
against the Trust Funds concerned. The Trustee shall in its discretion undertake
such action as it may deem necessary at any and all times to protect the Trust
Funds and the rights and interests of the Unitholders pursuant to the terms of
this Agreement, PROVIDED, HOWEVER, that the expenses and costs of such actions,
undertakings or proceedings shall be reimbursable to the Trustee ratably from
the Trust Funds concerned.
(e) The Trustee may employ agents, attorneys, accountants and auditors,
including an agent or agents for the purpose of custody and safeguarding
Securities, and shall not be answerable for the default or misconduct of any
such agents, attorneys, accountants or auditors if such agents, attorneys,
accountants or auditors shall have been selected with reasonable care. The
Trustee shall not be liable in respect of any action taken or suffered under
this Agreement in good faith, in accordance with an opinion of counsel. The fees
and expenses charged by such agents, attorneys, accountants or auditors, except
for the fees and expenses charged by any agent or agents for custody and
safeguarding of Securities, shall constitute an expense of the Trustee
reimbursable from the Income and Capital Accounts as set forth in Section 3.04
hereof.
(f) If at any time the Depositor shall fail to undertake or perform any of
the duties which by the terms of this Agreement are affirmatively required by it
to be undertaken or performed, or the Depositor shall be incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Depositor or of
its property shall be appointed, or any public officer shall take charge or
control of the Depositor or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then in any such case, the Trustee
may do any one or more of the following: (1) appoint a successor Depositor who
shall act hereunder in all respects in place of such Depositor and which may be
compensated, at rates deemed by the Trustee to be reasonable under the
circumstances, by deduction ratably from the Income Account or, to the extent
funds are not available in such Account, from the Capital Account of the Trust
Funds but no such deduction shall be made exceeding such reasonable amount as
the Securities and Exchange Commission may prescribe in accordance with Section
26(a)(2)(C) of the Investment Company Act of 1940; (2) continue to act as
Trustee hereunder without terminating this Agreement; or (3) terminate this
Agreement and the trust created hereby and liquidate the Trust Funds in the
manner provided in Section 9.01.
(g) If the value of any Trust Fund as shown by any Trust Fund Evaluation
shall be less than the liquidation amount specified in the Prospectus, the
Trustee may in its discretion, and shall if so directed by the Depositor,
terminate this Agreement and the trust created hereby, only insofar as it
relates to such Trust Fund, and liquidate such Trust Fund all in the manner
provided in Section 9.01 or if by reason of the aggregate redemption of Units
not theretofore sold by the Depositor and/or one or more of the underwriters
such that the net worth of such Trust Fund is reduced to less than 40% of the
aggregate original value of the Securities initially deposited therein, the
Trustee shall terminate this Agreement and the trust created hereby, only
insofar as it relates to such Trust Fund, and liquidate such Trust Fund, all in
the manner provided in Section 9.01.
(h) In no event shall the Trustee be personally liable for any taxes or
other governmental charges imposed upon or in respect of the Securities or upon
any dividends or interest thereon. The Trustee shall be reimbursed and
indemnified out of the Income and Capital Accounts of the appropriate Trust Fund
for all such taxes and charges, for any tax or charge imposed against the
Trustee as Trustee of such Trust Fund and for any expenses, including counsel
fees, which the Trustee may sustain or incur with respect to such taxes or
charges.
(i) Notwithstanding any provisions of this Agreement to the contrary, no
payment to a Depositor or to any principal underwriter (as defined in the
Investment Company Act of 1940) for the Trust Fund or to any affiliated person
(as so defined) or agent of a Depositor or such underwriter shall be allowed the
Trustee as an expense except for payment of such reasonable amounts as the
Securities and Exchange Commission may prescribe as compensation for performing
bookkeeping and other administrative services of a character normally performed
by the Trustee.
SECTION 8.02 BOOKS, RECORDS AND REPORTS. The Trustee shall keep proper
books of record and account of all the transactions of each Trust under this
Indenture at its corporate trust office including a record of the name and
address of, and the Certificates issued by each Trust and held by, every
Unitholder, and such books and records of each Trust shall be open to inspection
by any Unitholder of such Trust at all reasonable times during the usual
business hours.
Unless the Depositor determines that such an audit is not required, the
account of each Trust shall be audited not less than annually by independent
public accountants designated from time to time by the Depositor and reports of
such accountants shall be furnished by the Trustee, upon request, to
Unitholders. The Trustee, however, in connection with any such audits shall not
be obligated to use Trust assets to pay for such audits in excess of the amounts
indicated in the Prospectus relating to such Trust.
To the extent permitted under the Investment Company Act of 1940 as
evidenced by an opinion of independent counsel to the Depositor, the Trustee
shall pay, or reimburse to the Depositor or others, the costs of the preparation
of documents and information with respect to a Trust required by law or
regulation in connection with the maintenance of a secondary market in Units of
such Trust. Such costs may include, but are not limited to, accounting and legal
fees, blue sky registration and filing fees, printing expenses and other
reasonable expenses related to documents required under federal and state
securities laws. Such costs shall be a Trust expense and the Trustee shall not
be obligated to advance any of its own funds to make such payments.
SECTION 8.03 REPORTS TO SECURITIES AND EXCHANGE COMMISSION AND OTHERS. The
Trustee shall make such annual or other reports as may from time to time be
required under any applicable state or federal statute or rule or regulation
thereunder.
SECTION 8.04. AGREEMENT AND LIST OF SECURITIES ON FILE. The Trustee shall
keep a certified copy or duplicate original of this Agreement on file at its
principal trust office available for inspection by any Unitholder at all
reasonable times during its usual business hours, and the Trustee shall keep and
so make available for inspection a current list of the Securities in each Trust
Fund.
SECTION 8.05. COMPENSATION OF TRUSTEE. The Trustee shall receive at the
times and in the manner set forth in Section 3.04 as compensation for performing
the usual, ordinary, normal and recurring services under this Agreement during
the preceding month an amount equal to the amount specified as compensation for
the Trustee in the Prospectus. The Trustee may periodically adjust the
compensation provided for pursuant to this paragraph (i) in response to
fluctuations in short-term interest rates and (ii) from time to time, without
the consent or approval of any Unitholder or the Depositor, by amounts not
exceeding the proportionate increase, during the period from the date of such
Trust Agreement to the date of any such increase, in consumer prices as last
published prior to each such date under the classification "All Services Less
Rent of Shelter" in the Consumer Price Index For All Urban Consumers (CPI-U)
U.S. City Average, not seasonally adjusted, base 1982 - 84 = 100, published by
the United States Department of Labor. In the event that such classification
ceases to incorporate a significant number of items, or if a substantial change
is made in the method of establishing such classification, then the
classification shall be adjusted in a fair and reasonable manner to the figure
that would have resulted had no substantial change occurred in the manner of
computing such classification. In the event that such classification (or a
successor or substitute index) is not available, such governmental or other
service or publication as shall evaluate the information in substantially the
same manner as the aforesaid classification, shall be used in lieu thereof. The
Trustee shall also receive, at the times and in the manner set forth in Section
3.04, reimbursement for any and all expenses and disbursements incurred
hereunder (except as set forth in Section 8.01(e)), including legal and auditing
expenses and additional compensation for any extraordinary services performed
hereunder, which extraordinary services shall include, but not be limited to,
all costs and expenses incurred by the Trustee in making any annual or other
reports pursuant to Section 8.03, or in making any distribution of cash
attributable to failed contracts covering Contract Securities in accordance with
Section 3.04; PROVIDED, HOWEVER, that the amount of any such charge which has
not been finally determined as of any Distribution Date may be estimated and any
necessary adjustments shall be made in any succeeding period.
The Trustee shall be indemnified ratably from the Trust Funds and held
harmless against any loss, liability or expense incurred without gross
negligence, bad faith, wilful misconduct or reckless disregard of its duties on
the part of the Trustee arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in the premises.
The Trustee's normal and extraordinary compensation and reimbursement of
the above-mentioned expenses and losses shall be charged by the Trustee against
the Income and Capital Accounts of the appropriate Trust Funds in accordance
with Section 3.04 on or before each Distribution Date. If the balances in the
Income and Capital Accounts shall be insufficient to provide for amounts payable
pursuant to this Section 8.05, the Trustee shall have the power to sell
Securities in the manner provided in Section 5.02 hereof. The Trustee shall not
be liable or responsible in any way for depreciation or loss incurred by reason
of any sale of Securities made pursuant to this Section 8.05.
SECTION 8.06.RESIGNATION, DISCHARGE OR REMOVAL OF THE TRUSTEE; SUCCESSORS.
(a) The Trustee may resign and be discharged of the trust created by this
Agreement by executing an instrument in writing resigning as Trustee of such
trust, filing the same with the Depositor and mailing a copy of a notice of
resignation to all Unitholders then of record, not less than sixty days before
the date specified in such instrument when, subject to Section 8.06(c), such
resignation is to take effect. Upon receiving such notice of resignation, the
Depositor shall use its best efforts promptly to appoint a successor trustee in
the manner and meeting the qualifications hereinafter provided, by written
instrument or instruments delivered to the resigning Trustee and the successor
trustee. Notice of such appointment of a successor trustee shall be mailed
promptly after acceptance of such appointment by the successor trustee to each
Unitholder then of record. The Depositor may remove the Trustee at any time with
or without cause upon 90 day written notice to the Trustee and appoint a
successor trustee by written instrument or instruments delivered to the Trustee
so removed and the successor trustee, PROVIDED that a notice of such removal and
appointment of a successor trustee shall be mailed by the successor trustee
promptly after acceptance of such appointment to each Unitholder then of record.
The Trustee, however, may not be removed without cause during the first two
months of any calendar year.
(b) In case at any time the Trustee shall resign and no successor trustee
shall have been appointed within thirty days after notice of resignation has
been received by the Depositor, the retiring Trustee may forthwith apply to a
court of competent jurisdiction for the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(c) Any successor trustee appointed hereunder shall execute and acknowledge
to the Depositor and the retiring Trustee an instrument accepting such
appointment hereunder, and such successor trustee without any further act, deed
or conveyance shall become vested with all rights, powers, duties and
obligations of its predecessor hereunder with like effect as if originally named
a Trustee herein and shall be bound by all the terms and conditions of this
Agreement. Upon the request of such successor trustee, the retiring Trustee
shall, upon payment of all amounts due the retiring Trustee, execute and deliver
an instrument acknowledged by it transferring to such successor trustee all the
rights and powers of the retiring Trustee; and the retiring Trustee shall
transfer, deliver and pay over to the successor trustee all Securities and
moneys at the time held by it hereunder, if any, together with all necessary
instruments of transfer and assignment or other documents properly executed
necessary to effect such transfer and such of the records or copies thereof
maintained by the retiring Trustee in the administration hereof as may be
requested by the successor trustee and shall thereupon be discharged from all
duties and responsibilities under this Agreement. Any resignation or removal of
a Trustee and appointment of a successor trustee pursuant to this Section 8.06
shall become effective upon such acceptance of appointment by the successor
trustee.
(d) Any corporation into which a Trustee hereunder may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which such Trustee hereunder shall be a party, shall be the
successor trustee under this Agreement without the execution or filing of any
paper, instrument or further act to be done on the part of the parties hereto,
anything herein, or in any agreement relating to such merger or consolidation,
by which any such Trustee may seek to retain certain powers, rights and
privileges theretofore obtaining for any period of time following such merger or
consolidation, to the contrary notwithstanding.
SECTION 8.07. QUALIFICATION OF TRUSTEE. The Trustee and any successor
trustee shall be a corporation organized under laws of the United States, or any
state thereof, which is authorized under such laws to exercise trust powers and
has at all times an aggregate capital, surplus and undivided profits of not less
than $5,000,000.
SECTION 8.08. COLLATERAL. As collateral security for the prompt payment to
the Trustee of all reimbursement to which the Trustee is entitled hereunder and
of all sums at any time owed to or payable to the Trustee hereunder (including,
without limitation, the prompt reimbursement of the Trustee for any sums that it
may from time to time in its discretion advance to the account of the Trust
Fund), the Trustee is hereby granted a first and prior lien and security
interest in and to the Trust Fund and all Securities now or hereafter included
therein, including (without limitation) those Securities listed in the Trust
Agreement, together with all Securities, obligations, Contract Securities and
instruments received in exchange or substitution therefor and all proceeds
thereof and all additions and substitutions.
ARTICLE IX
TERMINATION
SECTION 9.01 PROCEDURE UPON TERMINATION. This Agreement and the trust
created hereby shall terminate as to an individual Trust Fund upon the maturity,
redemption, sale or other disposition, as the case may be, of the last Security
held hereunder in such Trust Fund, unless sooner terminated as hereinbefore
specified, and may be terminated at any time by written instrument executed by
the Depositor and consented to by holders of Units representing 66-2/3% of the
Units of such Trust Fund then outstanding under this Agreement; PROVIDED, that
in no event shall any individual Trust Fund continue beyond the Mandatory
Termination Date for such Trust Fund.
Written notice of any termination, specifying the time or times at which
any Unitholder holding Certificates may surrender such Certificates for
cancellation and the date, determined by the Trustee, upon which the transfer
books of the Trustee, maintained pursuant to Section 8.02, shall be closed with
respect to the terminated Trust Fund or the entire Fund, as the case may be,
shall be given by the Trustee to Unitholders of such terminated Trust Fund or
all Unitholders, as the case may be.
Within a reasonable period of time after the termination of a Trust Fund or
the entire Fund, the Trustee shall sell all of the Securities then held, if any,
and shall:
(a) deduct from the Income Account or to the extent that funds are not
available in such Account, from the Capital Account of every Trust Fund
separately and pay to itself individually an amount equal to the sum of (1)
its accrued compensation for its ordinary services in connection with such
Trust Fund, (2) any compensation due it for its extraordinary services in
connection with such Trust Fund and (3) any other expenses and
disbursements in connection with such Trust Fund as provided herein;
(b) deduct from the Income Account or to the extent that funds are not
available in such account, from the Capital Account of every Trust Fund
separately and pay accrued and unpaid fees in connection with such Trust
Fund of the Evaluator, the Depositor and counsel, if any;
(c) deduct from the Income Account, or to the extent that funds are
not available from such Account, from the Capital Account of every Trust
Fund separately any amounts which it in its sole discretion shall deem
requisite to be deposited in the Reserve Account to provide for any
applicable taxes or other governmental charges that may be payable out of
such Trust Fund;
(d) distribute to each Unitholder (upon surrender for cancellation of
his Certificate or Certificates, if issued) such Unitholder's interest in
the balances of the Income and, on the conditions set forth in Section 3.03
hereof, the Reserve Accounts of the Trust Fund in which he holds Units,
PROVIDED that such distribution shall be made to Unitholders of record as
of the date of such computation and shall be distributed to them within
five days or shortly thereafter;
(e) either distribute in cash to each Unitholder (upon surrender for
cancellation of his Certificate or Certificates, if issued) such
Unitholder's pro rata share of the balance of the Capital Account, or, in
the alternative, if offered by the terms of the Prospectus, distribute to
each Unitholder who then owns at least that number of Units set forth in
the Prospectus and who has requested an In Kind Distribution under the
conditions set forth in Section 5.02, such holder's In Kind Distribution as
set forth in Section 5.02; and
(f) together with such distribution to each Unitholder as provided for
in paragraph (d) and (e), furnish to each such Unitholder a final statement
as of the date of the computation of the amount distributable to
Unitholders of the same Trust Fund, setting forth the data and information
in substantially the form and manner provided for in Section 3.05 hereof.
Any Unitholder who receives an In Kind Distribution, if offered by the
terms of the Prospectus, shall receive such Distribution in the same manner as
is provided in connection with redemptions in Section 5.02.
SECTION 9.02 NOTICE TO UNITHOLDERS. In the event that all of the
Unitholders holding Certificates shall not surrender their Certificates for
cancellation within six months after the time specified in the applicable,
above-mentioned notice, the Trustee shall give a second written notice to the
remaining Unitholders to surrender their Certificates for cancellation and
receive the liquidating distribution with respect thereto. If within one year
after the second notice all the Certificates issued shall not have been
surrendered for cancellation, the Trustee may take appropriate steps or may
appoint an agent to take appropriate steps, to contact the remaining Unitholders
concerning surrender of their Certificates and the cost thereof shall be paid
out of the moneys and other assets which remain in the affected Trust Fund.
SECTION 9.03. MONEYS TO BE HELD IN TRUST WITHOUT INTEREST. The Trustee
shall be under no liability with respect to moneys in the Income, Capital and
Reserve Accounts upon termination, except to hold the same in trust without
interest.
SECTION 9.04. DISSOLUTION OF DEPOSITOR NOT TO TERMINATE. The dissolution of
the Depositor shall not, subject to Section 8.01(f), operate to terminate this
Agreement or the Fund or any individual Trust Fund.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. AMENDMENT AND WAIVER. This Agreement may be amended from
time to time by the Depositor and the Trustee without the consent of any of the
Unitholders (a) to cure any ambiguity or to correct or supplement any provisions
contained herein which may be defective or inconsistent with any other provision
contained herein; (b) to change any provision hereof as may be required by the
Securities and Exchange Commission or any successor governmental agency
exercising similar authority; or (c) to make such other provisions in regard to
matters or questions arising hereunder as shall not adversely affect the
interest of the Unitholders (as determined in good faith by the Depositor and
the Trustee). This Agreement may also be amended from time to time by the
Depositor and the Trustee (or the performance of any of the provisions of this
Agreement may be waived) with the consent of holders of Units representing
66-2/3% of the Units at the time outstanding under the Trust Agreement of the
individual Trust Fund or Trust Funds affected for the purpose of adding any
provisions of this Agreement or of modifying in any manner the rights of the
holders of Units of such Trust Fund or Trust Funds; PROVIDED, HOWEVER, that in
no event may any amendment be made which would (a) alter the rights to the
Unitholders as against each other, (b) provide the Trustee with the power to
engage in business or investment activities other than as specifically provided
in this Agreement or (c) adversely affect the characterization of the Trust as a
grantor trust for federal income tax purposes; PROVIDED, FURTHER, that the
consent of 100% of the Unitholders of any individual Trust Fund is required to
amend this Agreement (a) to increase the number of Units of such Trust Fund
issuable hereunder above the number of Units specified in the Prospectus or such
lesser amount as may be outstanding at any time during the term of this
Agreement, (b) to permit, in addition to acquisitions permitted under Section
3.10 hereof, the acquisition hereunder of any Securities for such Trust Fund
different from those specified in Schedule A to the Trust Agreement, (c) to
reduce the aforesaid percentage of Units the holders of which are required to
consent to certain amendments and (d) to reduce the interest in such Trust Fund
represented by any Units of such Trust Fund.
Promptly after the execution of any amendment the Trustee shall furnish
written notification of the substance of such amendment to each Unitholder then
of record affected thereby.
It shall not be necessary for the consent of Unitholders under this Section
10.01 or under Section 9.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Unitholders shall be subject to such
reasonable regulations as the Trustee may prescribe.
SECTION 10.02. INITIAL COSTS. Unless otherwise provided in the Trust's
prospectus, the expenses incurred in establishing the Trust, including the cost
of the preparation and typesetting of the registration statement, prospectuses
(including preliminary prospectuses), the indenture and other documents relating
to the Trust, printing of Certificates, Securities and Exchange Commission and
state blue sky registration fees, the costs 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, to the extent not
borne by the Depositor, shall be borne by the Trust. 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 8.05 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 payment of expenses and the amounts advanced
pursuant to this Section. For the purposes of the preceding sentence and the
addition provided in clause (3) of the first sentence 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 Trust Agreement and to accrue at a daily rate over
the time period specified for their amortization provided in the Prospectus;
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
calculating the accrual of organizational expenses under this Section 10.02, the
Trustee shall rely on the written estimates of such expenses provided by the
Depositor pursuant to Section 5.01."
SECTION 10.03. REGISTRATION (INITIAL AND CURRENT) OF UNITS AND FUND. The
Depositor agrees and undertakes on its own part to register the Units, each
Trust Fund and the Fund with the Securities and Exchange Commission and under
the Blue Sky laws of such states as the Depositor may select.
SECTION 10.04 CERTAIN MATTERS RELATING TO UNITHOLDERS. (a) The death or
incapacity of any Unitholder shall not operate to terminate this Agreement, the
Fund or the Trust Fund in which he holds Units nor entitle his legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Fund or such Trust
Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them. Each Unitholder expressly waives any right he may
have under any rule of law, or the provisions of any statute, or otherwise, to
require the Trustee at any time to account, in any manner other than as
expressly provided in this Agreement, in respect of the Securities or moneys
from time to time received, held and applied by the Trustee hereunder.
(b) No Unitholder shall have any right to vote except as provided in
Sections 9.01 and 10.01 or in any manner otherwise to control the operation of
the Fund or the obligations of the parties hereto, nor shall anything set forth
in this Agreement or the Trust Agreement or contained in the terms of any
Certificates which may have been issued be construed so as to constitute the
Unitholders from time to time as partners or members of an association; nor
shall any Unitholder ever be under any liability to any third persons by reason
of any action taken by the parties to this Agreement, or for any other cause
whatsoever.
(c) By the purchase and acceptance or other lawful delivery and acceptance
of any Unit, whether certificated or not, the Unitholder shall be deemed to be a
beneficiary of the Trust created by this Agreement and the Trust Agreement and
vested with all right, title and interest in the Trust Fund therein created to
the extent of the Unit or Units set forth whether evidenced by such Certificate
or held in uncertificated form, subject to the terms and conditions of this
Agreement and the Trust Agreement.
(d) A Unitholder may at any time tender his Units or his Certificate(s) if
held in certificated form (including any temporary Certificate or other evidence
of ownership of Units of the Trust Fund, issued by the Trustee or the Depositor)
to the Trustee for redemption, subject to and in accordance with Section 5.02.
SECTION 10.05 MISSOURI LAW TO GOVERN. This Agreement is executed and
delivered in the State of Missouri, and all laws or rules of construction of
such State, except for provisions with respect to choice of law, shall govern
the rights of the parties hereto and the Unitholders and the interpretation of
the provisions hereof.
SECTION 10.06 NOTICES. Any notice, demand, direction or instruction to be
given to the Depositor hereunder shall be in writing and shall be duly given if
mailed, first class with proper postage prepaid, or delivered to the Depositor
at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other address as shall be specified in the Prospectus or by the Depositor to the
other parties hereto in writing. Any notice, demand, direction or instruction to
be given to the Trustee shall be in writing and shall be duly given if mailed,
first class with proper postage prepaid, or delivered to the Trustee at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address as shall be
specified to the other parties hereto in writing. Any notice to be given to a
Unitholder shall be duly given if mailed, first class with proper postage
prepaid, or delivered to each Unitholder at the address of such holder appearing
on the registration books of the Trustee.
SECTION 10.07. SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of any Certificates or the rights of the holders
thereof.
SECTION 10.08. SEPARATE AND DISTINCT SERIES. Each series of Voyageur Equity
Trust to which these Standard Terms and Conditions of Trust shall be applicable
shall, for all financial and administrative purposes, be considered separate and
distinct from every other series, and neither the assets of nor the expenses of
any one series shall be applied or charged against any other series.
IN WITNESS WHEREOF, the parties hereto have caused these Standard Terms and
Conditions of Trust, Dated January 3, 1996 to be duly executed.
VOYAGEUR FUND MANAGERS, INC.,
Depositor
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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General Counsel
INVESTORS FIDUCIARY TRUST COMPANY,
Trustee
By
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Operations Officer