Exhibit 1.1(b)
Nuveen Unit Trusts, Series 82
Trust Indenture and Agreement
Dated: March 6, 2000
This Trust Indenture and Agreement by and between ▇▇▇▇ Nuveen & Co.
Incorporated, as Depositor and The Chase Manhattan Bank, as Trustee, sets forth
certain provisions in full and incorporates other provisions by reference to the
document entitled "Standard Terms and Conditions of Trust for Nuveen Unit Trust,
Series 4 and certain subsequent Series, effective May 29, 1997" (herein called
the "Standard Terms and Conditions of Trust"), and such provisions as set forth
in full and such provisions as are incorporated by reference constitute a single
instrument. All references herein to Articles and Sections are to Articles and
Sections of the Standard Terms and Conditions of Trust.
Witnesseth That:
In consideration of the promises and of the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
Part I
Standard Terms and Conditions of Trust
Subject to the Provisions of Part II hereof, all the provisions contained
in the Standard Terms and Conditions of Trust are herein incorporated by
reference in their entirety and shall be deemed to be a part of this instrument
as fully and to the same extent as though said provisions had been set forth in
full in this instrument.
Part II
Special Terms and Conditions of Trust
The following special terms and conditions are hereby agreed to:
(a) The Securities defined in Section 1.01(1) listed in Schedule A
hereto have been deposited in trust under this Trust Indenture and
Agreement.
(b) The fractional undivided interest in and ownership of a Trust Fund
represented by each Unit for the Trust(s) on the Initial Date of Deposit is
1/(the number of Units) set forth under the caption "Statement(s) of
Condition--Interest of Unitholders: Units of fractional undivided interest
outstanding" in the Prospectus.
(c) The number(s) of Units created of the Trust(s) are set forth
under the caption "Statement(s) of Condition--Interest of Unitholders:
Units of fractional undivided interest outstanding" in the Prospectus for
the Trusts.
(d) Section 10.02 shall be amended to read in its entirety as
follows:
Section 10.02. Initial Costs. Subject to reimbursement as hereinafter
provided, the cost of organizing the Trust(s) and the sale of the Trust Units
shall be borne by the Depositor, provided, however, that the liability on the
part of the Depositor under this section shall not include any fees or other
expenses incurred in connection with the administration of the Trust(s)
subsequent to the deposit referred to in Section 2.01. At the earlier of six
months after the Initial Date of Deposit or the conclusion of the primary
offering period (as certified by the Depositor to the Trustee), the Trustee
shall withdraw from the Account or Accounts specified in the Prospectus or, if
no Account is therein specified, from the Capital Account, and pay to the
Depositor the Depositor's reimbursable expenses of organizing the Trust(s) in an
amount certified to the Trustee by the Depositor. In no event shall the amount
paid by the Trustee to the Depositor for the Depositor's reimbursable expenses
of organizing the Trust(s) exceed the estimated per Unit amount of organization
costs set forth in the prospectus for the Trust(s) multiplied by the number of
Units of the Trust(s) outstanding at the earlier of six months after the Initial
Date of Deposit or the end of the initial offering period; nor shall the
Depositor be entitled to or request reimbursement for expenses of organizing the
Trust(s) incurred after the earlier of six months after the Initial Date of
Deposit or the end of the initial offering period. If the cash balance of the
Capital Account is insufficient to make such withdrawal, the Trustee shall, as
directed by the Depositor, sell Securities identified by the Depositor, or
distribute to the Depositor Securities having a value, as determined under
Section 4.01 as of the date of distribution, sufficient for such reimbursement.
Securities sold or distributed to the Depositor to reimburse the Depositor
pursuant to this Section shall be sold or distributed by the Trustee, to the
extent practicable, in the percentage ratio then existing. The reimbursement
provided for in this section shall be for the account of the Unitholders of
record at the earlier of six months after the Initial Date of Deposit or the
conclusion of the primary offering period. Any assets deposited with the Trustee
in respect of the expenses reimbursable under this Section 10.02 shall be held
and administered as assets of the Trust(s) for all purposes hereunder. The
Depositor shall deliver to the Trustee any cash identified in the Statement(s)
of Condition of the Trust(s) included in the Prospectus not later than the 10
calendar days following the Initial Date of Deposit or deposit of additional
Securities, as applicable and the Depositor's obligation to make such delivery
shall be secured by the letter of credit deposited pursuant to Section 2.01. Any
cash which the Depositor has identified as to be used for reimbursement of
expenses pursuant to this Section 10.02 shall be held by the Trustee, without
interest, and reserved for such purpose and accordingly, prior to the earlier of
six months after the Initial Date of Deposit or the conclusion of the primary
offering period, shall not be subject to distribution or, unless the Depositor
otherwise directs, used for payment of redemptions in excess of the per Unit
amount payable pursuant to the next sentence. If a Unitholder redeems Units
prior to the earlier of six months after the Initial Date of Deposit or the
conclusion of the primary offering period, the Trustee shall pay to the
Unitholder, in addition to the Redemption Value of the tendered Units, unless
otherwise directed by the Depositor, an amount equal to the estimated per
Unitcost of organizing the Trust(s) set forth in the Prospectus, or such lower
revision thereof most recently communicated to the Trustee by the Depositor
pursuant to Section 5.01, multiplied by the number of Units tendered for
redemption; to the extent the cash on hand in the Trust(s) is insufficient for
such payment, the Trustee shall have the power to sell Securities in accordance
with Section 5.02. As used herein, the Depositor's reimbursable expenses of
organizing the Trust(s) shall include the cost of the initial preparation and
typesetting of the registration statement, prospectuses (including preliminary
prospectuses), the indenture, and other documents relating to the Trust(s), SEC
and state blue sky registration fees, the cost of the initial valuation of the
portfolio and audit of the Trust(s), 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.
(e) Article I of the Standard Terms and Conditions of Trust is hereby
amended to replace the definitions of "Capital Distribution Date,"
"Contract Securities," "Initial Date of Deposit," "Mandatory Termination
Date," "Record Date," "Securities" and "Unit" and to add the following
definitions:
Capital Distribution Date
The meaning assigned to it in the Prospectus for a Trust.
Mandatory Termination Date
The meaning assigned to it in the Prospectus for a Trust.
Contract Securities
The Securities which are to be acquired by any Trust Fund
pursuant to a contract or contracts for the purchase of such
securities which have been assigned to the Trustee along with the
amounts required for their purchase which have been delivered to the
Trustee.
Evaluator
The party designated in the Prospectus for a Trust or any party
appointed by the Sponsor.
Initial Date of Deposit
The meaning assigned to it in the Prospectus for each respective
Trust Fund.
Prospectus
The prospectus relating to a Trust in the form first used
to confirm sales of Units.
Record Date
As applicable, the meaning assigned in "Income Record Date"
and/or "Capital Record Date" in the Prospectus for each respective
Trust Fund.
Securities
The securities, including Contract Securities listed in Schedule
A to the Trust Agreement or other securities that may be deposited in
a Trust Fund and any obligations received in exchange or substitution
for such securities, as may from time to time continue to be held as a
part of any Trust Fund.
Unit
The fractional undivided interest in and ownership of an
individual Trust Fund equal initially to 1/(the number of Units of
fractional undivided interest outstanding) provided in the Statement
of Condition in the Prospectus for a Trust Fund, the denominator of
which fraction shall be (1) increased by the number of any additional
Units issued pursuant to Section 2.03 hereof and (2) decreased by the
number of any such Units redeemed as provided in Section 5.02.
Whenever reference is made herein to the "interest" of a Unitholder in
a 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.
-2-
(f) The following shall be added at the end of the first
paragraph of subsection (a) of Section 5.03:
"The notice and form of election to be sent to Unitholders in respect
of any redemption and purchase of Units of a New Series as provided in this
section shall be in such form and shall be sent at such time or times as
the Depositor shall direct the Trustee in writing and the Trustee shall
have no responsibility therefor. The Distribution Agent acts solely as
disbursing agent in connection with purchases of Units pursuant to this
Section and nothing herein shall be deemed to constitute the Distribution
Agent a broker in such transactions."
(g) Article III of the Standard Terms and Conditions of Trust is
hereby amended to add the following section:
Section 3.14. License Fees. Pursuant to a Licensing Agreement
between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and the Depositor (the "▇▇▇▇▇▇▇
Agreement"), for the Nuveen Legacy 15-Month Portfolio, March 2000 and the
Nuveen Legacy Five-Year Portfolio, March 2000 (the "Trusts"), as
consideration for the licenses granted by ▇▇. ▇▇▇▇▇▇▇ for the right to use
her intellectual property rights relating to the Legacy Portfolio concept,
each Trust will pay the fees set forth in the ▇▇▇▇▇▇▇ Agreement to ▇▇.
▇▇▇▇▇▇▇ or the Depositor to reimburse the Depositor for payment of the
expenses.
If the ▇▇▇▇▇▇▇ Agreement provides for an annual license fee
computed in whole or in part by reference to the quarter-end asset balances
for each Trust, for purposes of calculating the accrual of estimated
expenses, such annual fee shall accrue at a daily rate and the Trustee is
authorized to compute an annual licensing fee payment (i) until the
quarter-end in which the Depositor has informed the Trustee that there will
be no further deposits of additional Securities, by reference to an
estimate of the quarter-end asset balances which the Depositor shall
provide the Trustee, and (ii) thereafter by reference to the previous
quarter-end asset balance of the applicable Trust. The Trustee shall adjust
the net asset value (Trust Fund Evaluation) as of the dates specified in
the preceding sentence to account for any variation between accrual of
estimated license fees and the license fees payable pursuant to the ▇▇▇▇▇▇▇
Agreement, but such adjustment shall not affect calculations made prior
thereto and no adjustment shall be made in respect thereof.
(h) The following subsection (d) shall be added to Section 7.02:
(d) The Depositor may employ agents in connection with its
duties under Section 3.11 and 3.13 hereof and shall not be answerable for
the default or misconduct of such agents if they shall have been selected
with reasonable care. The fees of such agents shall be reimbursable to the
Depositor from a Trust Fund, provided, however, that the amount of such
reimbursement in any year (i) shall reduce the amount payable to the
Depositor for such year with respect to the service in question and shall
not exceed the maximum amount payable to the Depositor for such service for
such year and (ii) if such agent is an affiliate of the Depositor, the
amount of the reimbursement, when combined with (a) all compensation
received by such agent from other series of the Fund or other unit
investment trusts sponsored by the Depositor or its affiliates and (b) the
amount payable to the Depositor from a Trust Fund and from other series
of the Fund or other unit investment trusts sponsored by the Depositor or
its affiliates in respect of the service in question, shall not exceed the
aggregate cost of such agent and the Depositor of providing such service.
The Trustee shall pay such reimbursement against the Depositor's invoice
therefor upon which the Trustee may rely as the Depositor's certification
that the amount claimed complies with the provisions of this paragraph.
(i) Section 4.01 shall be amended to read in its entirety as
follows:
Section 4.01. Evaluation of Securities. The Evaluator shall
determine separately and promptly furnish to the Trustee and the Depositor
upon request the value of each issue of Securities as of the Evaluation
Time as provided in the following manner:
(a) The Evaluator will prepare each evaluation for which market
quotations for the Securities are available by the use of outside services
normally used and contracted with for this purpose. If the Securities are listed
on a national securities exchange or The NASDAQ Stock Market, Inc., the
evaluation will be based on the closing sale price on the exchange or system (if
a Security is listed on the New York Stock Exchange, the closing sale price on
that exchange shall apply) or, if there is no closing sale price on the exchange
or system, at the closing bid price on the exchange or system. If such market
quotations are not available, the Evaluator shall determine the value of the
Securities. Such evaluation shall generally be based on the current bid prices
on the over-the-counter market (unless it is determined that these prices are
inappropriate as a basis for evaluation). If such prices are not available on
the over-the-counter market, the evaluation will generally be made by the
Evaluator in good faith (1) on the basis of the current bid prices for
comparable securities, (2) by the Evaluator's appraising the value of the
Securities in good faith at the bid side of the market or (3) by any combination
thereof. For each evaluation, the Evaluator shall also determine and furnish to
the Trustee and the Depositor the aggregate of (a) the value of all Securities
on the basis of such evaluation and (b) on the basis of the information
furnished to the Evaluator by the Trustee pursuant to Section 3.02, the amount
of cash then held in the Capital Account which was received by the Trustee after
the Record Date preceding such determination less any amounts held in the
Capital Account for distribution to Unitholders on a subsequent Distribution
Date when a Record Date occurs four business days or less after such
determination. For the purposes of the foregoing, the Evaluator may obtain
current prices for the Securities from investment dealers or brokers (including
the Depositor) that customarily deal in similar securities. With respect to any
Security not listed on a national exchange or The NASDAQ Stock Market, Inc., or,
with respect to a Security so listed but the Evaluator deems the closing sale
price on the relevant exchange to be inappropriate as a basis for valuation,
upon the Evaluator's request, the Depositor shall, from time to time, designate
one or more evaluation services or other sources of information on which the
Evaluator shall be authorized conclusively to rely in evaluating such Security,
and the Evaluator shall have no liability for any errors in the information so
received. The cost thereof shall be an expense reimbursable to the Evaluator
from the Income and Capital Accounts.
(b) Notwithstanding Section 4.01(a), except in those cases in
which the Securities are listed on a national securities exchange or The NASDAQ
Stock Market, Inc., and the closing sales prices are used and except for Trust
Fund Evaluations required by Section 5.02 in determining Redemption Price,
during the initial offering period, the evaluations of the Securities shall
generally be made in the manner described in Section 4.01(a) based on the
closing ask prices of the Securities rather than the closing bid prices.
(j) Section 5.01 shall be amended to read in its entirety as
follows:
Section 5.01. Trust Fund Evaluation. As of the Evaluation Time
next following any tender by a Unitholder for redemption and on any other
business day desired by it or as may be required hereunder, the Trustee shall as
to each Trust Fund:
Add
(1) cash on hand in the Trust Fund (other than cash held
especially for the purchase of Contract Securities) and moneys in the process of
being collected from declared dividends,
(2) the aggregate value of each issue of the Securities in the
Trust Fund (including Contract Securities) as determined by the Evaluator
pursuant to Section 4.01, and
(3) all other assets of the Trust;
Deduct
(1) amounts representing any applicable taxes, governmental
charges or other charges pursuant to Section 3.03 payable out of the Trust Fund
and for which no deductions shall have previously been made for the purpose of
addition to the Reserve Account,
(2) amounts representing estimated accrued fees and expenses of
the Trust Fund including but not limited to unpaid accrued Creation and
Development fees, unpaid fees and expenses of the Trustee (including legal and
auditing expenses), the Evaluator, the Depositor and counsel, and
(3) amounts representing unpaid accrued organization costs, and
(4) cash allocated for distribution to Unitholders of the Trust
Fund of record as of the business day prior to the evaluation then being made.
The resulting figure is herein called a "Trust Fund Evaluation."
Prior to the payment to the Depositor of its reimbursable
organization costs to be made at the earlier of six months after the Initial
Date of Deposit or the conclusion of the primary offering period in accordance
with Section 10.02, for purposes of determining the Trust Fund Evaluation under
this Section 5.01, the Trustee shall rely upon the amounts representing unpaid
accrued organization costs in the estimated amount per Unit set forth in the
Prospectus until such time as the Depositor notifies the Trustee in writing of a
revised estimated amount per Unit representing unpaid accrued organization
costs. Upon receipt of such notice, the Trustee shall use this revised estimated
amount per Unit representing unpaid accrued organization costs in determining
the Trust Fund Evaluation but such revision of the estimated expenses shall not
affect calculations made prior thereto and no adjustment shall be made in
respect thereof.
(k) Notwithstanding anything to the contrary contained in
Sections 3.04, 3.11, 3.13, 4.03 and 8.05, expenses of each Trust shall be paid
to the appropriate party on or about the 15th day of each month. Until the
Trustee is notified by the Depositor that the primary offering period has
terminated, the fees, where applicable, shall be accrued daily and based on the
number of Units outstanding on each day.
After the primary offering period has terminated, the fees, where applicable,
shall accrue daily and be based on the number of Units outstanding on the most
recent prior Income Record Date specified in the Prospectus or the number of
Units outstanding at the end of the initial offering period, as appropriate.
(l) Section 8.01(i) shall be amended to read in its entirety as
follows:
(i) Notwithstanding any provisions of this Agreement to the
contrary, no payment to a Depositor or to any principal underwriter (as defined
in the Investment Company Act of 1940) for each 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 (a) 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, and (b) such other amounts permitted under
the Investment Company Act of 1940.
(m) All references to the "NASDAQ National Market System" herein
and in the Standard Terms and Conditions of Trust shall be replaced with "The
NASDAQ Stock Market, Inc."
(n) Section 8.01 shall be amended to add the following as
paragraph (1):
(1) The Trustee except by reason of its own negligence or
willful misconduct shall not be liable for any action taken or suffered to be
taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
(o) Section 3.06 shall be amended to read in its entirety as
follows:
Section 3.06. Extraordinary Sale of Securities. If necessary, in order to
maintain the sound investment character of the Trust(s), the Depositor may
direct the Trustee to sell or liquidate Securities in such Trust at such price
and time and in such manner as shall be determined by the Depositor, provided
that the Depositor has determined that any one or more of the following
conditions exist:
(a) that there has been a default on any of the Securities in
the payment of dividends, after declared and when due and payable;
(b) that any action or proceeding has been instituted at law or
equity seeking to restrain or enjoin the payment of dividends on any such
Securities, or that there exists any legal question or impediment affecting
such Securities or the payment of dividends from the same;
(c) that there has occurred any breach of covenant or warranty
in any document relating to the issuer of the Securities which would
adversely affect either immediately or contingently the payment of
dividends from such Securities, or the general credit standing of the
issuer or otherwise impair the sound investment character of such
Securities;
(d) that there has been a default in the payment of dividends,
principal of or income or premium, if any, on any other outstanding
obligations of the issuer of such Securities;
(e) that the price of any such Securities had declined to such
an extent or other such credit factors exist so that in the opinion of the
Depositor, as evidenced in writing to the Trustee, the retention of such
Securities would be detrimental to the Trust Fund and to the interest of
the Unitholders;
(f) that the sale of Securities is necessary or advisable in
order to maintain the qualification of the Trust as a "regulated investment
company" in the case of a Trust which has elected to qualify as such; and
(g) that there has been a public tender offer made for a
Security or a merger or acquisition is announced affecting a Security, and
that in the opinion of the Sponsor the sale or tender of the Security is in
the best interest of the Unitholders.
Upon receipt of such direction from the Depositor, upon which the Trustee
shall rely, the Trustee shall proceed to sell or liquidate the specified
Securities in accordance with such direction, and upon the receipt of the
proceeds of any such sale or liquidation, after deducting therefrom any fees and
expenses of the Trustee connected with such sale or liquidation and any
brokerage charges, taxes or other governmental charges shall deposit such net
proceeds in the Capital Account.
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 or liquidate
any Securities under this Section 3.06 except to the extent otherwise required
by this Indenture. 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.
(p) The following Section 3.15 shall be added:
Section 3.15. Creation and Development Fee. If the Prospectus related to
the Trust(s) specifies a Creation and Development Fee, the Trustee shall, on the
last day of each month, withdraw from the Capital Account, an amount equal to
the accrued and unpaid Creation and Development Fee as of such date and credit
such amount to a special non-Trust account designated by the Depositor out of
which the Creation and Development Fee will be distributed to the Depositor (the
"Creation and Development Account"). The Creation and Development Fee will
accrue on a daily basis at an annual rate as set forth in the Prospectus for the
Trust(s) based on a percentage of the average daily net asset value of the
Trust(s). 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 Creation and
Development Account, provided, however, that the aggregate amount advanced by
the Trustee at any time for payment of the Creation and Development Fee shall
not exceed $15,000. Such direction shall, if the Trustee is directed to sell a
Security, identify the Security to be sold and include instructions as to the
execution of such sale. In the absence of such direction by the Depositor, the
Trustee shall sell Securities sufficient to pay the Creation and Development Fee
(and any unreimbursed advance then outstanding) in full, and shall select
Securities to be sold in such manner as will maintain (to the extent
practicable) the relative proportion of the number of shares of each Security
then held. The proceeds of such sales, less any amounts paid to the Trustee in
reimbursement of its advances, shall be credited to the Creation and Development
Account. If a Trust is terminated pursuant to Section 8.01(g), the Depositor
agrees to reimburse the Unitholders for any amounts of the Creation and
Development Fee collected by the Depositor to which it is not entitled. All
advances made by the Trustee pursuant to this Section shall be secured by a lien
on the Trust(s) prior to the interest of Unitholders. Notwithstanding the
foregoing, the Depositor shall not receive any amount of the Creation and
Development Fee which exceeds the maximum amount per Unit stated in the
Prospectus. The Depositor shall notify the Trustee not later than ten business
days prior to the date on which it anticipates that the maximum amount of the
Creation and Development Fee it may receive has been accrued and shall also
notify the Trustee as of the date when the maximum amount of the Creation and
Development Fee has been accrued. The Trustee shall have no responsibility or
liability for damages or loss resulting from any error in the information
provided by the Depositor, or the Depositor's Failure to provide the
information, specified in the preceding sentence. The Depositor agrees to
reimburse the Trust(s) and any Unitholder any amount of the Creation and
Development Fee it receives which exceeds the amount which the Depositor may
receive under applicable laws, regulations and rules.
-3-
In Witness Whereof, ▇▇▇▇ Nuveen & Co. Incorporated, has caused this
Trust Indenture and Agreement for Nuveen Unit Trusts, Series 82 to be executed
by its President, one of its Vice Presidents or one of its Assistant Vice
Presidents and its corporate seal to be hereto affixed and attested by its
Secretary or its Assistant Secretary and The Chase Manhattan Bank has caused
this Trust Indenture and Agreement to be executed by one of its Vice Presidents
or Second Vice Presidents and its corporate seal to be hereto affixed and
attested to by one of its Assistant Treasurers; all as of the day, month and
year first above written.
▇▇▇▇ Nuveen & Co. Incorporated,
Depositor
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Authorized Officer
(Seal)
Attest:
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Assistant Secretary
The Chase Manhattan Bank, Trustee
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Assistant Vice President
(Seal)
Attest:
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Assistant Treasurer
-4-
Schedule A to the Trust Indenture and Agreement
Securities Initially Deposited
in
Nuveen Unit Trusts, SERIES 82
(Note: Incorporated herein and made a part hereof is the "Schedule of
Investments" as set forth for the Trust(s) in the Prospectus.)
-5-