MEMORANDUM OF CHANGES
VAN KAMPEN AMERICAN CAPITAL EQUITY OPPORTUNITY TRUST, SERIES 96
The Prospectus filed with Amendment No. 1 of the Registration Statement
on Form S-6 has been revised to reflect information regarding the deposit of Van
Kampen American Capital Equity Opportunity Trust, Series 96 on April 16, 1998.
An effort has been made to set forth below each of the major changes and also to
reflect the same by blacklining the marked counterparts of the Prospectus
submitted with the Amendment.
Cover Page. The date of the Prospectus has been completed.
Page3. "The Summary of Essential Financial Information has been
completed.
Pages 5-8. Revisions have been made and the portfolio has been
completed.
Pages 25-29.The Report of Independent Certified Public Accountants
and Statement of Condition have been completed.
The "Portfolio" and the "Notes to Portfolio" sections have been completed.
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FILE NO. 333-48721
CIK #1025242
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
Amendment No. 1
to
Form S-6
For Registration under the Securities Act of 1933 of Securities of Unit
Investment Trusts Registered on Form N-8B-2.
A. Exact Name of Trust: VAN KAMPEN AMERICAN CAPITAL EQUITY
OPPORTUNITY TRUST, SERIES 96
B. Name of Depositor: VAN KAMPEN AMERICAN CAPITAL DISTRIBUTORS, INC.
C. Complete address of Depositor's principal executive offices:
One Parkview Plaza
Oakbrook Terrace, Illinois 60181
D. Name and complete address of agents for service:
CHAPMAN AND CUTLER VAN KAMPEN AMERICAN CAPITAL DISTRIBUTORS, INC.
Attention: Mark J. Kneedy Attention: Don G. Powell, Chairman
111 West Monroe Street One Parkview Plaza
Chicago, Illinois 60603 Oakbrook Terrace, Illinois 60181
E. Title of securities being registered: Units of proportionate interest
F. Approximate date of proposed sale to the public:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THE
REGISTRATION STATEMENT
/ X /Check box if it is proposed that this filing will become effective at
- ---- 2:00 p.m. on April 16, 1998 pursuant to Rule 487.
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VAN KAMPEN AMERICAN CAPITAL EQUITY OPPORTUNITY TRUST
SERIES 96
CROSS REFERENCE SHEET
PURSUANT TO RULE 404(C) OF REGULATION C
UNDER THE SECURITIES ACT OF 1933
(FORM N-8B-2 ITEMS REQUIRED BY INSTRUCTION
1 AS TO PROSPECTUS ON FORM S-6)
FORM N-8B-2 FORM S-6
ITEM NUMBER HEADING IN PROSPECTUS
I. ORGANIZATION AND GENERAL INFORMATION
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1. (a) Name of trust ) Prospectus Front Cover Page
(b) Title of securities issued ) Prospectus Front Cover Page
2. Name and address of Depositor ) Summary of Essential Financial
) Information
) Trust Administration
3. Name and address of Trustee ) Summary of Essential Financial
) Information
) Trust Administration
4. Name and address of principal ) *
underwriter
5. Organization of trust ) The Trust
6. Execution and termination of ) The Trust
Trust Indenture and Agreement ) Trust Administration
7. Changes of Name ) *
8. Fiscal year ) *
9. Material Litigation ) *
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II. GENERAL DESCRIPTION OF THE TRUST AND
SECURITIES OF THE TRUST
10. General information regarding ) The Trust
trust's securities and ) Federal Taxation
rights of security holders ) Public Offering
) Rights of Unitholders
) Trust Administration
11. Type of securities comprising ) Prospectus Front Cover Page
units ) The Trust
) Trust Portfolio
12. Certain information regarding ) *
periodic payment certificates )
13. (a) Loan, fees, charges and expenses ) Prospectus Front Cover Page
) Summary of Essential Financial
) Information
) Trust Portfolio
)
) Trust Operating Expenses
) Public Offering
) Rights of Unitholders
(b) Certain information regarding )
periodic payment plan ) *
certificates )
(c) Certain percentages ) Prospectus Front Cover Page
) Summary of Essential Financial
) Information
)
) Public Offering
) Rights of Unitholders
(d) Certain other fees, expenses or ) Trust Operating Expenses
charges payable by holders ) Rights of Unitholders
(e) Certain profits to be received ) Public Offering
by depositor, principal ) *
underwriter, trustee or any ) Trust Portfolio
affiliated persons )
(f) Ratio of annual charges ) *
to income )
14. Issuance of trust's securities ) Rights of Unitholders
15. Receipt and handling of payments ) *
from purchasers )
16. Acquisition and disposition of ) The Trust
underlying securities ) Rights of Unitholders
) Trust Administration
17. Withdrawal or redemption ) Rights of Unitholders
) Trust Administration
18. (a) Receipt and disposition ) Prospectus Front Cover Page
of income ) Rights of Unitholders
(b) Reinvestment of distributions ) *
(c) Reserves or special Trusts ) Trust Operating Expenses
) Rights of Unitholders
(d) Schedule of distributions ) *
19. Records, accounts and reports ) Rights of Unitholders
) Trust Administration
20. Certain miscellaneous provisions ) Trust Administration
of Trust Agreement )
21. Loans to security holders ) *
22. Limitations on liability ) Trust Portfolio
) Trust Administration
23. Bonding arrangements ) *
24. Other material provisions of ) *
Trust Indenture Agreement )
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III. ORGANIZATION, PERSONNEL AND AFFILIATED
PERSONS OF DEPOSITOR
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25. Organization of Depositor ) Trust Administration
26. Fees received by Depositor ) *
27. Business of Depositor ) Trust Administration
28. Certain information as to ) *
officials and affiliated )
persons of Depositor )
29. Companies owning securities ) *
of Depositor )
30. Controlling persons of Depositor ) *
31. Compensation of Officers of ) *
Depositor )
32. Compensation of Directors ) *
33. Compensation to Employees ) *
34. Compensation to other persons ) *
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IV. DISTRIBUTION AND REDEMPTION OF SECURITIES
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35. Distribution of trust's securities ) Public Offering
by states )
36. Suspension of sales of trust's ) *
securities )
37. Revocation of authority to ) *
distribute )
38. (a) Method of distribution )
)
(b) Underwriting agreements ) Public Offering
)
(c) Selling agreements )
39. (a) Organization of principal ) *
underwriter )
(b) N.A.S.D. membership by ) *
principal underwriter )
40. Certain fees received by ) *
principal underwriter )
41. (a) Business of principal ) Trust Administration
underwriter )
(b) Branch offices or principal ) *
underwriter )
(c) Salesmen or principal ) *
underwriter )
42. Ownership of securities of ) *
the trust )
43. Certain brokerage commissions ) *
received by principal underwriter )
44. (a) Method of valuation ) Prospectus Front Cover Page
) Summary of Essential Financial
) Information
) Trust Operating Expenses
) Public Offering
(b) Schedule as to offering ) *
price )
(c) Variation in offering price ) *
to certain persons )
46. (a) Redemption valuation ) Rights of Unitholders
) Trust Administration
(b) Schedule as to redemption ) *
price )
47. Purchase and sale of interests ) Public Offering
in underlying securities ) Trust Administration
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V. INFORMATION CONCERNING THE TRUSTEE OR CUSTODIAN
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48. Organization and regulation of ) Trust Administration
Trustee )
49. Fees and expenses of Trustee ) Summary of Essential Financial
) Information
) Trust Operating Expenses
50. Trustee's lien ) Trust Operating Expenses
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VI. INFORMATION CONCERNING INSURANCE OF HOLDERS OF SECURITIES
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51. Insurance of holders of trust's ) Cover Page
securities ) Trust Operating Expenses
52. (a) Provisions of trust agreement )
with respect to replacement ) Trust Administration
or elimination portfolio )
securities )
(b) Transactions involving )
elimination of underlying ) *
securities )
(c) Policy regarding substitution )
or elimination of underlying ) Trust Administration
securities )
(d) Trustamental policy not ) *
otherwise covered )
53. Tax Status of trust ) Federal Taxation
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VII. FINANCIAL AND STATISTICAL INFORMATION
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54. Trust's securities during ) *
last ten years )
55. )
56. Certain information regarding ) *
57. periodic payment certificates )
58. )
59. Financial statements (Instructions ) Report of Independent Certified
1(c) to Form S-6) ) Public Accountants
) Statement of Condition
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* Inapplicable, omitted, answer negative or not required
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April 16, 1998
Van Kampen American Capital
REITIncome and Growth Trust, Series 2
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The Fund. Van Kampen American Capital Equity Opportunity Trust, Series 96 (the
"Fund") is comprised of one unit investment trust, REITIncome and Growth Trust,
Series 2 (the "Trust"). The Trust offers investors the opportunity to purchase
Units representing proportionate interests in a fixed portfolio of equity
securities issued by publicly traded real estate investment trusts ("Equity
Securities" or "Securities"). See "Trust Portfolio". Unless terminated earlier,
the Trust will terminate on April 16, 2001 and any Securities then held will,
within a reasonable time thereafter, be liquidated or distributed by the
Trustee. Any Securities liquidated at termination will be sold at the then
current market value for such Securities; therefore, the amount distributable in
cash to a Unitholder upon termination may be more or less than the amount such
Unitholder paid for his Units.
Attention Foreign Investors. If you are not a United States citizen or resident,
distributions will generally be subject to U.S. federal withholding taxes;
however, under certain circumstances treaties between the United States and
other countries may reduce or eliminate such withholding tax. See "Federal
Taxation." Such investors should consult their tax advisers regarding the
imposition of U.S. withholding on distributions.
Objective of the Trust. The objective of the Trust is to provide the potential
for high current income and capital appreciation by investing in a portfolio of
equity securities issued by publicly traded real estate investment trusts. See
"Objective and Securities Selection." There is, of course, no guarantee that the
objective of the Trust will be achieved.
Public Offering Price. The Public Offering Price of the Units of the Trust
includes the aggregate underlying value of the Securities in the Trust's
portfolio and cash, if any, in the Income and Capital Accounts held or owned by
the Trust. No sales charge is imposed on Units created on the Initial Date of
Deposit. If Units were available for purchase at the close of business on the
day before the Initial Date of Deposit, the Public Offering Price per Unit would
have been that amount set forth under "Summary of Essential Financial
Information". For sales charges in the secondary market, see "Public Offering."
The minimum purchase is 100 Units (25 Units for tax-sheltered retirement plans)
but may vary by selling firm. See "Public Offering."
Dividend and Capital Distributions. Distributions of dividends and capital, if
any, received by the Trust will be paid in cash on the applicable Distribution
Date to Unitholders of record on the record date as set forth in the "Summary of
Essential Financial Information." The initial estimated distribution will be
$.06 per Unit and will be made on June 25, 1998 to Unitholders of record on June
10, 1998. Any distribution of income and/or capital will be net of the expenses
of the Trust. Additionally, upon termination of the Trust, the Trustee will
distribute, upon surrender of Units for redemption, to each Unitholder his pro
rata share of the Trust's assets, less expenses, in the manner set forth under
"Rights of Unitholders--Distributions of Income and Capital."
Units of the Trust are not insured by the FDIC, are not deposits or other
obligations of, or guaranteed by, any depository institution or any government
agency and are subject to investment risk, including possible loss of the
principal amount invested.
- --------------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE
Secondary Market for Units. After the initial offering period, although not
obligated to do so, the Sponsor intends to maintain a market for Units of the
Trust and offer to repurchase such Units at prices which are based on the
aggregate underlying value of Equity Securities in the Trust (generally
determined by the closing sale or bid prices of the Securities) plus or minus
cash, if any, in the Capital and Income Accounts of the Trust. If a secondary
market is maintained during the initial offering period, the prices at which
Units will be repurchased will be based upon the aggregate underlying value of
the Equity Securities in the Trust (generally determined by the closing sale or
asked prices of the Securities) plus or minus cash, if any, in the Capital and
Income Accounts of the Trust. If a secondary market is not maintained, a
Unitholder may redeem Units through redemption at prices based upon the
aggregate underlying value of the Equity Securities in the Trust plus or minus a
pro rata share of cash, if any, in the Capital and Income Accounts of the Trust.
A Unitholder tendering 1,000 or more Units for redemption may request a
distribution of shares of Securities (reduced by customary transfer and
registration charges) in lieu of payment in cash. See "Rights of
Unitholders--Redemption of Units."
Termination. Commencing on the Mandatory Termination Date Equity Securities will
begin to be sold in connection with the termination of the Trust. The Sponsor
will determine the manner, timing and execution of the sale of the Equity
Securities. Written notice of any termination of the Trust specifying the time
or times at which Unitholders may surrender their certificates for cancellation
shall be given by the Trustee to each Unitholder at his address appearing on the
registration books of the Trust maintained by the Trustee. At least 30 days
prior to the Mandatory Termination Date the Trustee will provide written notice
thereof to all Unitholders and will include with such notice a form to enable
Unitholders to elect a distribution of shares of Equity Securities if such
Unitholder owns at least 1,000 Units of the Trust, rather than to receive
payment in cash for such Unitholder's pro rata share of the amounts realized
upon the disposition by the Trustee of Equity Securities. All Unitholders will
receive cash in lieu of any fractional shares. To be effective, the election
form, together with surrendered certificates if issued, and other documentation
required by the Trustee, must be returned to the Trustee at least five business
days prior to the Mandatory Termination Date. Unitholders not electing a
distribution of shares of Equity Securities will receive a cash distribution
from the sale of the remaining Securities within a reasonable time after the
Trust is terminated. See "Trust Administration--Amendment or Termination."
Reinvestment Option. Unitholders of any Van Kampen American Capital-sponsored
unit investment trust may utilize their redemption or termination proceeds to
purchase units of any other Van Kampen American Capital trust in the initial
offering period accepting rollover investments subject to a reduced sales charge
to the extent stated in the related prospectus (which may be deferred in certain
cases). Unitholders also have the opportunity to have their distributions
reinvested into additional Units of the Trust, if Units are available at the
time of reinvestment, or into an open-end management investment company as
described herein. See "Rights of Unitholders--Reinvestment Option."
Risk Factors. An investment in the Trust should be made with an understanding of
the risks associated therewith, including the possible deterioration of the
financial condition of the issuers, the general condition of the stock market,
volatile interest rates, the relative lack of diversification in the portfolio
and risks related to an investment in real estate investment trusts. See "Risk
Factors."
Summary of Essential Financial Information
At the Close of Business on the day before the Initial Date of Deposit:
April 15, 1998
Sponsor: Van Kampen American Capital Distributors, Inc.
Supervisor: Van Kampen American Capital Investment Advisory Corp.
Evaluator: American Portfolio Evaluation Services
(A division of an affiliate of the Sponsor)
Trustee: The Bank of New York
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<S> <C>
Number of Units (1) 11,677
Fractional Undivided Interest in the Trust per Unit (1) 1/11,677
Public Offering Price:
Aggregate Value of Securities in Portfolio (2) $ 116,763
Aggregate Value of Securities per Unit $ 10.00
Sales Charge (3) $ 0.00
Public Offering Price Per Unit (3)(4)(5) $ 10.00
Redemption Price per Unit $ 10.00
Secondary Market Repurchase Price per Unit $ 10.00
Excess of Public Offering Price per Unit over Redemption Price per Unit $ 0.00
Supervisor's Annual Supervisory Fee Maximum of $.0025 per Unit
Evaluator's Annual Evaluation Fee Maximum of $.0025 per Unit
Evaluation Time Close of the New York Stock Exchange
Mandatory Termination Date April 16, 2001
Minimum Termination Value The Trust may be terminated if the net asset value of the Trust is less
than $500,000 unless the net asset value of the Trust deposits has exceeded
$15,000,000, then the Trust Agreement may be terminated if the net asset
value of the Trust is less than $3,000,000.
Calculation of Estimated Net Annual Dividends
per Unit (6)
Estimated Gross Annual Dividends per Unit $.61093
Less: Estimated Annual Expense per Unit $.01799
Estimated Net Annual Dividends per Unit $.59294
Trustee's Annual Fee $.008 per Unit
Estimated Annual Organizational Expenses per Unit (7) $.00366
Income Distribution Record Date Tenth day of March, June, September and December
Income Distribution Date Twenty-fifth of March, June, September and December
Capital Account Record Date Tenth day of December
Capital Account Distribution Date Twenty-fifth day of December
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(1)As of the close of business on any day on which the Sponsor is the sole
Unitholder of the Trust, the number of Units may be adjusted so that the Public
Offering Price per Unit will equal approximately $10. Therefore, to the extent
of any such adjustment the fractional undivided interest per Unit will increase
or decrease from the amount indicated above.
(2)Each Equity Security listed on a national securities exchange is valued at
the closing sale price or, if the Equity Security is not listed, at the closing
ask price thereof.
(3) No sales charge will be assessed on the purchase of Units created on the
Initial Date of Deposit.
(4)On the Initial Date of Deposit there will be no cash in the Income or Capital
Accounts. Anyone ordering Units after such date will have included in the Public
Offering Price a pro rata share of any cash in such Accounts.
(5)The Public Offering Price of Units repurchased and sold in the secondary
market will include a sales charge of 3.25% of the Public Offering Price, which
will be reduced by .5 of 1% on April 16, 1999 to 2.75%. See "Public Offering."
(6)Estimated annual dividends are based on annualizing the most recently
declared dividends. Estimated Net Annual Dividends per Unit are based on the
estimated Trust expenses, the number of Units, the fractional undivided interest
in the Securities per Unit and the aggregate value of the Securities per Unit as
of the Initial Date of Deposit. Investors should note that the actual annual
dividends received per Unit will vary from the estimated amount due to changes
in the factors described in the preceding sentence and actual dividends declared
and paid by the issuers of the Securities.
(7)The Trust (and therefore Unitholders) will bear all or a portion of its
organizational costs (including costs of preparing the registration statement,
the trust indenture and other closing documents, registering Units with the
Securities and Exchange Commission and states, the initial audit of the
portfolio and the initial fees and expenses of the Trustee but not including the
expenses incurred in the preparation and printing of brochures and other
advertising material and any other selling expenses) as is common for mutual
funds. Total organizational expenses will be amortized over the life of the
Trust. See "Trust Operating Expenses" and "Statement of Condition."
Historically, the sponsors of unit investment trusts have paid all the costs of
establishing such trusts.
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THE TRUST
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Van Kampen American Capital Equity Opportunity Trust, Series 96 is comprised of
one unit investment trust, REITIncome and Growth Trust, Series 2. The Trust was
created under the laws of the State of New York pursuant to a Trust Indenture
and Agreement (the "Trust Agreement"), dated the date of this Prospectus (the
"Initial Date of Deposit"), among Van Kampen American Capital Distributors,
Inc., as Sponsor, American Portfolio Evaluation Services, a division of Van
Kampen American Capital Investment Advisory Corp., as Evaluator, Van Kampen
American Capital Investment Advisory Corp., as Supervisor, and The Bank of New
York, as Trustee.
The Trust offers investors the opportunity to purchase Units representing
proportionate interests in a portfolio of actively traded equity securities
issued by real estate investment trusts ("REITs"). Diversification of assets in
the Trust will not eliminate the risk of loss always inherent in the ownership
of securities.
On the Initial Date of Deposit, the Sponsor deposited with the Trustee the
Securities indicated under "Portfolio" herein, including delivery statements
relating to contracts for the purchase of certain such Securities and an
irrevocable letter of credit issued by a financial institution in the amount
required for such purchases. Thereafter, the Trustee, in exchange for such
Securities (and contracts) so deposited, delivered to the Sponsor documentation
evidencing the ownership of that number of Units of the Trust indicated in
"Summary of Essential Financial Information." Unless otherwise terminated as
provided in the Trust Agreement, the Trust will terminate on the Mandatory
Termination Date and Securities then held will within a reasonable time
thereafter be liquidated or distributed by the Trustee.
Additional Units of the Trust may be issued at any time by depositing in the
Trust (i) additional Securities, (ii) contracts to purchase securities together
with cash or irrevocable letters of credit or (iii) cash (or a letter of credit)
with instructions to purchase additional Securities. As additional Units are
issued by the Trust as a result of the deposit of additional Securities, the
aggregate value of the Securities in the Trust will be increased and the
fractional undivided interest in the Trust represented by each Unit will be
decreased. The Sponsor may continue to make additional deposits of Securities or
cash with instructions to purchase Securities into the Trust following the
Initial Date of Deposit, provided that such additional deposits will be in
amounts which will maintain, as nearly as practicable, the same percentage
relationship among each Equity Security in the Trust's portfolio. Any deposit of
additional Equity Securities will duplicate, as nearly as practicable, this
actual proportionate relationship and not the original proportionate
relationship. Any such difference may be due to the sale, redemption or
liquidation of any of the Equity Securities deposited in the Trust on the
initial, or any subsequent, Date of Deposit. If the Sponsor deposits cash,
however, existing and new investors may experience a dilution of their
investments and a reduction in their anticipated income because of fluctuations
in the prices of the Securities between the time of the cash deposit and the
purchase of the Securities and because the Trust will pay the associated
brokerage fees.
During the day on the Initial Date of Deposit, it is expected that additional
Securities will be deposited in the Trust by the Sponsor. The Sponsor will
acquire these additional Securities from Legg Mason Wood Walker, Incorporated
("Legg Mason"), which is acting as sole underwriter to the issuers of the
Securities. The acquisition of the Securities to be deposited in the Trust
during the day on the Initial Date of Deposit by Legg Mason and the Sponsor is
expected to be effected at prices of up to 5% below the current market value of
the Securities due to factors, including size of the purchase, expectation of
holding period and cost of issuance. As a result of the Sponsor's ability to
purchase these Securities during the day on the Initial Date of Deposit below
market value, the Sponsor will offer Units created on the Initial Date of
Deposit with no sales charge. By virtue of buying the Securities at below market
prices during the day on the Initial Date of Deposit, the Sponsor will realize a
profit on the deposit of these Securities of up to 4% of the market value of
these Securities, less concessions due to dealers and others. The underwriter of
the Securities, who also acts as a dealer of Units, will realize a profit on the
sale of the Securities to the Sponsor equal to the difference between the
underwriter's acquisition cost of such Securities and the sale price of the
Securities to the Sponsor (expected to be up to 1% of the market value of the
Securities).
Each Unit of the Trust initially offered represents an undivided interest in the
Trust. To the extent that any Units are redeemed by the Trustee or additional
Units are issued as a result of additional Securities being deposited by the
Sponsor, the fractional undivided interest in the Trust represented by each
unredeemed Unit will increase or decrease accordingly, although the actual
interest in the Trust represented by such fraction will remain unchanged. Units
will remain outstanding until redeemed upon tender to the Trustee by
Unitholders, which may include the Sponsor, or until the termination of the
Trust Agreement.
OBJECTIVES AND SECURITIES SELECTION
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The objective of the Trust is to provide the potential for high current income
and capital appreciation. The portfolio is described under "Trust Portfolio" and
in "Portfolio". The Securities were identified by Legg Mason in accordance with
portfolio weighting and diversification criteria specified by the Sponsor and
the selections were approved by the Sponsor. The Securities were selected from a
list of REIT companies from materials provided by the Sponsor and Legg Mason.
Over the five year period ended in 1997, the total market capitalization of
REITs grew from approximately $16 billion to nearly $141 billion according to
NAREIT, which still represents only about 5% of U.S. real estate ownership.
Recently, the Real Estate Investment Trust Simplification Act of 1997 was
enacted and is generally thought to ease restrictions on REITs to allow for
greater efficiency and competitiveness. Declining vacancy rates and stable
rental income have helped many equity REIT companies better position themselves
for additional growth in the future. REIT managers are often experts in the
regions or types of properties owned by their REITs and tend to have equity
ownership interests in REITs. Over the period from December 31, 1972 through
December 31, 1997, a $10,000 investment in REITs (as measured by the National
Association of Real Estate Investment Trusts Index ("NAREIT Index")) would have
grown to $279,679 while a similar investment in the Dow Jones Industrial Average
stocks and the S&P 500 Index would have grown to $212,597 and $206,088,
respectively. The average annual total return of the NAREIT Index for the most
recent 1, 3, 5, 10, 20 and 25 years ended December 31, 1997, was 20.3%, 23.3%,
18.3%, 14.2%, 16.0% and 14.3%. The average annual total return of the S&P 500
Index for the most recent 1, 3, 5, 10, 20 and 25 years ended December 31, 1997,
was 33.1%, 30.8%, 20.0%, 17.8%, 16.4% and 12.9%. In addition, by including an
investment in REITs in an equity investment portfolio, an investor may be able
to achieve a better risk/reward allocation than an investment in non-REIT
equities alone. For example, an investment allocation of 50% in the NAREIT Index
stocks and 50% in the S&P 500 Index stocks over the past 25 years would have
provided a more efficient risk/reward balance than an investment only in the S&P
500 Index stocks. The Trust portfolio is much less diversified than the
NAREITIndex and will have investment results that differ from these indices. The
table below compares the dividend yield of the stocks in the NAREIT Index with
the dividend yield of the S&P 500 Index and S&P Utility Index stocks, the yield
to maturity of 10-year U.S. Treasury bonds and inflation as measured by the
Consumer Price Index over the period December 31, 1987 through December 31, 1997
(as of December 31 in each year).
<TABLE>
<CAPTION>
S&P 500 Index S&P Utility Index 10-yr US Treasury Bond Consumer Price Index NAREIT Equity Index
<S> <C> <C> <C> <C> <C>
1987 3.59% 7.29% 8.99% 4.40% 8.73%
1988 3.59% 6.82% 9.11% 4.40% 8.57%
1989 3.23% 5.45% 7.84% 4.60% 8.42%
1990 3.78% 6.27% 8.08% 6.10% 10.15%
1991 2.91% 5.80% 7.09% 3.10% 7.85%
1992 2.78% 5.68% 6.77% 2.90% 7.10%
1993 2.65% 5.28% 5.77% 2.70% 6.81%
1994 2.90% 5.92% 7.81% 2.70% 7.67%
1995 2.30% 4.74% 5.71% 2.50% 7.37%
1996 2.04% 5.19% 6.30% 3.30% 6.05%
1997 1.63% 4.43% 5.81% 1.70% 5.48%
</TABLE>
The past performance of the equity REITs set forth above is not representative
of the expected performance of the Trust, which contains a significantly less
diversified portfolio of REITs. In addition, past performance is no guarantee of
future results. An investment in equity REITs provides only commercial real
estate industry exposure which is characterized by a lack of relative
diversification as compared to an investment in all of the common stocks which
comprise a stock index. Although there can be no assurance that the Trust will
achieve its objective, equity investments have generally outperformed most other
asset classes over the long term. Of course, past performance is no guarantee of
future results.
General. An investor will be subject to taxation on the dividend income received
from the Trust and on gains from the sale or liquidation of Securities (see
"Federal Taxation"). Investors should be aware that there is not any guarantee
that the objectives of the Trust will be achieved because they are subject to
the continuing ability of the respective Security issuers to continue to declare
and pay dividends and because the market value of the Securities can be affected
by a variety of factors. Common stocks may be especially susceptible to general
stock market movements and to volatile increases and decreases of value as
market confidence in and perceptions of the issuers change. Investors should be
aware that there can be no assurance that the value of the underlying Securities
will increase or that the issuers of the Equity Securities will pay dividends on
outstanding common shares. Any distributions of income will generally depend
upon the declaration of dividends by the issuers of the Securities and the
declaration of any dividends depends upon several factors including the
financial condition of the issuers and general economic conditions.
Investors should note that the above criteria were applied to the Equity
Securities selected for inclusion in the Trust as of the Initial Date of
Deposit. Subsequent to the Initial Date of Deposit, the Securities may no longer
meet such criteria. Should an Equity Security no longer meet such criteria, such
Equity Security will not, simply as a result of such fact, be removed from the
portfolio of the Trust.
Investors should be aware that the Trust is not a "managed" fund and as a result
the adverse financial condition of a company will not result in its elimination
from the portfolio except under extraordinary circumstances (see "Trust
Administration--Portfolio Administration"). In addition, Securities will not be
sold by the Trust to take advantage of market fluctuations or changes in
anticipated rates of appreciation. Investors should note in particular that the
Securities were selected by the Sponsor as of the Initial Date of Deposit. The
Trust may continue to purchase or hold Securities originally selected through
this process even though the evaluation of the attractiveness of the Securities
may have changed and, if the evaluation were performed again at that time, the
Securities would not be selected for the Trust.
TRUST PORTFOLIO
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The Trust consists of 5 different issues of Equity Securities issued by publicly
traded real estate investment trusts. All of the Equity Securities are listed on
a national securities exchange, the NASDAQ National Market System or are traded
in the over-the-counter market. The following is a general description of each
of the companies included in the Trust.
Brandywine Realty Trust. Brandywine Realty Trust is a self-administered,
self-managed and fully integrated real estate investment trust. The company is
engaged in the ownership, management, leasing, acquistion and development of
primarily suburban office properties. It also owns an interest in and operates a
commercial real estate management services company.
BRE Properties, Inc. BRE Properties, Inc. is a real estate investment trust
which owns income-producing properties and mortgages. The REIT's portfolio
consists of apartment complexes, shopping centers, light industrial buildings,
warehouse/distribution centers and office buildings. The properties are located
in California, Washington, Arizona, Oregon and Nevada.
Highwoods Properties, Inc. Highwoods Properties, Inc. with its operating
partnership and subsidiaries, develops, manages, leases and acquires suburban
office and industrial properties. Highwoods has expanded into markets throughout
the southeastern United States.
Hospitality Properties Trust. Hospitality Properties Trust is a real estate
investment trust (`REIT') which acquires, owns and leases hotel properties
throughout the United States. The trust owns "Courtyard by Marriot" hotels which
are managed by HRPT advisors.
Kimco Realty Corporation. Kimco Realty Corporation is a real estate investment
trust which owns and operates neighborhood and community shopping centers. These
shopping centers are generally anchored by supermarkets, department stores or
drug stores. The company also provides management services for shopping centers
owned by affiliated entities various real estate joint ventures.
General. The Trust consists of (a) the Securities listed under "Portfolio" as
may continue to be held from time to time in the Trust, (b) any additional
Securities acquired and held by the Trust pursuant to the provisions of the
Trust Agreement and (c) any cash held in the Income and Capital Accounts.
Neither the Sponsor nor the Trustee shall be liable in any way for any failure
in any of the Securities. However, should any contract for the purchase of any
of the Securities initially deposited hereunder fail, the Sponsor will, unless
substantially all of the moneys held in the Trust to cover such purchase are
reinvested in substitute Securities in accordance with the Trust Agreement,
refund the cash and sales charge attributable to such failed contract to all
Unitholders on the next distribution date.
Because certain of the Equity Securities from time to time may be sold under
certain circumstances described herein, and because the proceeds from such
events will in most cases be distributed to Unitholders and will not be
reinvested, no assurance can be given that the Trust will retain for any length
of time its present size and composition. Although the portfolio is not managed,
the Sponsor may instruct the Trustee to sell Equity Securities under certain
limited circumstances. See "Trust Administration--Portfolio Administration."
Equity Securities, however, will not be sold by the Trust to take advantage of
market fluctuations or changes in anticipated rates of appreciation or
depreciation.
RISK FACTORS
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General. An investment in Units should be made with an understanding of the
risks which an investment in common stocks entails, including the risk that the
financial condition of the issuers of the Equity Securities or the general
condition of the common stock market may worsen and the value of the Equity
Securities and therefore the value of the Units may decline. Common stocks are
especially susceptible to general stock market movements and to volatile
increases and decreases of value as market confidence in and perceptions of the
issuers change. These perceptions are based on unpredictable factors including
expectations regarding government economic, monetary and fiscal policies,
inflation and interest rates, economic expansion or contraction, global or
regional political, economic or banking crises. Shareholders of common stocks
have rights to receive payments from the issuers of those common stocks that are
generally subordinate to those of creditors of, or holders of debt obligations
or preferred stocks of, such issuers. Shareholders of common stocks of the type
held by the Trust have a right to receive dividends only when and if, and in the
amounts, declared by the issuer's board of directors and have a right to
participate in amounts available for distribution by the issuer only after all
other claims on the issuer have been paid or provided for. Common stocks do not
represent an obligation of the issuer and, therefore, do not offer any assurance
of income or provide the same degree of protection of capital as do debt
securities. The issuance of additional debt securities or preferred stock will
create prior claims for payment of principal, interest and dividends which could
adversely affect the ability and inclination of the issuer to declare or pay
dividends on its common stock or the rights of holders of common stock with
respect to assets of the issuer upon liquidation or bankruptcy. The value of
common stocks is subject to market fluctuations for as long as the common stocks
remain outstanding, and thus the value of the Equity Securities in the portfolio
may be expected to fluctuate over the life of the Trust to values higher or
lower than those prevailing on the Initial Date of Deposit or at the time a
Unitholder purchases Units.
Holders of common stocks incur more risk than holders of preferred stocks and
debt obligations because common stockholders, as owners of the entity, have
generally inferior rights to receive payments from the issuer in comparison with
the rights of creditors of, or holders of debt obligations or preferred stocks
issued by, the issuer. Cumulative preferred stock dividends must be paid before
common stock dividends and any cumulative preferred stock dividend omitted is
added to future dividends payable to the holders of cumulative preferred stock.
Preferred stockholders are also generally entitled to rights on liquidation
which are senior to those of common stockholders.
Whether or not the Equity Securities are listed on a national securities
exchange, the principal trading market for the Equity Securities may be in the
over-the-counter market. As a result, the existence of a liquid trading market
for the Equity Securities may depend on whether dealers will make a market in
the Equity Securities. There can be no assurance that a market will be made for
any of the Equity Securities, that any market for the Equity Securities will be
maintained or of the liquidity of the Equity Securities in any markets made. In
addition, the Trust may be restricted under the Investment Company Act of 1940
from selling Equity Securities to the Sponsor. The price at which the Equity
Securities may be sold to meet redemptions, and the value of the Trust, will be
adversely affected if trading markets for the Equity Securities are limited or
absent.
The Trust Agreement authorizes the Sponsor to increase the size of each Trust
and the number of Units thereof by the deposit of additional Securities, or cash
(or a letter of credit) with instructions to purchase additional Securities, in
the Trust and the issuance of a corresponding number of additional Units. If the
Sponsor deposits cash, existing and new investors may experience a dilution of
their investments and a reduction in their anticipated income because of
fluctuations in the prices of the Securities between the time of the cash
deposit and the purchase of the Securities and because each Trust will pay the
associated brokerage fees.
Unitholders will be unable to dispose of any of the Equity Securities in the
portfolio, as such, and will not be able to vote the Equity Securities. As the
holder of the Equity Securities, the Trustee will have the right to vote all of
the voting stocks in the Trust and will vote such stocks in accordance with the
instructions of the Sponsor. In the absence of any such instructions by the
Sponsor, the Trustee will vote such stocks so as to insure that the stocks are
voted as closely as possible in the same manner and the same general proportion
as are shares held by owners other than the Trust.
Like other investment companies, financial and business organizations and
individuals around the world, the Trust could be adversely affected if the
computer systems used by the Sponsor, Evaluator, Supervisor or Trustee or other
service providers to the Trust do not properly process and calculate
date-related information and data from and after January 1, 2000. This is
commonly known as the "Year 2000 Problem." The Sponsor, Evaluator, Supervisor
and Trustee are taking steps that they believe are reasonably designed to
address the Year 2000 Problem with respect to computer systems that they use and
to obtain reasonable assurances that comparable steps are being taken by the
Trust's other service providers. At this time, however, there can be no
assurance that these steps will be sufficient to avoid any adverse impact to the
Trust.
The Year 2000 Problem is expected to impact corporations, which may include
issuers of Securities contained in the Trust, to varying degrees based upon
various factors, including, but not limited to,their industry sector and degree
of technological sophistication. The Sponsor is unable to predict what impact,
if any, the Year 2000 Problem will have on issuers of the Securities contained
in the Trust.
REITRisk Factors. The Trust is concentrated in REIT issuers. A portfolio
concentrated in a single industry may present more risk than a portfolio of more
broadly diversified investments. The Trust, and therefore Unitholders, may be
particularly susceptible to a negative impact resulting from adverse market
conditions or other factors affecting REITs because any negative impact on the
REIT or real estate industry will not be diversified among issuers within other
unrelated industries. In addition, due to the relative lack of diversity in the
portfolio in terms of number of issuers, a Unitholder may incur additional risk
compared to an investment in a more diversified portfolio. Accordingly, an
investment in the Trust should be made with an understanding of the risks
inherent in an investment in REITs specifically and in real estate generally (in
addition to securities market risks).
REITs are financial vehicles that have as their objective the pooling of capital
from a number of investors in order to participate directly in real estate
ownership or financing. REITs are generally fully integrated operating companies
that have interests in income-producing real estate. REITs are differentiated by
the types of real estate properties held and the actual geographic location of
properties and fall into two major categories: Equity REITs emphasize direct
property investment, holding their invested assets primarily in the ownership of
real estate or other equity interests, while Mortgage REITs concentrate on real
estate financing, holding their assets primarily in mortgages secured by real
estate. REITs obtain capital funds for investment in underlying real estate
assets by selling debt or equity securities on the public or institutional
capital markets or by bank borrowings. Thus, the returns on common equities of
the REITs in which the Trust invests will be significantly affected by changes
in costs of capital and, particularly in the case of highly "leveraged"REITs
(i.e., those with large amounts of borrowings outstanding) by changes in the
level of interest rates. The objective of an Equity REIT is to purchase
income-producing real estate properties in order to generate high levels of cash
flow from rental income and a gradual asset appreciation, and they typically
invest in properties such as office, retail, industrial, hotel and apartment
buildings and health care facilities. The objectives of a Mortgage REIT is to
invest primarily in mortgages secured by real estate in order to generate cash
flow from payments on the mortgage loans.
REITs are a creation of the tax law. REITs essentially operate as a corporation
or business trust with the advantage of exemption from corporate income taxes
provided the REIT satisfies the requirements of Sections 856 through 860 of the
Code. The major tests for tax qualified status are that the REIT(i) be managed
by one or more trustees or directors, (ii) issue issue share of transferable
interest to its owners, (iii) have at least 100 shareholders, (iv) have no more
than 50% of the shares held by five or fewer individuals, (v) invest
substantially all of its capital in real estate related assets and derive
substantially all of its gross income from real estate related assets and (vi)
distribute at least 95% of its taxable income to its shareholders each year. If
any REIT in the Trust's portfolio should fail to qualify for such tax status,
the related shareholders (including the Trust) could be adversely affected by
the resulting tax consequences.
The underlying value of the Securities and the Trust's ability to make
distributions to Unitholders may be adversely affected by changes in the
national, state and local economic climate and real estate conditions (such as
oversupply of or reduced demand for space and changes in market rental rates),
perceptions of prospective tenants of the safety, convenience, and
attractiveness of the properties, the ability of the owner to provide adequate
management, maintenance and insurance, the ability to collect on a timely basis
all rents from tenants, tenant defaults, the cost of complying with the
Americans with Disabilities Act, increased competition from other properties,
obsolescence of properties, changes in the availability, cost and terms of
mortgage funds, the impact of present or future environmental legislation and
compliance with environmental laws, the ongoing need for capital improvements,
particularly in older properties, changes in real estate tax rates and other
operating expenses, regulatory and economic impediments to raising rents,
adverse changes in governmental rules and fiscal policies, dependency on
management skills, civil unrest, acts of God, including earthquakes and other
natural disasters (which may result in uninsured losses), acts of war, adverse
changes in zoning laws, and other factors which are beyond the control of the
issuers of the REITs in the Trust.
The value of the REITs may at times be particularly sensitive to devaluation in
the event of rising interest rates. Equity REITs are less likely to be affected
by interest rate fluctuations than Mortgage REITs and the nature of the
underlying assets of an Equity REIT may be considered more tangible than that of
a Mortgage REIT. Equity REITs are more likely to be adversely affected by
changes in the value of the underlying property its owns than Mortgage REITs.
The Clinton Administration's proposed budget for fiscal year 1999 includes four
proposals affecting REITs. These proposals, if enacted, would place additional
restrictions on the structure of certain REITs, limit a REIT's permissible
investments, and affect the taxation of "built-in gains". In addition,
legislation may be proposed or adopted in the future which could adversely
impact REITs and the Sponsor is unable to predict whether current or future
proposals will be enacted or what impact such proposals will have on the
Securities.
REITs may concentrate investments in specific geographic areas or in specific
property types, i.e., hotels, shopping malls, residential complexes, and office
buildings. The impact of economic conditions on REITs can also be expected to
vary with geographic location and property type. Investors should be aware that
REITs may not be diversified and are subject to the risks of financing projects.
REITs are also subject to defaults by borrowers, self-liquidation, the market's
perception of the REIT industry generally, and the possibility of failing to
qualify for pass-through of income under the Code, and to maintain exemption
from the 1940 Act. A default by a borrower or lessee may cause the REIT to
experience delays in enforcing its rights as mortgagee or lessor and to incur
significant costs related to protecting its investments. In addition, because
real estate generally is subject to real property taxes, the REITs in the Trust
may be adversely affected by underlying the REITs by taxing authorities.
Furthermore, because real estate is relatively liquid, the ability of REITs to
vary their portfolios in response to changes in economic and other conditions
may be limited and may adversely affect the value of the Units. There can be no
assurance that any REIT will be able to dispose of its underlying real estate
assets when advantageous or necessary.
The issuer of REITs generally maintains comprehensive insurance on presently
owned and subsequently acquired real property assets, including liability, fire
and extended coverage. However, certain types of loses may be uninsurable or not
be economically insurable for local risks to which the REITs may be susceptible.
There can be no assurance that insurance coverage will be sufficient to pay the
full current market value or current replacement cost of any lost investment.
Various factors might make it impractical to use insurance proceeds to replace a
facility after it has been damaged or destroyed. Under such circumstances, the
insurance proceeds received by a REIT might not be adequate to restore its
economic position with respect to such property.
Under various environmental laws, a current or previous owner or operator of
real property may be liable for the costs of removal or remediation of hazardous
or toxic substances on, under, or in such property. Such laws often impose
liability whether or not the owner or operator caused or knew of the presence of
such hazardous or toxic substances and whether or not the storage of such
substances was in violation of a tenant's lease. In addition, the presence of
hazardous or toxic substances, or the failure to remediate such property
properly, may adversely affect the owner's ability to borrow using such real
property as collateral. No assurance can be given that one or more of the REITs
in the Trust may not be presently liable or potentially liable for any such
costs in connection with real estate assets they presently own or subsequently
acquire which such REITs are held in the Trust.
FEDERAL TAXATION
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The following is a general discussion of certain of the federal income tax
consequences of the purchase, ownership and disposition of the Units. The
summary is limited to investors who hold the Units as "capital assets"
(generally, property held for investment) within the meaning of Section 1221 of
the Code. Unitholders should consult their tax advisers in determining the
federal, state, local and any other tax consequences of the purchase, ownership
and disposition of Units in the Trust. For purposes of the following discussion
and opinion, it is assumed that each Security is considered a share in a real
estate investment trust for federal income tax purposes.
In the opinion of Chapman and Cutler, special counsel for the Sponsor, under
existing law:
1. The Trust is not an association taxable as a corporation for federal income
tax purposes; each Unitholder will be treated as the owner of a pro rata portion
of each of the assets of the Trust under the Code; and the income of the Trust
will be treated as income of the Unitholders thereof under the Code. Each
Unitholder will be considered to have received his or her pro rata share of
income derived from each Trust asset when such income is considered to be
received by the Trust.
2. Each Unitholder will have a taxable event when the Trust disposes of a
Security (whether by sale, taxable exchange, liquidation, redemption, or
otherwise) or upon the sale or redemption of Units by such Unitholder. The price
a Unitholder pays for his or her Units is allocated among his pro rata portion
of each Security held by the Trust (in proportion to the fair market values
thereof on the valuation date nearest the date the Unitholder purchased his or
her Units) in order to determine his or her tax basis for his or her pro rata
portion of each Security held by the Trust. Unitholders should consult their own
tax advisers with regard to the calculation of basis. For federal income tax
purposes, a Unitholder's pro rata portion of dividends (other than capital gains
dividends of a REIT, as described below), as defined by Section 316 of the Code,
paid with respect to a Security held by the Trust is taxable as ordinary income
to the extent of such corporation's current and accumulated "earnings and
profits." A Unitholder's pro rata portion of dividends paid on such Security
which exceeds such current and accumulated earnings and profits will first
reduce a Unitholder's tax basis in such Security, and to the extent that such
dividends exceed a Unitholder's tax basis in such Security shall generally be
treated as capital gain. In general, the holding period for such capital gain
will be determined by the period of time a Unitholder has held his or her Units.
The issuers of the Securities intend to qualify under special federal income tax
rules as "real estate investment trusts" (each a "REIT," shares of such issuers
held by the Trust shall be referred to collectively as the "REITShares").
Because Unitholders are deemed to directly own a pro rata portion of the REIT
Shares as discussed above, Unitholders are advised to consult their tax advisers
for information relating to the tax consequences of owning the REIT Shares.
Provided an issuer qualifies as a REIT, certain distributions by such issuers on
the REITShares may qualify as "capital gain dividends," taxable to shareholders
(and, accordingly, to the Unitholders as owners of a pro rata portion of the
REIT Shares) as long-term capital gains, regardless of how long a shareholder
has owned such shares. In addition, distributions of income or capital gains
declared on REIT Shares in October, November or December will be deemed to have
been paid to shareholders (and, accordingly, to the Unitholders as owners of a
pro rata portion of the REIT Shares) on December 31 of the year they are
declared, even when paid by a REITduring the following January and received by
shareholders or Unitholders in such following year.
3. A Unitholder's portion of gain, if any, upon the sale or redemption of Units
or the disposition of Securities held by the Trust will generally be considered
a capital gain (except in the case of a dealer or a financial institution). A
Unitholder's portion of loss, if any, upon the sale or redemption of Units or
the disposition of Securities held by the Trust, will generally be considered a
capital loss (except in the case of a dealer or a financial institution).
Unitholders should consult their tax advisers regarding the recognition of gains
and losses for federal income tax purposes, as special rules, described below,
apply to a Unitholder's pro rata portion of the REIT Shares.
Dividends Received Deduction. Dividends received on the Securities (so long as
such Securities qualify as REIT shares) are not eligible for the dividends
received deduction.
Limitations on Deductibility of Trust Expenses by Unitholders. Each Unitholder's
pro rata share of each expense paid by the Trust is deductible by the Unitholder
to the same extent as if the expense had been paid directly by such Unitholder.
It should be noted that as a result of the Tax Reform Act of 1986, certain
miscellaneous itemized deductions, such as investment expenses, tax return
preparation fees and employee business expenses will be deductible by an
individual only to the extent they exceed 2% of such individual's adjusted gross
income. Unitholders may be required to treat some or all of the expenses of the
Trust as miscellaneous itemized deductions subject to this limitation.
Recognition of Taxable Gain or Loss Upon Disposition of Securities by the Trust
or Disposition of Units. As discussed above, a Unitholder may recognize taxable
gain (or loss) when a Security is disposed of by the Trust or if the Unitholder
disposes of a Unit. However, any loss realized by a Unitholder with respect to
the disposition of his or her pro rata portion of the REIT Shares, to the extent
such Unitholder has owned his or her Units for less than six months or the Trust
has held the REIT Shares for less than six months, will be treated as long-term
capital loss to the extent of such Unitholder's pro rata portion of any capital
gain dividends received (or deemed to have been received) with respect to the
REITShares. The Taxpayer Relief Act of 1997 (the "1997 Act") provides that for
taxpayers other than corporations, net capital gain (which is defined as net
long-term capital gain over net short-term capital loss for the taxable year) is
subject to a maximum marginal stated tax rate of either 28%, 25% or 20%,
depending upon the holding periods of the capital assets and on whether the gain
is "unrecaptured section 1250 gain". Capital gain or loss is long-term if the
holding period for the asset is more than one year, and is short-term if the
holding period for the asset is one year or less. Generally, capital gains
realized from assets held for more than one year but not more than 18 months are
taxed at a a maximum marginal stated tax rate of 28% and capital gains realized
from assets (with certain exclusions) held for more than 18 months are taxed at
a maximum marginal stated tax rate of 20% (10% in the case of certain taxpayers
in the lowest tax bracket). Capital gain realized from assets held for more than
18 months that is considered unrecaptured section 1250 gain is taxed at a
maximum stated tax rate of 25%. Further, capital gains realized from assets held
for one year or less are taxed at the same rates as ordinary income. Legislation
is currently pending that provides the appropriate methodology that should be
applied in netting the realized capital gains and losses. Such legislation is
proposed to be effective retroactively for tax years ending after May 6, 1997.
Note, however, that the 1997 Act provides that the application of the rules
described above in the case of pass-through entities such as the REITs will be
prescribed in future Treasury Regulations. The Internal Revenue Service has
released preliminary guidance which provides that, in general, pass-through
entities such as REITs may designate their capital gain dividends as either a
20% rate gain distribution, an unrecaptured section 1250 gain distribution or a
28% rate gain distribution, depending on the nature of the gain received by the
pass-through entity. Unitholders should consult their own tax advisers as to the
tax rate applicable to capital gain dividends.
In addition, please note that capital gains may be recharacterized as ordinary
income in the case of certain financial transactions that are considered
"conversion transactions" effective for transactions entered into after April
30, 1993. Unitholders and prospective investors should consult their tax
advisers regarding the potential effect of this provision on their investment in
Units.
If a Unitholder disposes of a Unit, he or she is deemed thereby to have disposed
of his entire pro rata interest in all assets of the Trust involved including
his pro rata portion of all the Securities represented by the Unit. The 1997 Act
includes provisions that treat certain transactions designed to reduce or
eliminate risk of loss and opportunities for gain (e.g., short sales,
off-setting notional principal contracts, futures or forward contracts, or
similar transactions) as constructive sales for purposes of recognition of gain
(but not loss) and for purposes of determining the holding period. Unitholders
should consult their own tax advisers with regard to any such constructive sale
rules.
Special Tax Consequences of In-Kind Distributions Upon Termination of the Trust.
A Unitholder may, under certain circumstances, request an "In-Kind
Distribution"upon the termination of the Trust. See "Administration of the
Trust--Amendment and Termination." As previously discussed, prior to the
termination of the Trust, a Unitholder is considered as owning a pro rata
portion of each of the Trust assets for federal income tax purposes. The receipt
of an In-Kind Distribution will result in a Unitholder receiving an undivided
interest in whole shares of Securities plus, possibly, cash.
The potential tax consequences that may occur under an In-Kind Distribution will
depend on whether or not a Unitholder receives cash in addition to Securities. A
"Security" for this purpose is a particular class of stock issued by a
particular REIT. A Unitholder will not recognize gain or loss if a Unitholder
only receives Securities in exchange for his or her pro rata portion in the
Securities held by the Trust. However, if a Unitholder also receives cash in
exchange for a fractional share of a Security held by the Trust, such Unitholder
will generally recognize gain or loss based upon the difference between the
amount of cash received by the Unitholder and his tax basis in such fractional
share of a Security held by the Trust.
Because the Trust will own many Securities, a Unitholder who requests an In-Kind
Distribution will have to analyze the tax consequences with respect to each
Security owned by the Trust. If a Unitholder is deemed to recognize gain or loss
on the In-Kind Distribution because cash is received in addition to Securities,
the amount of taxable gain (or loss) recognized upon such exchange will
generally equal the sum of the gain (or loss) recognized under the rules
described above by such Unitholder with respect to each Security owned by the
Trust. Unitholders who request an In-Kind Distribution are advised to consult
their tax advisers in this regard.
Computation of the Unitholder's Tax Basis. Initially, a Unitholder's tax basis
in his or her Units will generally equal the price paid by such Unitholder for
his or her Units. The cost of the Units is allocated among the Securities held
in the Trust in accordance with the proportion of the fair market values of such
Securities on the valuation date nearest the date the Units are purchased in
order to determine such Unitholder's tax basis for his pro rata portion of each
Security.
A Unitholder's tax basis in his Units and his pro rata portion of a Security
held by the trust will be reduced to the extent dividends paid with respect to
such Security are received by the Trust which are not taxable as ordinary income
and are not capital gain dividends as described above.
General. Each Unitholder will be requested to provide the Unitholder's taxpayer
identification number to the Trustee and to certify that the Unitholder has not
been notified by the Internal Revenue Service that payments to the Unitholder
are subject to back-up withholding. If the proper taxpayer identification number
and appropriate certification are not provided when requested, distributions by
the Trust to such Unitholder (including amounts received upon the redemption of
Units) will be subject to back-up withholding. Distributions by the Trust (other
than those that are not treated as United States source income, if any) will
generally be subject to United States income taxation and withholding in the
case of Units held by non-resident alien individuals, foreign corporations or
other non-United States persons. Such persons should consult their tax advisers.
Unitholders will be notified annually of the amount of dividends includable in
the Unitholder's gross income and amounts of Trust expenses which may be claimed
as itemized deductions.
The foregoing discussion relates only to United States federal income taxation
of U.S. Unitholders; Unitholders may be subject to foreign, state and local
taxation. Unitholders should consult their tax advisers regarding potential
foreign, state and local taxation with respect to the Units, and foreign
investors should consult their tax advisers with respect to United States tax
consequences of ownership of Units.
Unitholders desiring to purchase Units for tax-deferred plans and Individual
Retirement Accounts ("IRAs") should consult their financial advisor for details
on establishing such accounts. Units may also be purchased by persons who
already have self-directed plans established.
TRUST OPERATING EXPENSES
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Compensation of Sponsor, Supervisor and Evaluator. The Sponsor will not receive
any fees in connection with its activities relating to the Trust. However, Van
Kampen American Capital Investment Advisory Corp., which is an affiliate of the
Sponsor, will receive an annual supervisory fee which is not to exceed the
amount set forth under "Summary of Essential Financial Information," for
providing portfolio supervisory services for the Trust. Such fee (which is based
on the number of Units outstanding on January 1 of each year for which such
compensation relates except during the initial offering period in which event
the calculation is based on the number of Units outstanding at the end of the
month of such calculation) may exceed the actual costs of providing such
supervisory services for this Trust, but at no time will the total amount
received for portfolio supervisory services rendered to all unit investment
trusts by the Supervisor in any calendar year exceed the aggregate cost to the
Supervisor of supplying such services in such year. In addition, the Evaluator,
which is a division of Van Kampen American Capital Investment Advisory Corp.,
shall receive the annual per Unit evaluation fee set forth under "Summary of
Essential Financial Information" (which amount is based on the number of Units
outstanding on January 1 of each year for which such compensation relates except
during the initial offering period in which event the calculation is based on
the number of Units outstanding at the end of the month of such calculation) for
regularly evaluating the Trust portfolio. The foregoing fees are payable as
described under "General" below. Both of the foregoing fees may be increased
without approval of the Unitholders by amounts not exceeding proportionate
increases under the category "All Services Less Rent of Shelter" in the Consumer
Price Index published by the United States Department of Labor or, if such
category is no longer published, in a comparable category. The Sponsor will
receive sales commissions and may realize other profits (or losses) in
connection with the sale of Units and the deposit of the Securities as described
under "Public Offering--Sponsor Compensation."
Trustee's Fee. For its services the Trustee will receive the annual per Unit fee
from the Trust set forth under "Summary of Essential Financial Information"
(which amount is based on the number of Units outstanding on January 1 of each
year for which such compensation relates except during the initial offering
period in which event the calculation is based on the number of Units
outstanding at the end of the month of such calculation). The Trustee's fees are
payable as described under "General" below. The Trustee benefits to the extent
there are funds for future distributions, payment of expenses and redemptions in
the Capital and Income Accounts since these Accounts are non-interest bearing to
Unitholders and the amounts earned by the Trustee are retained by the Trustee.
Part of the Trustee's compensation for its services to the Trust is expected to
result from the use of these funds. Such fees may be increased without approval
of the Unitholders by amounts not exceeding proportionate increases under the
category "All Services Less Rent of Shelter" in the Consumer Price Index
published by the United States Department of Labor or, if such category is no
longer published, in a comparable category. For a discussion of the services
rendered by the Trustee pursuant to its obligations under the Trust Agreement,
see "Rights of Unitholders--Reports Provided" and "Trust Administration."
Miscellaneous Expenses. Expenses incurred in establishing the Trust, including
the cost of the initial preparation of documents relating to the Trust
(including the Prospectus, Trust Agreement and certificates), federal and state
registration fees, the initial fees and expenses of the Trustee, legal and
accounting expenses, payment of closing fees and any other out-of-pocket
expenses, will be paid by the Trust and amortized over the life of the Trust.
The following additional charges are or may be incurred by the Trust: (a) normal
expenses (including the cost of mailing reports to Unitholders) incurred in
connection with the operation of the Trust, (b) fees of the Trustee for
extraordinary services, (c) expenses of the Trustee (including legal and
auditing expenses) and of counsel designated by the Sponsor, (d) various
governmental charges, (e) expenses and costs of any action taken by the Trustee
to protect the Trust and the rights and interests of Unitholders, (f)
indemnification of the Trustee for any loss, liability or expenses incurred in
the administration of the Trust without negligence, bad faith or wilful
misconduct on its part, (g) accrual of costs associated with liquidating the
securities and (h) expenditures incurred in contacting Unitholders upon
termination of the Trust. The expenses set forth herein are payable as described
under "General" below.
General. The fees and expenses are payable monthly out of the Income Account, if
sufficient, or from the Capital Account. When such fees and expenses are paid by
or owing to the Trustee, they are secured by a lien on the Trust's portfolio. If
the balance in the Income or Capital Accounts is insufficient to provide for
amounts payable by the Trust, Equity Securities will be sold from the Trust to
pay such amounts. These sales will result in capital gains or losses to
Unitholders. See "Federal Taxation".
PUBLIC OFFERING
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General. Units are offered at the Public Offering Price. The Public Offering
Price is based on the aggregate underlying value of the Securities in the
Trust's portfolio and cash, if any, in the Income and Capital Accounts held or
owned by the Trust. No sales charge is imposed on Units created on the Initial
Date of Deposit. The sales charge for secondary market transactions is described
under "Offering Price" below.
Offering Price. The Public Offering Price of the Units will vary from the
amounts stated under "Summary of Essential Financial Information" in accordance
with fluctuations in the prices of the underlying Securities in the Trust.
As indicated above, the price of the Units was established by dividing the
aggregate underlying value of the Securities by the number of Units outstanding.
The Public Offering Price shall also include the proportionate share of any cash
held in the Capital Account. Such price determination as of the close of
business on the day before the Initial Date of Deposit was made on the basis of
an evaluation of the Securities in the Trust prepared by Interactive Data
Corporation, a firm regularly engaged in the business of evaluating, quoting or
appraising comparable securities. After the close of business on the day before
the Initial Date of Deposit, the Evaluator will appraise or cause to be
appraised daily the value of the underlying Securities as of the Evaluation Time
on days the New York Stock Exchange is open and will adjust the Public Offering
Price of the Units commensurate with such valuation. Such Public Offering Price
will be effective for all orders received prior to the Evaluation Time on each
such day. Orders received by the Trustee or Sponsor for purchases, sales or
redemptions after that time, or on a day when the New York Stock Exchange is
closed, will be held until the next determination of price. The secondary market
sales charge is 3.25% of the Public Offering Price per Unit (3.359% of the
aggregate value of the Securities) and will be reduced by .5 of 1% on April 16,
1999 to 2.75%.
Unitholders of any Van Kampen American Capital-sponsored unit investment trust
may utilize their redemption or termination proceeds to purchase Units in the
secondary market subject to a sales charge of 2.25%.
For secondary market transactions, employees, officers and directors (including
their spouses, children, grandchildren, parents, grandparents, siblings,
mothers-in-law, fathers-in-law, sons-in-law and daughters-in-law, and trustees,
custodians or fiduciaries for the benefit of such persons) of Van Kampen
American Capital Distributors, Inc. and its affiliates, dealers and their
affiliates and vendors providing services to the Sponsor may purchase Units at
the Public Offering Price less the applicable dealer concession.
Units may be purchased in the secondary market at the Public Offering Price less
the concession the Sponsor typically allows to brokers and dealers for purchases
(see "Public Offering--Unit Distribution') by (1) investors who purchase Units
through registered investment advisers, certified financial planners and
registered broker-dealers who in each case either charge periodic fees for
financing planning, investment advisory or asset management service, or provide
such services in connection with the establishment of an investment account for
which a comprehensive "wrap fee" charge is imposed, (2) bank trust departments
investing funds over which they exercise exclusive discretionary investment
authority and that are held in a fiduciary, agency, custodial or similar
capacity, (3) any person who for at least 90 days, has been an officer, director
or bona fide employee of any firm offering Units for sale to investors or their
immediate family members (a spouse or child under 21 of such person) and (4)
officers and directors of bank holding companies that make Units available
directly or through subsidiaries or bank affiliates. Notwithstanding anything to
the contrary in this Prospectus, such investors, bank trust departments, firm
employees and bank holding company officers and directors who purchase Units
through this program will not receive sales charge reductions for quantity
purchases.
The value of the Equity Securities during the initial offering period is
determined on each business day by the Evaluator in the following manner: If the
Equity Securities are listed on a securities exchange this evaluation is
generally based on the closing sale prices on that exchange (unless it is
determined that these prices are inappropriate as a basis for valuation) or, if
there is no closing sale price on that exchange, at the closing ask prices. If
the Equity Securities are not so listed or, if so listed and the principal
market therefor is other than on the exchange, the evaluation shall generally be
based on the current ask price on the over-the-counter market (unless it is
determined that these prices are inappropriate as a basis for evaluation). If
current ask prices are unavailable, the evaluation is generally determined (a)
on the basis of current ask prices for comparable securities, (b) by appraising
the value of the Equity Securities on the ask side of the market or (c) by any
combination of the above.
In offering the Units to the public, neither the Sponsor nor any broker-dealers
are recommending any of the individual Securities in the Trust but rather the
entire pool of Securities, taken as a whole, which are represented by the Units.
Unit Distribution. During the initial offering period, Units will be distributed
to the public by the Sponsor, broker-dealers and others at the Public Offering
Price. Upon the completion of the initial offering period, Units repurchased in
the secondary market, if any, may be offered by this Prospectus at the secondary
market Public Offering Price in the manner described above.
The Sponsor intends to qualify the Units for sale in a number of states.
Broker-dealers or others will be allowed a concession or agency commission in
connection with the distribution of Units created on the Initial Date of Deposit
equal to 3.00% of the Public Offering Price. Broker-dealers and other selling
agents will be allowed additional volume concessions or agency commissions of
0.10% of the Public Offering Price for $5,000,000 - $19,999,999 of Units
distributed, 0.20% of the Public Offering Price for $20,000,000 - $39,999,999 of
Units distributed and 0.30% of the Public Offering Price for $40,000,000 of
Units or more distributed. Any discount provided to investors will be borne by
the selling dealer or agent. However, for transactions involving unitholders of
other Van Kampen American Capital-sponsored unit investment trusts who utilize
redemption or termination proceeds of such trusts to purchase Units of the Trust
during the secondary market, the total concession or agency commission will
amount to 1.50% per Unit. For secondary market transactions, the concession or
agency commission will amount to 70% of the sales charge applicable to the
transaction. The breakpoint concessions or agency commissions are applied on
either a Unit or dollar basis utilizing a breakpoint equivalent of $10 per Unit
and will be applied on whichever basis is more favorable to the broker-dealer.
The breakpoints will be adjusted to take into consideration purchase orders
stated in dollars which cannot be completely fulfilled due to requirement that
only whole Units be issued.
The Sponsor has adopted a policy whereby concessions or agency commissions paid
to dealers or other selling agents will be withheld or reversed if Units are
tendered for redemption or sold within 30 days of the Initial Date of Deposit.
Certain commercial banks are making Units of the Trust available to their
customers on an agency basis. A portion of the sales charge (equal to the agency
commission referred to above) is retained by or remitted to the banks. Under the
Glass-Steagall Act, banks are prohibited from underwriting Trust Units; however,
the Glass-Steagall Act does permit certain agency transactions and the banking
regulators have not indicated that these particular agency transactions are not
permitted under such Act. In addition, state securities laws on this issue may
differ from the interpretations of federal law expressed herein and banks and
financial institutions may be required to register as dealers pursuant to state
law.
To facilitate the handling of transactions, sales of Units shall normally be
limited to transactions involving a minimum of 100 Units (25 Units for
tax-sheltered retirement plans) but may vary by selling firm. In connection with
fully disclosed transactions with the Sponsor, the minimum purchase requirement
will be that number of Units set forth in the contract between the Sponsor and
the related broker or agent. The Sponsor reserves the right to reject, in whole
or in part, any order for the purchase of Units and to change the amount of the
concession or agency commission to dealers and others from time to time.
Sponsor and Other Compensation. The Sponsor will realize a profit or will
sustain a loss, as the case may be, as a result of the difference between the
price paid for the Securities by the Sponsor and the cost of such Securities to
the Trust on the Initial Date of Deposit. See "Notes to Portfolio." By virtue of
buying the Securities at below market prices on the Initial Date of Deposit, the
Sponsor will realize a profit on the deposit of Securities on the Initial Date
of Deposit of 4.00% of the market value of the Securities. The underwriter to
the issuers of the Securities, who also acts as a dealer of Units, will realize
a profit on the sale of the Securities to the Sponsor equal to the difference
between the underwriter's acquisition cost of such Securities and the sale price
of the Securities to the Sponsor (expected to be up to 1.00% of the market value
of the Securities). Notwithstanding the concessions or agency commissions
described under "Public Offering--Unit Distribution", the underwriter to the
issuers of the Securities will be allowed a concession or agency commission of
3.30% of the Public Offering Price for Units it distributes during the initial
offering period. The Sponsor may further realize additional profit or loss
during the initial offering period as a result of the possible fluctuations in
the market value of the Securities in the Trust after a date of deposit, since
all proceeds received from purchasers of Units (excluding dealer concessions and
agency commissions allowed, if any) will be retained by the Sponsor.
Broker-dealers of the Trust, banks and/or others may be eligible to participate
in a program in which such firms receive from the Sponsor a nominal award for
each of their representatives who have sold a minimum number of units of unit
investment trusts created by the Sponsor during a specified time period. In
addition, at various times the Sponsor may implement other programs under which
the sales forces of brokers, dealers, banks and/or others may be eligible to win
other nominal awards for certain sales efforts, or under which the Sponsor will
reallow to such brokers, dealers, banks and/or others that sponsor sales
contests or recognition programs conforming to criteria established by the
Sponsor, or participate in sales programs sponsored by the Sponsor, an amount
not exceeding the total applicable sales charges on the sales generated by such
persons at the public offering price during such programs. Also, the Sponsor in
its discretion may from time to time pursuant to objective criteria established
by the Sponsor pay fees to qualifying entities for certain services or
activities which are primarily intended to result in sales of Units of the
Trust. The Sponsor may also offer marketing allowances to broker-dealers. Such
payments are made by the Sponsor out of its own assets, and not out of the
assets of the Trust. These programs will not change the price Unitholders pay
for their Units or the amount that the Trust will receive from the Units sold.
A person will become the owner of Units on the date of settlement provided
payment has been received. Cash, if any, made available to the Sponsor prior to
the date of settlement for the purchase of Units may be used in the Sponsor's
business and may be deemed to be a benefit to the Sponsor, subject to the
limitations of the Securities Exchange Act of 1934.
As stated under "Public Market" below, the Sponsor intends to maintain a
secondary market for Units of the Trust. In so maintaining a market, the Sponsor
will also realize profits or sustain losses in the amount of any difference
between the price at which Units are purchased and the price at which Units are
resold (which price includes the applicable sales charge). In addition, the
Sponsor will also realize profits or sustain losses resulting from a redemption
of such repurchased Units at a price above or below the purchase price for such
Units, respectively.
Public Market. Although it is not obligated to do so, the Sponsor intends to
maintain a market for the Units offered hereby and offer continuously to
purchase Units at prices, subject to change at any time, based upon the
aggregate underlying value of the Equity Securities in the Trust (computed as
indicated under "Offering Price" above and "Rights of Unitholders--Redemption of
Units"). If the supply of Units exceeds demand or if some other business reason
warrants it, the Sponsor may either discontinue all purchases of Units or
discontinue purchases of Units at such prices. In the event that a market is not
maintained for the Units and the Unitholder cannot find another purchaser, a
Unitholder desiring to dispose of his Units may be able to dispose of such Units
only by tendering them to the Trustee for redemption at the Redemption Price.
See "Rights of Unitholders--Redemption of Units." A Unitholder who wishes to
dispose of his Units should inquire of his broker as to current market prices in
order to determine whether there is in existence any price in excess of the
Redemption Price and, if so, the amount thereof.
Tax-Sheltered Retirement Plans. Units of the Trust are available for purchase in
connection with certain types of tax-sheltered retirement plans, including
Individual Retirement Accounts for individuals, Simplified Employee Pension
Plans for employees, qualified plans for self-employed individuals, and
qualified corporate pension and profit sharing plans for employees. The purchase
of Units of the Trust may be limited by the plans' provisions and does not
itself establish such plans. The minimum purchase for retirement plans is 25
Units and may vary by selling firm.
RIGHTS OF UNITHOLDERS
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Certificates. The Trustee is authorized to treat as the record owner of Units
that person who is registered as such owner on the books of the Trustee.
Ownership of Units of the Trust will be evidenced by certificates unless a
Unitholder or the Unitholder's registered broker-dealer makes a written request
to the Trustee that ownership be in book entry form. Units are transferable by
making a written request to the Trustee and, in the case of Units evidenced by a
certificate, by presentation and surrender of such certificate to the Trustee
properly endorsed or accompanied by a written instrument or instruments of
transfer. A Unitholder must sign such written request, and such certificate or
transfer instrument, exactly as his name appears on the records of the Trustee
and on the face of any certificate representing the Units to be transferred with
the signature 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. In
certain instances the Trustee may require additional documents such as, but not
limited to, trust instruments, certificates of death, appointments as executor
or administrator or certificates of corporate authority. Certificates will be
issued in denominations of one Unit or any whole multiple thereof.
Although no such charge is now made or contemplated, the Trustee may require a
Unitholder to pay a reasonable fee for each certificate reissued or transferred
and to pay any governmental charge that may be imposed in connection with each
such transfer or interchange. Destroyed, stolen, mutilated or lost certificates
will be replaced upon delivery to the Trustee of satisfactory indemnity,
evidence of ownership and payment of expenses incurred. Mutilated certificates
must be surrendered to the Trustee for replacement.
Distributions of Income and Capital. Any dividends received by the Trust with
respect to the Equity Securities therein are credited by the Trustee to the
Income Account. Other receipts (e.g., capital gains, proceeds from the sale of
Securities, etc.) are credited to the Capital Account of the Trust. Proceeds
from the sale of Securities to meet redemptions of Units shall be segregated
within the Capital Account from proceeds from the sale of Securities made to
satisfy the fees, expenses and charges of the Trust.
The Trustee will distribute any income received with respect to any of the
Securities in the Trust on or about the Income Distribution Dates to Unitholders
of record on the preceding Income Record Dates. See "Summary of Essential
Financial Information." Proceeds received on the sale of any Securities in the
Trust, to the extent not used to meet redemptions of Units, pay the deferred
sales charge or pay fees and expenses, will be distributed annually on the
Capital Account Distribution Date to Unitholders of record on the preceding
Capital Account Record Date. Proceeds received from the disposition of any of
the Securities after a record date and prior to the following distribution date
will be held in the Capital Account and not distributed until the next
distribution date applicable to such Capital Account. The Trustee is not
required to pay interest on funds held in the Capital or Income Accounts (but
may itself earn interest thereon and therefore benefits from the use of such
funds).
The distribution to Unitholders as of each record date will be made on the
following distribution date or shortly thereafter and shall consist of each
Unitholder's pro rata share of the cash in the Income Account. Because dividends
are not received by the Trust at a constant rate throughout the year, such
distributions to Unitholders are expected to fluctuate from distribution to
distribution. Persons who purchase Units will commence receiving distributions
only after such person becomes a record owner. Notification to the Trustee of
the transfer of Units is the responsibility of the purchaser, but in the normal
course of business such notice is provided by the selling broker-dealer.
At the end of the initial offering period and as of the tenth day of each month
thereafter, the Trustee will deduct from the Capital Account amounts necessary
to pay the expenses of the Trust (as determined on the basis set forth under
"Trust Operating Expenses"). The Trustee also may withdraw from the Income and
Capital Accounts such amounts, if any, as it deems necessary to establish a
reserve for any governmental charges payable out of the Trust. Amounts so
withdrawn shall not be considered a part of the Trust's assets until such time
as the Trustee shall return all or any part of such amounts to the appropriate
accounts. In addition, the Trustee may withdraw from the Income and Capital
Accounts such amounts as may be necessary to cover redemptions of Units.
Reinvestment Option. Unitholders of the Trust may elect to have each
distribution of income, capital gains and/or capital on their Units
automatically reinvested in additional Units of the Trust pursuant to the
"Automatic Reinvestment Option" (to the extent Units may be lawfully offered for
sale in the state in which the Unitholder resides). To participate in the
reinvestment plan, a Unitholder may either contact his or her broker or agent or
file with the Trustee a written notice of election at least five days prior to
the Record Date for which the first distribution is to apply. A Unitholder's
election to participate in the reinvestment plan will apply to all Units of the
Trust owned by such Unitholder and such election will remain in effect until
changed by the Unitholder.
Reinvestment plan distributions may be reinvested in Units already held in
inventory by the Sponsor (see "Public Offering--Public Market") or, until such
time as additional Units cease to be issued by the Trust (see "The Trust"),
distributions may be reinvested in such additional Units. If Units are
unavailable in the secondary market, distributions which would otherwise have
been reinvested shall be paid in cash to the Unitholder on the applicable
Distribution Date.
Purchases of additional Units made pursuant to the reinvestment plan will be
made based on the net asset value for Units of the Trust as of the Evaluation
Time on the related Distribution Dates. Under the reinvestment plan, the Trust
will pay the Unitholder's distributions to the Trustee which in turn will
purchase for such Unitholder full and fractional Units of the Trust and will
send such Unitholder a statement reflecting the reinvestment.
Unitholders may also elect to have each distribution of income, capital gains
and/or capital on their Units automatically reinvested in Class A shares of
certain Van Kampen American Capital or Morgan Stanley mutual funds which are
registered in the Unitholder's state of residence. Such mutual funds are
hereinafter collectively referred to as the "Reinvestment Funds".
Each Reinvestment Fund has investment objectives which differ in certain
respects from those of the Trust. The prospectus relating to each Reinvestment
Fund describes the investment policies of such fund and sets forth the
procedures to follow to commence reinvestment. A Unitholder may obtain a
prospectus for the respective Reinvestment Funds from Van Kampen American
Capital Distributors, Inc. at One Parkview Plaza, Oakbrook Terrace, Illinois
60181. Texas residents who desire to reinvest may request that a broker-dealer
registered in Texas send the prospectus relating to the respective fund.
After becoming a participant in a reinvestment plan, each distribution of
income, capital gains and/or capital on the participant's Units will, on the
applicable distribution date, automatically be applied, as directed by such
person, as of such distribution date by the Trustee to purchase shares (or
fractions thereof) of the applicable Reinvestment Fund at a net asset value as
computed as of the close of trading on the New York Stock Exchange on such date.
Unitholders with an existing Guaranteed Reinvestment Option (GRO) Program
account (whereby a sales charge is imposed on distribution reinvestments) may
transfer their existing account into a new GRO account which allows purchases of
Reinvestment Fund shares at net asset value as described above. Confirmations of
all reinvestments by a Unitholder into a Reinvestment Fund will be mailed to the
Unitholder by such Reinvestment Fund.
A participant may at any time prior to five days preceding the next succeeding
distribution date, by so notifying the Trustee in writing, elect to terminate
his or her reinvestment plan and receive future distributions on his or her
Units in cash. There will be no charge or other penalty for such termination.
The Sponsor, each Reinvestment Fund, and its investment adviser shall have the
right to suspend or terminate the reinvestment plan at any time.
Reports Provided. The Trustee shall furnish Unitholders in connection with each
distribution a statement of the amount of income and the amount of other
receipts (received since the preceding distribution), if any, being distributed,
expressed in each case as a dollar amount representing the pro rata share of
each Unit outstanding. For as long as the Sponsor deems it to be in the best
interest of the Unitholders, the accounts of the Trust shall be audited, not
less frequently than annually, by independent certified public accountants, and
the report of such accountants shall be furnished by the Trustee to Unitholders
upon request. Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each person who at any time during the
calendar year was a registered Unitholder (i) a statement as to the Income
Account: income received, deductions for applicable taxes and for fees and
expenses of the Trust, for redemptions of Units, if any, and the balance
remaining after such distributions and deductions, expressed in each case both
as a total dollar amount and as a dollar amount representing the pro rata share
of each Unit outstanding on the last business day of such calendar year; (ii) a
statement as to the Capital Account: the dates of disposition of any Securities
and the net proceeds received therefrom, deductions for payment of applicable
taxes, fees and expenses of the Trust held for distribution to Unitholders of
record as of a date prior to the determination and the balance remaining after
such distributions and deductions expressed both as a total dollar amount and as
a dollar amount representing the pro rata share of each Unit outstanding on the
last business day of such calendar year; (iii) a list of the Securities held and
the number of Units outstanding on the last business day of such calendar year;
(iv) the Redemption Price per Unit based upon the last computation thereof made
during such calendar year; and (v) amounts actually distributed during such
calendar year from the Income and Capital Accounts, separately stated, expressed
as total dollar amounts.
In order to comply with federal and state tax reporting requirements,
Unitholders will be furnished, upon request to the Trustee, evaluations of the
Securities in the Trust furnished to it by the Evaluator.
Redemption of Units. A Unitholder may redeem all or a portion of his Units by
tender to the Trustee at its Unit Investment Trust Division, 101 Barclay Street,
20th Floor, New York, New York 10286 and, in the case of Units evidenced by a
certificate, by tendering such certificate to the Trustee, duly endorsed or
accompanied by proper instruments of transfer with signature guaranteed (or by
providing satisfactory indemnity, as in connection with lost, stolen or
destroyed certificates) and by payment of applicable governmental charges, if
any. No redemption fee will be charged. On the third business day following such
tender, the Unitholder will be entitled to receive in cash an amount for each
Unit equal to the Redemption Price per Unit next computed after receipt by the
Trustee of such tender of Units. The "date of tender" is deemed to be the date
on which Units are received by the Trustee, except that as regards Units
received after the Evaluation Time the date of tender is the next day on which
the New York Stock Exchange is open for trading and such Units will be deemed to
have been tendered to the Trustee on such day for redemption at the redemption
price computed on that day.
The Trustee is empowered to sell Securities in order to make funds available for
redemption if funds are not otherwise available in the Capital and Income
Accounts to meet redemptions. The Securities to be sold will be selected by the
Trustee from those designated on a current list provided by the Supervisor for
this purpose. Units so redeemed shall be cancelled.
Unitholders tendering 1,000 Units or more for redemption may request from the
Trustee a distribution in kind ("In Kind Distribution") of an amount and value
of Securities per Unit equal to the Redemption Price per Unit as determined as
of the evaluation next following the tender. An In Kind Distribution on
redemption of Units 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. The tendering Unitholder will receive
his pro rata number of whole shares of each of the Securities comprising the
portfolio and cash from the Capital Account equal to the fractional shares to
which the tendering Unitholder is entitled. In implementing these redemption
procedures, the Trustee shall make any adjustments necessary to reflect
differences between the Redemption Price of the Securities distributed in kind
as of the date of tender. 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. For the tax
consequences related to an In Kind Distribution see "Federal Taxation."
To the extent that Securities are redeemed in kind or sold, the size of the
Trust will be, and the diversity of the Trust may be, reduced. Sales may be
required at a time when Securities would not otherwise be sold and may result in
lower prices than might otherwise be realized. The price received upon
redemption may be more or less than the amount paid by the Unitholder depending
on the value of the Securities in the portfolio at the time of redemption.
The Redemption Price per Unit (as well as the secondary market Public Offering
Price) will be determined on the basis of the aggregate underlying value of the
Equity Securities in the Trust, plus or minus cash, if any, in the Income and
Capital Accounts. On the Initial Date of Deposit, the Public Offering Price per
Unit (which includes the sales charge) exceeded the values at which Units could
have been redeemed by the amounts shown under "Summary of Essential Financial
Information." While the Trustee has the power to determine the Redemption Price
per Unit when Units are tendered for redemption, such authority has been
delegated to the Evaluator which determines the price per Unit on a daily basis.
The Redemption Price per Unit is the pro rata share of each Unit in the Trust
determined on the basis of (i) the cash on hand in the Trust, (ii) the value of
the Securities in the Trust and (iii) dividends receivable on the Equity
Securities trading ex-dividend as of the date of computation, less (a) amounts
representing taxes or other governmental charges payable out of the Trust and
(b) the accrued expenses of the Trust. The Evaluator may determine the value of
the Equity Securities in the Trust in the following manner: if the Equity
Securities are listed on a national securities exchange this evaluation is
generally based on the closing sale prices on that exchange (unless it is
determined that these prices are inappropriate as a basis for valuation) or, if
there is no closing sale price on that exchange, at the closing bid prices. If
the Equity Securities are not so listed or, if so listed and the principal
market therefore is other than on the exchange, the evaluation shall generally
be based on the current bid price on the over-the-counter market (unless these
prices are inappropriate as a basis for evaluation). If current bid prices are
unavailable, the evaluation is generally determined (a) on the basis of current
bid prices for comparable securities, (b) by appraising the value of the Equity
Securities on the bid side of the market or (c) by any combination of the above.
The right of redemption may be suspended and payment postponed for any period
during which the New York Stock Exchange is closed, other than for customary
weekend and holiday closings, or any period during which the Securities and
Exchange Commission determines that trading on that Exchange is restricted or an
emergency exists, as a result of which disposal or evaluation of the Securities
in the Trust is not reasonably practicable, or for such other periods as the
Securities and Exchange Commission may by order permit.
TRUST ADMINISTRATION
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Sponsor Purchases of Units. The Trustee shall notify the Sponsor of any tender
of Units for redemption. If the Sponsor's bid in the secondary market at that
time equals or exceeds the Redemption Price per Unit, it may purchase such Units
by notifying the Trustee before the close of business on the next succeeding
business day and by making payment therefor to the Unitholder not later than the
day on which the Units would otherwise have been redeemed by the Trustee. Units
held by the Sponsor may be tendered to the Trustee for redemption as any other
Units.
The offering price of any Units acquired by the Sponsor will be in accord with
the Public Offering Price described in the then currently effective prospectus
describing such Units. Any profit resulting from the resale of such Units will
belong to the Sponsor which likewise will bear any loss resulting from a lower
offering or redemption price subsequent to its acquisition of such Units.
Portfolio Administration. The portfolio of the Trust is not "managed" by the
Sponsor, Supervisor or the Trustee; their activities described herein are
governed solely by the provisions of the Trust Agreement. Traditional methods of
investment management for a managed fund typically involve frequent changes in a
portfolio of securities on the basis of economic, financial and market analyses.
The Trust, however, will not be managed. The Trust Agreement, however, provides
that the Sponsor may (but need not) direct the Trustee to dispose of an Equity
Security in certain events such as the issuer having defaulted on the payment on
any of its outstanding obligations or the price of an Equity Security has
declined to such an extent or other such credit factors exist so that in the
opinion of the Sponsor, the retention of such Securities would be detrimental to
the Trust. Pursuant to the Trust Agreement and with limited exceptions, the
Trustee may sell any securities or other properties acquired in exchange for
Equity Securities such as those acquired in connection with a merger or other
transaction. If offered such new or exchanged securities or property, the
Trustee shall reject the offer. However, in the event such securities or
property are nonetheless acquired by the Trust, they may be accepted for deposit
in the Trust and either sold by the Trustee or held in the Trust pursuant to the
direction of the Sponsor (who may rely on the advice of the Supervisor).
Therefore, except as stated under "Trust Portfolio" for failed securities and as
provided in this paragraph, the acquisition by the Trust of any securities other
than the Securities is prohibited. Proceeds from the sale of Securities (or any
securities or other property received by the Trust in exchange for Equity
Securities) are credited to the Capital Account for distribution to Unitholders
or to pay fees and expenses of the Trust.
As indicated under "Rights of Unitholders--Redemption of Units" above, the
Trustee may also sell Securities designated by the Supervisor, or if not so
directed, in its own discretion, for the purpose of redeeming Units of the Trust
tendered for redemption and the payment of expenses.
To the extent practicable, the Supervisor may (but is not obligated to)
designate Securities to be sold by the Trustee in order to maintain the
proportionate relationship among the number of shares of individual issues of
Equity Securities. To the extent this is not practicable, the composition and
diversity of the Equity Securities may be altered. In order to obtain the best
price for the Trust, it may be necessary for the Supervisor to specify minimum
amounts (generally 100 shares) in which blocks of Equity Securities are to be
sold. In effecting purchases and sales of a Trust's portfolio securities, the
Sponsor may direct that orders be placed with and brokerage commissions be paid
to brokers, including brokers which may be affiliated with the Trust, the
Sponsor or dealers participating in the offering of Units. In addition, in
selecting among firms to handle a particular transaction, the Sponsor may take
into account whether the firm has sold or is selling units of unit investment
trusts which it sponsors.
Amendment or Termination. The Trust Agreement may be amended by the Trustee and
the Sponsor without the consent of any of the Unitholders (1) to cure any
ambiguity or to correct or supplement any provision thereof which may be
defective or inconsistent, or (2) to make such other provisions as shall not
adversely affect the Unitholders (as determined in good faith by the Sponsor and
the Trustee), provided, however, that the Trust Agreement may not be amended to
increase the number of Units (except as provided in the Trust Agreement). The
Trust Agreement may also be amended in any respect by the Trustee and Sponsor,
or any of the provisions thereof may be waived, with the consent of the holders
of 51% of the Units then outstanding, provided that no such amendment or waiver
will reduce the interest in the Trust of any Unitholder without the consent of
such Unitholder or reduce the percentage of Units required to consent to any
such amendment or waiver without the consent of all Unitholders. The Trustee
shall advise the Unitholders of any amendment promptly after execution thereof.
The Trust may be liquidated at any time by consent of Unitholders representing
66 2/3% of the Trust Units then outstanding or by the Trustee when the value of
the Trust, as shown by any evaluation, is less than that amount set forth under
Minimum Termination Value in "Summary of Essential Financial Information." The
Trust will be liquidated by the Trustee in the event that a sufficient number of
Units not yet sold are tendered for redemption by the Sponsor so that the net
worth of the Trust would be reduced to less than 40% of the value of the
Securities at the time they were deposited in the Trust. If the Trust is
liquidated because of the redemption of unsold Units the Sponsor will refund to
each purchaser of Units the entire sales charge paid by such purchaser. The
Trust Agreement will terminate upon the sale or other disposition of the last
Security held thereunder, but in no event will it continue beyond the Mandatory
Termination Date stated under "Summary of Essential Financial Information."
Commencing during the period beginning nine business days prior to, and no later
than, the Mandatory Termination Date, Equity Securities will begin to be sold in
connection with the termination of the Trust. The Sponsor will determine the
manner, timing and execution of the sales of the Equity Securities. The Sponsor
shall direct the liquidation of the Securities in such manner as to effectuate
orderly sales and a minimal market impact. In the event the Sponsor does not so
direct, the Securities shall be sold within a reasonable period and in such
manner as the Trustee, in its sole discretion, shall determine. Written notice
of any termination specifying the time or times at which Unitholders may
surrender their certificates for cancellation, if any are then issued and
outstanding, shall be given by the Trustee to each Unitholder so holding a
certificate at his address appearing on the registration books of the Trust
maintained by the Trustee. At least 30 days before the Mandatory Termination
Date the Trustee will provide written notice thereof to all Unitholders and will
include with such notice a form to enable Unitholders owning 1,000 or more Units
to request an In Kind Distribution rather than payment in cash upon the
termination of the Trust. To be effective, this request must be returned to the
Trustee at least five business days prior to the Mandatory Termination Date. On
the Mandatory Termination Date (or on the next business day thereafter if a
holiday) the Trustee will deliver each requesting Unitholder's pro rata number
of whole shares of each of the Equity Securities in the portfolio to the account
of the broker-dealer or bank designated by the Unitholder at Depository Trust
Company. The value of the Unitholder's fractional shares of the Equity
Securities will be paid in cash. Unitholders with less than 1,000 Units and
those not requesting an In Kind Distribution will receive a cash distribution
from the sale of the remaining Equity Securities within a reasonable time
following the Mandatory Termination Date. Regardless of the distribution
involved, the Trustee will deduct from the funds of the Trust any accrued costs,
expenses, advances or indemnities provided by the Trust Agreement, including
estimated compensation of the Trustee, costs of liquidation and any amounts
required as a reserve to provide for payment of any applicable taxes or other
governmental charges. Any sale of Equity Securities in the Trust upon
termination may result in a lower amount than might otherwise be realized if
such sale were not required at such time. The Trustee will then distribute to
each Unitholder his pro rata share of the balance of the Income and Capital
Accounts.
Within 60 days of the final distribution, Unitholders will be furnished a final
distribution statement, in substantially the same form as the annual
distribution statement, of the amount distributable. At such time as the Trustee
in its sole discretion will determine that any amounts held in reserve are no
longer necessary, it will make distribution thereof to Unitholders in the same
manner.
Limitations on Liabilities. The Sponsor, the Evaluator, the Supervisor, the
Trustee and Legg Mason shall be under no liability to Unitholders for taking any
action or for refraining from taking any action in good faith pursuant to the
Trust Agreement, or for errors in judgment, but shall be liable only for their
own willful misfeasance, bad faith or gross negligence (negligence in the case
of the Trustee) in the performance of their duties or by reason of their
reckless disregard of their obligations and duties hereunder. The Trustee shall
not be liable for depreciation or loss incurred by reason of the sale by the
Trustee of any of the Securities. In the event of the failure of the Sponsor to
act under the Trust Agreement, the Trustee may act thereunder and shall not be
liable for any action taken by it in good faith under the Trust Agreement.
The Trustee shall not be liable for any taxes or other governmental charges
imposed upon or in respect of the Securities or upon the interest thereon or
upon it as Trustee under the Trust Agreement or upon or in respect of the Trust
which the Trustee may be required to pay under any present or future law of the
United States of America or of any other taxing authority having jurisdiction.
In addition, the Trust Agreement contains other customary provisions limiting
the liability of the Trustee.
The Trustee, Sponsor, Supervisor and Unitholders may rely on any evaluation
furnished by the Evaluator and shall have no responsibility for the accuracy
thereof. Determinations by the Evaluator under the Trust Agreement shall be made
in good faith upon the basis of the best information available to it, provided,
however, that the Evaluator shall be under no liability to the Trustee, Sponsor
or Unitholders for errors in judgment. This provision shall not protect the
Evaluator in any case of willful misfeasance, bad faith, gross negligence or
reckless disregard of its obligations and duties.
Sponsor. Van Kampen American Capital Distributors, Inc., a Delaware corporation,
is the Sponsor of the Trust. The Sponsor is an indirect subsidiary of VK/AC
Holding, Inc. VK/AC Holding, Inc. is a wholly owned subsidiary of MSAM Holdings
II, Inc., which in turn is a wholly owned subsidiary of Morgan Stanley Dean
Witter & Co. ("MSDW").
MSDW, together with various of its directly and indirectly owned subsidiaries,
is engaged in a wide range of financial services through three primary
businesses: securities, asset management and credit services. These principal
businesses include securities underwriting, distribution and trading; merger,
acquisition, restructuring and other corporate finance advisory activities;
merchant banking; stock brokerage and research services; asset management;
trading of futures, options, foreign exchange commodities and swaps (involving
foreign exchange, commodities, indices and interest rates); real estate advice,
financing and investing; global custody, securities clearance services and
securities lending; and credit card services.
Van Kampen American Capital Distributors, Inc. specializes in the underwriting
and distribution of unit investment trusts and mutual funds with roots in money
management dating back to 1926. The Sponsor is a member of the National
Association of Securities Dealers, Inc. and has offices at One Parkview Plaza,
Oakbrook Terrace, Illinois 60181, (630) 684-6000 and 2800 Post Oak Boulevard,
Houston, Texas 77056, (713) 993-0500. As of November 30, 1996, the total
stockholders' equity of Van Kampen American Capital Distributors, Inc. was
$129,451,000 (unaudited). (This paragraph relates only to the Sponsor and not to
the Trust or to any other Series thereof. The information is included herein
only for the purpose of informing investors as to the financial responsibility
of the Sponsor and its ability to carry out its contractual obligations. More
detailed financial information will be made available by the Sponsor upon
request.)
As of September 30, 1997 the Sponsor and its Van Kampen American Capital
affiliates managed or supervised approximately $65.3 billion of investment
products, of which over $10.85 billion is invested in municipal securities. The
Sponsor and its Van Kampen American Capital affiliates managed $54 billion of
assets, consisting of $34.3 billion for 55 open-end mutual funds (of which 46
are distributed by Van Kampen American Capital Distributors, Inc.) $14.2 billion
for 37 closed-end funds and $5.5 billion for 106 institutional accounts. The
Sponsor has also deposited approximately $26 billion of unit investment trusts.
All of Van Kampen American Capital's open-end funds, closed-ended funds and unit
investment trusts are professionally distributed by leading financial firms
nationwide. Based on cumulative assets deposited, the Sponsor believes that it
is the largest sponsor of insured municipal unit investment trusts, primarily
through the success of its Insured Municipals Income Trust(R) or the IM-IT(R)
trust. The Sponsor also provides surveillance and evaluation services at cost
for approximately $13 billion of unit investment trust assets outstanding. Since
1976, the Sponsor has serviced over two million investor accounts, opened
through retail distribution firms.
If the Sponsor shall fail to perform any of its duties under the Trust Agreement
or become incapable of acting or shall become bankrupt or its affairs are taken
over by public authorities, then the Trustee may (i) appoint a successor Sponsor
at rates of compensation deemed by the Trustee to be reasonable and not
exceeding amounts prescribed by the Securities and Exchange Commission, (ii)
terminate the Trust Agreement and liquidate the Trust as provided therein or
(iii) continue to act as Trustee without terminating the Trust Agreement.
Trustee. The Trustee is The Bank of New York, a trust company organized under
the laws of New York. The Bank of New York has its unit investment trust
division offices at 101 Barclay Street, New York, New York 10286, (800)
221-7668. The Bank of New York is subject to supervision and examination by the
Superintendent of Banks of the State of New York and the Board of Governors of
the Federal Reserve System, and its deposits are insured by the Federal Deposit
Insurance Corporation to the extent permitted by law.
The duties of the Trustee are primarily ministerial in nature. It did not
participate in the selection of Securities for the Trust portfolio.
In accordance with the Trust Agreement, the Trustee shall keep proper books of
record and account of all transactions at its office for the Trust. Such records
shall include the name and address of, and the number of Units of the Trust held
by, every Unitholder of the Fund. Such books and records shall be open to
inspection by any Unitholder at all reasonable times during the usual business
hours. The Trustee shall make such annual or other reports as may from time to
time be required under any applicable state or federal statute, rule or
regulation (see "Rights of Unitholders--Reports Provided"). The Trustee is
required to keep a certified copy or duplicate original of the Trust Agreement
on file in its office available for inspection at all reasonable times during
the usual business hours by any Unitholder, together with a current list of the
Securities held in the Trust.
Under the Trust Agreement, the Trustee or any successor trustee may resign and
be discharged of its responsibilities created by the Trust Agreement by
executing an instrument in writing and filing the same with the Sponsor. The
Trustee or successor trustee must mail a copy of the notice of resignation to
all Unitholders then of record, not less than 60 days before the date specified
in such notice when such resignation is to take effect. The Sponsor upon
receiving notice of such resignation is obligated to appoint a successor trustee
promptly. If, upon such resignation, no successor trustee has been appointed and
has accepted the appointment within 30 days after notification, the retiring
Trustee may apply to a court of competent jurisdiction for the appointment of a
successor. The Sponsor may remove the Trustee and appoint a successor trustee as
provided in the Trust Agreement at any time with or without cause. Notice of
such removal and appointment shall be mailed to each Unitholder by the Sponsor.
Upon execution of a written acceptance of such appointment by such successor
trustee, all the rights, powers, duties and obligations of the original trustee
shall vest in the successor. The resignation or removal of a Trustee becomes
effective only when the successor trustee accepts its appointment as such or
when a court of competent jurisdiction appoints a successor trustee.
Any corporation into which a Trustee may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which a Trustee shall be a party, shall be the successor trustee. The Trustee
must be a banking corporation organized under the laws of the United States or
any state and having at all times an aggregate capital, surplus and undivided
profits of not less than $5,000,000.
OTHER MATTERS
- --------------------------------------------------------------------------------
Legal Opinions. The legality of the Units offered hereby has been passed upon by
Chapman and Cutler, 111 West Monroe Street, Chicago, Illinois 60603, as counsel
for the Sponsor. Winston & Strawn has acted as counsel for the Trustee.
Independent Certified Public Accountants. The statement of condition and the
related securities portfolio at the Initial Date of Deposit included in this
Prospectus have been audited by Grant Thornton LLP, independent certified public
accountants, as set forth in their report in this Prospectus, and are included
herein in reliance upon the authority of said firm as experts in accounting and
auditing.
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors of Van Kampen American Capital Distributors, Inc. and
the Unitholders of Van Kampen American Capital Equity Opportunity Trust, Series
96:
We have audited the accompanying statement of condition and the related
portfolio of Van Kampen American Capital Equity Opportunity Trust, Series 96 as
of April 16, 1998. The statement of condition and portfolio are the
responsibility of the Sponsor. Our responsibility is to express an opinion on
such financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. Our procedures included
confirmation of an irrevocable letter of credit deposited to purchase securities
by correspondence with the Trustee. An audit also includes assessing the
accounting principles used and significant estimates made by the Sponsor, as
well as evaluating the overall financial statement presentation. We believe our
audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Van Kampen American Capital
Equity Opportunity Trust, Series 96 as of April 16, 1998, in conformity with
generally accepted accounting principles.
GRANT THORNTON LLP
Chicago, Illinois
April 16, 1998
VAN KAMPEN AMERICAN CAPITAL EQUITY OPPORTUNITY TRUST,
SERIES 96
STATEMENT OF CONDITION
As of April 16, 1998
INVESTMENT IN SECURITIES
Contracts to purchase securities (1) $ 116,763
Organizational costs (2) 76,783
-------------
$ 193,546
=============
LIABILITY AND INTEREST OF UNITHOLDERS
Liability--
Accrued organizational costs (3) $ 76,783
Interest of Unitholders--
Cost to investors (3) 116,763
Less: Gross underwriting commission (3) 0
-------------
Net interest to Unitholders (3) 116,763
-------------
Total $ 193,546
=============
- ----------------
(1) The aggregate value of the Securities listed under "Portfolio" and their
cost to the Trust are the same. The value of the Securities is determined by
Interactive Data Corporation on the bases set forth under "Public
Offering--Offering Price". The contracts to purchase Securities are
collateralized by an irrevocable letter of credit of $116,763 which has been
deposited with the Trustee.
(2)The Trust will bear all or a portion of its organizational costs, which will
be deferred and amortized over the life of the Trust. Organizational costs have
been estimated based on a projected trust size of $70,000,000. To the extent the
Trust is larger or smaller, the estimate will vary.
(3) The aggregate public offering price is computed on the basis set forth under
"Public Offering--Offering Price".
<TABLE>
<CAPTION>
REIT Income and Growth Trust, Series 2
PORTFOLIO (VAN KAMPEN AMERICAN CAPITAL EQUITY OPPORTUNITY TRUST, SERIES 96)
as of the Initial Date of Deposit: April 16, 1998
- -------------------------------------------------------------------------------------------------------------------
Estimated
Annual Cost of
Number Market Value Dividends Securities
of Shares Name of Issuer (1) per Share (2) per Share (2) to Trust (2)
- ---------- -------------------------------------------- --------------- -------------- ------------------
<S> <C> <C> <C> <C>
1,042 Brandywine Realty Trust $24.000 $ 1.48 $ 25,008.00
604 BRE Properties, Inc. 27.625 1.44 16,685.50
747 Highwoods Properties, Inc. 33.500 2.04 25,024.50
728 Hospitality Properties Trust 34.375 2.56 25,025.00
695 Kimco Realty Corporation 36.000 1.92 25,020.00
- ---------- ------------------
3,816 $ 116,763.00
========== ==================
</TABLE>
NOTES TO PORTFOLIO
- --------------------------------------------------------------------------------
(1) All of the Securities are represented by "regular way" contracts for the
performance of which an irrevocable letter of credit has been deposited with the
Trustee. At the Initial Date of Deposit, Securities may have been delivered to
the Sponsor pursuant to certain of these contracts; the Sponsor has assigned to
the Trustee all of its right, title and interest in and to such Securities.
Contracts to acquire Securities were entered into on April 15, 1998 and are
expected to settle on April 20, 1998 (see Trust").
(2) The market value of each of the Securities is based on the closing sale
price of each listed Security on the applicable exchange, or if not so listed,
on the ask price on the day prior to the Initial Date of Deposit. Estimated
annual dividends are based on annualizing the most recently declared dividends.
Other information regarding the Securities in the Trust, as of the Initial Date
of Deposit, is as follows:
Profit Estimated
Cost To (Loss) To Annual
Sponsor Sponsor Dividends
-------------- -------------- --------------
$ 116,763 $ -- $ 7,134
-------------------------------------------------
An affiliate of the Sponsor may have participated as issuer, sole underwriter,
managing underwriter or member of an underwriting syndicate in a public offering
of one or more of the stocks in the Trust. An affiliate of the Sponsor may serve
as a specialist in the stocks in the Trust on one or more stock exchanges and
may have a long or short position in any of these stocks or in options on any of
these stocks, and may be on the opposite side of public orders executed on the
floor of an exchange where such stocks are listed. An officer, director or
employee of the Sponsor or an affiliate may be an officer or director of one or
more of the issuers of the stocks in the Trust. An affiliate of the Sponsor may
trade for its own account as an odd-lot dealer, market maker, block positioner
and/or arbitrageur in any stocks or options relating thereto. The Sponsor, its
affiliates, directors, elected officers and employee benefit programs may have
either a long or short position in any stock or option of the issuers.
THIS PAGE INTENTIONALLY LEFT BLANK.
No person is authorized to give any information or to make any representations
not contained in this Prospectus; and any information or representation not
contained herein must not be relied upon as having been authorized by the Fund
or the Sponsor. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy securities in any state to any person to whom it
is not lawful to make such offer in such state.
- ---------------------------------------------------
TABLE OF CONTENTS
- ---------------------------------------------------
Title Page
Summary of Essential Financial
Information........................... 3
The Trust................................... 4
Objective and Securities Selection.......... 5
Trust Portfolio............................. 7
Risk Factors................................ 7
Federal Taxation............................ 10
Trust Operating Expenses.................... 14
Public Offering............................. 15
Rights of Unitholders....................... 18
Trust Administration........................ 22
Other Matters............................... 26
Report of Independent Certified
Public Accountants.................... 27
Statement of Condition ..................... 28
Portfolio................................... 29
Notes to Portfolio.......................... 30
- --------------
This Prospectus contains information concerning the Fund and the Sponsor, but
does not contain all of the information set forth in the registration statements
and exhibits relating thereto, which the Fund has filed with the Securities and
Exchange Commission, Washington, D.C., under the Securities Act of 1933 and the
Investment Company Act of 1940, and to which reference is hereby made.
PROSPECTUS
- --------------------------------------------------------------------------------
April 16, 1998
Van Kampen
American Capital
Equity Opportunity
Trust, Series 96
REITIncome and Growth
Trust, Series 2
------ A Wealth of Knowledge oA Knowledge of Wealthsm ------
VAN KAMPEN AMERICAN CAPITAL
One Parkview Plaza
Oakbrook Terrace, Illinois 60181
2800 Post Oak Boulevard
Houston, Texas 77056
Please retain this Prospectus for future reference.
<PAGE>
This Amendment of Registration Statement comprises the following papers
and documents:
The facing sheet
The Cross-Reference Sheet
The Prospectus
The signatures
The consents of independent public accountants and legal counsel
The following exhibits:
1.1 Copy of Trust Agreement.
3.1 Opinion and consent of counsel as to legality of securities being
registered.
3.2 Opinion of counsel as to the Federal Income tax status of securities being
registered.
3.3 Opinion and consent of counsel as to New York tax status of securities being
registered.
4.1 Consent of Interactive Data Corporation.
4.2 Consent of Independent Certified Public Accountants.
EX-27 Financial Data Schedule.
<PAGE>
SIGNATURES
The Registrant, Van Kampen American Capital Equity Opportunity Trust,
Series 96, hereby identifies Van Kampen Merritt Equity Opportunity Trust, Series
1, Series 2, Series 4 and Series 7 and Van Kampen American Capital Equity
Opportunity Trust, Series 13, Series 14 and Series 57 for purposes of the
representations required by Rule 487 and represents the following: (1) that the
portfolio securities deposited in the series as to the securities of which this
Registration Statement is being filed do not differ materially in type or
quality from those deposited in such previous series; (2) that, except to the
extent necessary to identify the specific portfolio securities deposited in, and
to provide essential financial information for, the series with respect to the
securities of which this Registration Statement is being filed, this
Registration Statement does not contain disclosures that differ in any material
respect from those contained in the registration statements for such previous
series as to which the effective date was determined by the Commission or the
staff; and (3) that it has complied with Rule 460 under the Securities Act of
1933.
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Van Kampen American Capital Equity Opportunity Trust, Series 96 has
duly caused this Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Chicago and
State of Illinois on the 16th day of April, 1998.
Van Kampen American Capital Equity Opportunity Trust,
Series 96 By Van Kampen American Capital Distributors, Inc.
By GINA M. COSTELLO
Assistant Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the Registration Statement has been signed below on April 16, 1998
by the following persons who constitute a majority of the Board of Directors of
Van Kampen American Capital Distributors, Inc.
SIGNATURE TITLE
Don G. Powell Chairman and Chief Executive )
Officer )
John H. Zimmerman President and Chief Operating )
Officer )
Ronald A. Nyberg Executive Vice President and )
General Counsel )
William R. Rybak Executive Vice President and )
Chief Financial Officer )
GINA M. COSTELLO
(Attorney-in-fact*)
- --------------------------------------------------------------------------------
*An executed copy of each of the related powers of attorney is filed
herewith or was filed with the Securities and Exchange Commission in connection
with the Registration Statement on Form S-6 of Van Kampen American Capital
Equity Opportunity Trust, Series 64 (File No. 333-33087) and Van Kampen American
Capital Equity Opportunity Trust, Series 87 (File No. 333-44581) and the same
are hereby incorporated herein by this reference.
Exhibit 1.1
VAN KAMPEN AMERICAN CAPITAL EQUITY OPPORTUNITY TRUST
SERIES 96
TRUST AGREEMENT
Dated: April 16, 1998
This Trust Agreement among Van Kampen American Capital Distributors,
Inc., as Depositor, American Portfolio Evaluation Services, a division of Van
Kampen American Capital Investment Advisory Corp., as Evaluator, Van Kampen
Capital Investment Advisory Corp., as Supervisory Servicer, and The Bank of New
York, as Trustee, sets forth certain provisions in full and incorporates other
provisions by reference to the document entitled "Van Kampen American Capital
Equity Opportunity Trust, Series 87 and Subsequent Series, Standard Terms and
Conditions of Trust, Effective January 27, 1998" (herein called the "Standard
Terms and Conditions of Trust") and such provisions as are set forth in full and
such provisions as are incorporated by reference constitute a single instrument.
All references herein to Articles and Sections are to Articles and Sections of
the Standard Terms and Conditions of Trust.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor, Evaluator, Supervisory Servicer and 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:
1. The Securities defined in Section 1.01(24), listed in the
Schedule hereto, have been deposited in trust under this Trust
Agreement.
2. The fractional undivided interest in and ownership of
each Trust represented by each Unit is the amount set forth under
"Summary of Essential Financial Information - Fractional Undivided
Interest in the Trust per Unit" in the Prospectus. Such fractional
undivided interest may be (a) increased by the number of any additional
Units issued pursuant to Section 2.03, (b) increased or decreased in
connection with an adjustment to the number of Units pursuant to
Section 2.03, or (c) decreased by the number of Units redeemed pursuant
to Section 5.02.
3. The terms "Capital Account Record Date" and "Income
Account Record Date" shall mean the "Income and Capital Account Record
Dates" set forth under "Summary of Essential Financial Information" in
the Prospectus.
4. The terms "Capital Account Distribution Date" and "Income
Account Distribution Date" shall mean the "Income and Capital Account
Distribution Dates" set forth under "Summary of Essential Financial
Information" in the Prospectus.
5. The term "Mandatory Termination Date" shall mean the
"Mandatory Termination Date" set forth under "Summary of Essential
Financial Information" in the Prospectus.
<PAGE>
IN WITNESS WHEREOF, Van Kampen American Capital Distributors, Inc. has
caused this Trust Agreement to be executed by one of its Vice Presidents or
Assistant Vice Presidents and its corporate seal to be hereto affixed and
attested by its Secretary or one of its Vice Presidents or Assistant
Secretaries, American Portfolio Evaluation Services, a division of Van Kampen
American Capital Investment Advisory Corp., and Van Kampen American Capital
Investment Advisory Corp., have each caused this Trust Indenture and Agreement
to be executed by their respective President or one of their respective Vice
Presidents and the corporate seal of each to be hereto affixed and attested to
by the Secretary, Assistant Secretary or one of their respective Vice Presidents
or Assistant Vice Presidents and The Bank of New York, has caused this Trust
Agreement to be executed by one of its 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.
Van Kampen American Capital Distributors, Inc.
By JAMES J. BOYNE
Vice President, Associate General Counsel
and Assistant Secretary
Attest:
By CATHY NAPOLI
Assistant Secretary
American Portfolio Evaluation Services, a division of Van Kampen American
Capital Investment Advisory Corp.
By DENNIS J. MCDONNELL
President
Attest
By JAMES J. BOYNE
Assistant Secretary
Van Kampen American Capital Investment Advisory Corp.
By DENNIS J. MCDONNELL
President
Attest
By JAMES J. BOYNE
Assistant Secretary
The Bank of New York
By JEFFREY BIESELIN
Vice President
Attest
By JEFFREY COHEN
Assistant Treasurer
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
VAN KAMPEN AMERICAN CAPITAL EQUITY OPPORTUNITY TRUST, SERIES 96
(Note: Incorporated herein and made a part hereof is the "Portfolio" as set
forth in the Prospectus.)
<PAGE>
EXHIBIT 3.1
CHAPMAN AND CUTLER
111 WEST MONROE STREET
CHICAGO, ILLINOIS 60603
April 16, 1998
Van Kampen American Capital Distributors, Inc.
One Parkview Plaza
Oakbrook Terrace, Illinois 60181
Re: VAN KAMPEN AMERICAN CAPITAL EQUITY OPPORTUNITY TRUST, SERIES 96
---------------------------------------------------------------
Gentlemen:
We have served as counsel for Van Kampen American Capital Distributors,
Inc. as Sponsor and Depositor of Van Kampen American Capital Equity Opportunity
Trust, Series 96 (hereinafter referred to as the "Trust"), in connection with
the preparation, execution and delivery of a Trust Agreement dated April 16,
1998, among Van Kampen American Capital Distributors, Inc., as Depositor,
American Portfolio Evaluation Services, a division of Van Kampen American
Capital Investment Advisory Corp., as Evaluator, Van Kampen American Capital
Investment Advisory Corp., as Supervisory Servicer, and The Bank of New York, as
Trustee, pursuant to which the Depositor has delivered to and deposited the
Securities listed in the Schedule to the Trust Agreement with the Trustee and
pursuant to which the Trustee has provided to or on the order of the Depositor
documentation evidencing ownership of Units of fractional undivided interest in
and ownership of the Trust (hereinafter referred to as the "Units"), created
under said Trust Agreement.
In connection therewith we have examined such pertinent records and
documents and matters of law as we have deemed necessary in order to enable us
to express the opinions hereinafter set forth.
Based upon the foregoing, we are of the opinion that:
1. The execution and delivery of the Trust Agreement and
the execution and issuance of certificates evidencing the Units
in the Trust have been duly authorized; and
2. The certificates evidencing the Units in the Trust, when
duly executed and delivered by the Depositor and the Trustee in
accordance with the aforementioned Trust Agreement, will constitute
valid and binding obligations of such Trust and the Depositor in
accordance with the terms thereof.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement (File No. 333-48721) relating to the Units referred to
above and to the use of our name and to the reference to our firm in said
Registration Statement and in the related Prospectus.
Respectfully submitted,
CHAPMAN AND CUTLER
EXHIBIT 3.2
CHAPMAN AND CUTLER
111 WEST MONROE STREET
CHICAGO, ILLINOIS 60603
April 16, 1998
Van Kampen American Capital Distributors, Inc.
One Parkview Plaza
Oakbrook Terrace, Illinois 60181
The Bank of New York
101 Barclay Street
New York, New York 10286
Re: Van Kampen American Capital Equity Opportunity Trust, Series 96
Gentlemen:
We have acted as counsel for Van Kampen American Capital Distributors,
Inc., Depositor of Van Kampen American Capital Equity Opportunity Trust, Series
96 (the "Fund"), in connection with the issuance of Units of fractional
undivided interest in the Fund, under a Trust Agreement dated April 16, 1998
(the "Indenture") among Van Kampen American Capital Distributors, Inc., as
Depositor, Van Kampen American Capital Investment Advisory Corp., as Evaluator,
Van Kampen American Capital Investment Advisory Corp., as Supervisory Servicer,
and The Bank of New York, as Trustee. The Fund is comprised of one unit
investment trust, REIT Income and Growth Trust, Series 2 (the "Trust").
In this connection, we have examined the Registration Statement, the
form of Prospectus proposed to be filed with the Securities and Exchange
Commission, the Indenture and such other instruments and documents we have
deemed pertinent. The opinions expressed herein assume that the Trust will be
administered, and investments by the Trust from proceeds of subsequent deposits,
if any, will be made, in accordance with the terms of the Indenture. The Trust
holds Securities as such term is defined in the Prospectus. For purposes of the
following discussion and opinion, it is assumed that each Security is equity for
federal income tax purposes and represents a share in an entity treated as a
real estate investment trust for federal income tax purposes.
Based upon the foregoing and upon an investigation of such matters of
law as we consider to be applicable, we are of the opinion that, under existing
United States federal income tax law:
I. The Trust is not an association taxable as a corporation for
Federal income tax purposes; each Unitholder will be treated as the owner of a
pro rata portion of each of the assets of the Trust under the Internal Revenue
Code of 1986 (the "Code") in the proportion that the number of Units held by him
bears to the total number of Units outstanding; the income of the Trust will be
treated as income of the Unitholders in the proportion described above; and an
item of Trust income will have the same character in the hands of a Unitholder
as it would have in the hands of the Trustee. Each Unitholder will be considered
to have received his pro rata share of income derived from each Trust asset when
such income is considered to be received by the Trust.
II. The price a Unitholder pays for his Units, generally including
sales charges, is allocated among his pro rata portion of each Security held by
the Trust (in proportion to the fair market values thereof on the valuation date
closest to the date the Unitholder purchases his Units) in order to determine
his tax basis for his pro rata portion of each Security held by the Trust. For
Federal income tax purposes, a Unitholder's pro rata portion of dividends, as
defined by Section 316 of the Code, paid by a corporation with respect to a
Security held by the Trust is taxable as ordinary income to the extent of such
corporation's current and accumulated "earnings and profits." A Unitholder's pro
rata portion of dividends paid on such Security which exceeds such current and
accumulated earnings and profits will first reduce a Unitholder's tax basis in
such Security, and to the extent that such dividends exceed a Unitholder's tax
basis in such Security shall be treated as gain from the sale or exchange of
property. In general, any such gain will be short term unless a Unitholder has
held his Units for more than one year. All of the issuers of the Securities
intend to qualify under special Federal income tax rules as "real estate
investment trusts" (a "REIT," shares of such issuer held by the Trust shall be
referred to as the "REIT Shares"). Because Unitholders are deemed to directly
own a pro rata portion of the REIT Shares as discussed above, Unitholders are
advised to consult their tax advisers for information relating to the tax
consequences of owning the REIT Shares. Provided such issuer qualifies as a
REIT, certain distributions by such issuer on the REIT Shares may qualify as
"capital gain dividends," taxable to shareholders (and, accordingly, to the
Unitholders as owners of a pro rata portion of the REIT Shares) as long-term
capital gain, regardless of how long a shareholder has owned such shares. In
addition, distributions of income or capital gains declared on REIT Shares in
October, November, or December will be deemed to have been paid to the
shareholders (and, accordingly, to the Unitholders as owners of a pro rata
portion of the REIT Shares) on December 31 of the year they are declared, even
when paid by the REIT during the following January and received by shareholders
or Unitholders in such following year.
III. Gain or loss will be recognized to a Unitholder (subject
to various nonrecognition provisions under the Code) when the Trust disposes of
a Security (whether by sale, exchange, liquidation, redemption, or otherwise) or
upon redemption or sale of Units by such Unitholder, except to the extent an in
kind distribution of stock is received by such Unitholder from the Trust as
discussed below. A Unitholder's portion of gain, if any, upon the sale or
redemption of Units or the disposition of Securities held by the Trust will
generally be considered a capital gain except in the case of a dealer or
financial institution and will generally be long-term if the Unitholder has held
his Units for more than one year. Such gain or loss is measured by comparing the
proceeds of such redemption or sale with the adjusted basis of his Units. Before
adjustment, such basis would normally be cost if the Unitholder had acquired his
Units by purchase. Such basis will be reduced, but not below zero, by the
Unitholder's pro rata portion of dividends with respect to each Security which
is not taxable as ordinary income. However, any loss realized by a Unitholder
with respect to the disposition of his pro rata portion of the REIT Shares, to
the extent such Unitholder has owned his Units for less than six months or the
Trust has held the REIT Shares for less than six months, will be treated as
long-term capital loss to the extent of the Unitholder's pro rata portion of any
capital gain dividends received (or deemed to have been received) with respect
to the REIT Shares.
IV. Under the Indenture, under certain circumstances, a Unitholder
tendering Units for redemption may request an in kind distribution of Securities
upon the redemption of Units or upon the termination of the Trust. As previously
discussed, prior to the redemption of Units or the termination of the Trust, a
Unitholder is considered as owning a pro rata portion of each of the Trust's
assets. The receipt of an in kind distribution will result in a Unitholder
receiving an undivided interest in whole shares of stock and possibly cash. The
potential federal income tax consequences which may occur under an in kind
distribution with respect to each Security owned by the Trust will depend upon
whether or not a United States Unitholder receives cash in addition to
Securities. A "Security" for this purpose is a particular class of stock issued
by a particular corporation. A Unitholder will not recognize gain or loss if a
Unitholder only receives Securities in exchange for his or her pro rata portion
in the Securities held by the Trust. However, if a Unitholder also receives cash
in exchange for a fractional share of a Security held by the Trust, such
Unitholder will generally recognize gain or loss based upon the difference
between the amount of cash received by the Unitholder and his tax basis in such
fractional share of a Security held by the Trust. The total amount of taxable
gains (or losses) recognized upon such redemption will generally equal the sum
of the gain (or loss) recognized under the rules described above by the
redeeming Unitholder with respect to each Security owned by the Trust.
Dividends received by Unitholders on the REIT Shares are not eligible
for the dividends received deduction.
Section 67 of the Code provides that certain miscellaneous itemized
deductions, such as investment expenses, tax return preparation fees and
employee business expenses will be deductible by an individual only to the
extent they exceed 2% of such individual's adjusted gross income. Unitholders
may be required to treat some or all of the expenses of the Trust as
miscellaneous itemized deductions subject to this limitation.
A Unitholder will recognize taxable gain (or loss) when all or part of
the pro rata interest in a Security is either sold by the Trust or redeemed or
when a Unitholder disposes of his Units in a taxable transaction, in each case
for an amount greater (or less) than his tax basis therefor, subject to various
non-recognition provisions of the Code.
Any gain or loss recognized on a sale or exchange will, under current
law, generally be capital gain or loss.
The scope of this opinion is expressly limited to the matters set forth
herein, and, except as expressly set forth above, we express no opinion with
respect to any other taxes, including foreign, state or local taxes or
collateral tax consequences with respect to the purchase, ownership and
disposition of Units.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement (File No. 333-48721) relating to the Units referred to
above and to the use of our name and to the reference to our firm in said
Registration Statement and in the related Prospectus.
Very truly yours,
CHAPMAN AND CUTLER
Van Kampen American Capital Equity
Opportunity Trust, Series 96
April 16, 1998
Page 1
EXHIBIT 3.3
April 16, 1998
WINSTON & STRAWN
200 Park Avenue
New York, New York 10166-4193
April 16, 1998
Van Kampen American Capital Equity
Opportunity Trust, Series 96
c/o The Bank of New York, As Trustee
101 Barclay Street, 17 West
New York, New York 10286
Dear Sirs:
We have acted as special counsel for the Van Kampen American Capital
Equity Opportunity Trust, Series 96 (the "Fund") consisting of REIT Income and
Growth Trust, Series 2 (individually a "Trust" and, in the aggregate, the
"Trusts") for purposes of determining the applicability of certain New York
taxes under the circumstances hereinafter described.
The Fund is created pursuant to a Trust Agreement (the "Indenture"),
dated as of today (the "Date of Deposit") among Van Kampen American Capital
Distributors, Inc. (the "Depositor"), American Portfolio Evaluation Services, a
division of an affiliate of the Depositor, as Evaluator, Van Kampen American
Capital Investment Advisory Corp., an affiliate of the Depositor, as Supervisory
Servicer (the "Supervisory Servicer"), and The Bank of New York, as trustee (the
"Trustee"). As described in the prospectus relating to the Fund dated today to
be filed as an amendment to a registration statement heretofore filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Prospectus") (File Number 333-48721), the objectives of the Fund are to
provide the potential for dividend income and capital appreciation through
investment in a fixed portfolio of actively traded equity securities of
companies engaged in, providing services to companies in, the industry
identified in Trust's name, or are the type of securities identified in the name
of the Trust. It is noted that no opinion is expressed herein with regard to the
Federal tax aspects of the securities, the Trusts, units of the Trusts (the
"Units"), or any income, gains or losses in respect thereof.
As more fully set forth in the Indenture and in the Prospectus, the
activities of the Trustee will include the following:
On the Date of Deposit, the Depositor will deposit with the Trustee
with respect to the Trust the securities and/or contracts and cash for the
purchase thereof together with an irrevocable letter of credit in the amount
required for the purchase price of the securities comprising the corpus of the
Trust as more fully set forth in the Prospectus.
The Trustee did not participate in the selection of the securities to
be deposited in the Trust, and, upon the receipt thereof, will deliver to the
Depositor a registered certificate for the number of Units representing the
entire capital of the Trusts as more fully set forth in the Prospectus. The
Units, which are represented by certificates ("Certificates"), will be offered
to the public upon the effectiveness of the registration statement.
The duties of the Trustee, which are ministerial in nature, will
consist primarily of crediting the appropriate accounts with cash dividends
received by the Fund and with the proceeds from the disposition of securities
held in the Fund and the proceeds of the treasury obligation on maturity and the
distribution of such cash dividends and proceeds to the Unit holders. The
Trustee will also maintain records of the registered holders of Certificates
representing an interest in the Fund and administer the redemption of Units by
such Certificate holders and may perform certain administrative functions with
respect to an automatic reinvestment option.
Generally, equity securities held in the Trust may be removed therefrom
by the Trustee at the direction of the Depositor upon the occurrence of certain
specified events which adversely affect the sound investment character of the
Fund, such as default by the issuer in payment of declared dividends or of
interest or principal on one or more of its debt obligations.
Prior to the termination of the Fund, the Trustee is empowered to sell
equity securities designated by the Supervisory Servicer only for the purpose of
redeeming Units tendered to it and of paying expenses for which funds are not
available. The Trustee does not have the power to vary the investment of any
Unit holder in the Fund, and under no circumstances may the proceeds of sale of
any equity securities held by the Fund be used to purchase new equity securities
to be held therein.
Article 9-A of the New York Tax Law imposes a franchise tax on business
corporations, and, for purposes of that Article, Section 208(l) defines the term
"corporation" to include, among other things, "any business conducted by a
trustee or trustees wherein interest or ownership is evidenced by certificate or
other written instrument."
The Regulations promulgated under Section 208 provide as follows:
A business conducted by a trustee or trustees in which
interest or ownership is evidenced by certificate or other
written instrument includes, but is not limited to, an
association commonly referred to as a "business trust" or
"Massachusetts trust". In determining whether a trustee or
trustees are conducting a business, the form of the agreement
is of significance but is not controlling. The actual
activities of the trustee or trustees, not their purposes and
powers, will be regarded as decisive factors in determining
whether a trust is subject to tax under Article 9-A. The mere
investment of funds and the collection of income therefrom,
with incidental replacement of securities and reinvestment of
funds, does not constitute the conduct of a business in the
case of a business conducted by a trustee or trustees. 20
NYCRR 1-2.5(b)(2) (July 11, 1990).
New York cases dealing with the question of whether a trust will be
subject to the franchise tax have also delineated the general rule that where a
trustee merely invests funds and collects and distributes the income therefrom,
the trust is not engaged in business and is not subject to the franchise tax.
BURRELL V. LYNCH, 274 A.D. 347, 84 N.Y.S.2d 171 (3rd Dept. 1948), ORDER
RESETTLED, 274 A.D. 1083, 85 N.Y.S.2d 705 (3rd Dept. 1949).
In an Opinion of the Attorney General of the State of New York, 47 N.Y.
Att'y. Gen. Rep. 213 (Nov. 24, 1942), it was held that where the trustee of an
unincorporated investment trust was without authority to reinvest amounts
received upon the sales of securities and could dispose of securities making up
the trust only upon the happening of certain specified events or the existence
of certain specified conditions, the trust was not subject to the franchise tax.
In the instant situation, the Trustee is not empowered to, and we
assume will not, sell equity securities contained in the corpus of the Fund and
reinvest the proceeds therefrom. Further, the power to sell such equity
securities is limited to circumstances in which the credit-worthiness or
soundness of the issuer of such equity security is in question or in which cash
is needed to pay redeeming Unit holders or to pay expenses, or where the Fund is
liquidated subsequent to the termination of the Indenture. In substance, the
Trustee will merely collect and distribute income and will not reinvest any
income or proceeds, and the Trustee has no power to vary the investment of any
Unit holder in the Fund.
Under Subpart E of Part I, Subchapter J of Chapter 1 of the Internal
Revenue Code of 1986, as amended (the "Code"), the grantor of a trust will be
deemed to be the owner of the trust under certain circumstances, and therefore
taxable on his proportionate interest in the income thereof. Where this Federal
tax rule applies, the income attributed to the grantor will also be income to
him for New York income tax purposes. See TSB-M-78(9)(c), New York Department of
Taxation and Finance, June 23, 1978.
By letter dated today, Messrs. Chapman and Cutler, counsel for the
Depositor, rendered their opinion that each Unit holder will be considered as
owning a share of each asset of the Trust in the proportion that the number of
Units held by such holder bears to the total number of Units outstanding and the
income of a Trust will be treated as the income of each Unit holder in said
proportion pursuant to Subpart E of Part I, Subchapter J of Chapter 1 of the
Code.
Based on the foregoing and on the opinion of Messrs. Chapman and
Cutler, counsel for the Depositor, dated today, upon which we specifically rely,
we are of the opinion that under existing laws, rulings, and court decisions
interpreting the laws of the State and City of New York:
1. Each of the Trusts will not constitute an association
taxable as a corporation under New York law, and, accordingly, will not
be subject to tax on its income under the New York State franchise tax
or the New York City general corporation tax.
2. The income of the Trusts will be treated as the
income of the Unit holders under the income tax laws of the
State and City of New York.
3. Unit holders who are not residents of the State of New
York are not subject to the income tax laws thereof with respect to any
interest or gain derived from the Fund or any gain from the sale or
other disposition of the Units, except to the extent that such interest
or gain is from property employed in a business, trade, profession or
occupation carried on in the State of New York.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement relating to the Units and to the use of our name and the
reference to our firm in the Registration Statement and in the Prospectus.
Very truly yours,
WINSTON & STRAWN
EXHIBIT 4.1
Interactive Data
14 Wall Street, 11th Floor
New York, NY 10005
April 15, 1998
Van Kampen American Capital
One Parkview Plaza
Oakbrook Terrace, IL 60181
Re: Van Kampen American Capital
REIT Income and Growth Trust, Series 2
(A Unit Investment Trust) Registered Under the Securities Act of 1933,
File No. 333-48721
Gentlemen:
We have examined the Registration Statement for the above captioned
Fund, a copy of which is attached hereto.
We hereby consent to the reference in the Prospectus and Registration
Statement for the above captioned Fund to Interactive Data Corporation, as the
Evaluator, and to the use of the Obligations prepared by us which are referred
to in such Prospectus and Statement.
You are authorized to file copies of this letter with the Securities
and Exchange Commission.
Very truly yours,
James Perry
Vice President
EXHIBIT 4.2
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' CONSENT
We have issued our report dated April 16, 1998 on the statement of
condition and related securities portfolio of Van Kampen American Capital Equity
Opportunity Trust, Series 96 as of April 16, 1998 contained in the Registration
Statement on Form S-6 and Prospectus. We consent to the use of our report in the
Registration Statement and Prospectus and to the use of our name as it appears
under the caption "Other Matters-Independent Certified Public Accountants."
Grant Thornton LLP
Chicago, Illinois
April 16, 1998
<TABLE> <S> <C>
<ARTICLE> 6
<LEGEND>
This report reflects the current time period taken from 487 on April 16, 1998
it is unaudited
</LEGEND>
<SERIES>
<NUMBER> 2
<NAME> VRET
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> MAR-31-1999
<PERIOD-START> APR-16-1998
<PERIOD-END> APR-16-1998
<INVESTMENTS-AT-COST> 116,763
<INVESTMENTS-AT-VALUE> 116,763
<RECEIVABLES> 0
<ASSETS-OTHER> 76,783
<OTHER-ITEMS-ASSETS> 0
<TOTAL-ASSETS> 193,546
<PAYABLE-FOR-SECURITIES> 0
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 76,783
<TOTAL-LIABILITIES> 76,783
<SENIOR-EQUITY> 0
<PAID-IN-CAPITAL-COMMON> 116,763
<SHARES-COMMON-STOCK> 11,677
<SHARES-COMMON-PRIOR> 0
<ACCUMULATED-NII-CURRENT> 0
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> 0
<OVERDISTRIBUTION-GAINS> 0
<ACCUM-APPREC-OR-DEPREC> 0
<NET-ASSETS> 116,763
<DIVIDEND-INCOME> 0
<INTEREST-INCOME> 0
<OTHER-INCOME> 0
<EXPENSES-NET> 0
<NET-INVESTMENT-INCOME> 0
<REALIZED-GAINS-CURRENT> 0
<APPREC-INCREASE-CURRENT> 0
<NET-CHANGE-FROM-OPS> 0
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 0
<DISTRIBUTIONS-OTHER> 0
<NUMBER-OF-SHARES-SOLD> 0
<NUMBER-OF-SHARES-REDEEMED> 0
<SHARES-REINVESTED> 0
<NET-CHANGE-IN-ASSETS> 0
<ACCUMULATED-NII-PRIOR> 0
<ACCUMULATED-GAINS-PRIOR> 0
<OVERDISTRIB-NII-PRIOR> 0
<OVERDIST-NET-GAINS-PRIOR> 0
<GROSS-ADVISORY-FEES> 0
<INTEREST-EXPENSE> 0
<GROSS-EXPENSE> 0
<AVERAGE-NET-ASSETS> 0
<PER-SHARE-NAV-BEGIN> 0
<PER-SHARE-NII> 0
<PER-SHARE-GAIN-APPREC> 0
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> 0
<RETURNS-OF-CAPITAL> 0
<PER-SHARE-NAV-END> 0
<EXPENSE-RATIO> 0
<AVG-DEBT-OUTSTANDING> 0
<AVG-DEBT-PER-SHARE> 0
</TABLE>
