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Exhibit 1.1
EST SYMPHONY TRUST
SERIES 26, EQUIT'S II
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement (the "Agreement") dated June 13, 2000
among ING Funds Distributor, Inc., as Depositor, ING Mutual Funds Management Co.
LLC, as Portfolio Supervisor, The Bank of New York, as Trustee, and Kenny S&P
Evaluation Services, as Evaluator, sets forth certain provisions in full and
incorporates other provisions by reference to the document entitled EST Symphony
Trust, Series 26, EquiT's II, and Subsequent Series, Trust Indenture and
Agreement" dated June 13, 2000 and as amended in part by this Agreement
(collectively, such documents hereinafter called the "Indenture and Agreement").
This Agreement and the Indenture, as incorporated by reference herein, will
constitute a single instrument.
WITNESSETH THAT:
WHEREAS, this Agreement is a Reference Trust Agreement as defined in
Section 1.1 of the Indenture, and shall be amended and modified from time to
time by an Addendum as defined in Section 1.1 (1) of the Indenture, such
Addendum setting forth any Additional Securities as defined in Section 1.1 (2)
of the Indenture;
WHEREAS, the Depositor wishes to deposit Securities, and any
Additional Securities as listed on any Addendums hereto, into the Trust and
issue Units, and Additional Units as the case maybe, in respect thereof pursuant
to Section 2.5 of the Indenture; and
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the Depositor, the Portfolio Supervisor, the
Trustee and the Evaluator as follows:
Part I
STANDARD TERMS AND CONDITIONS OF TRUST
Section 1. Subject to the provisions of Part II hereof, all the
provisions contained in the Indenture are herein incorporated by reference in
their entirety and shall be deemed to be a part of this instrument as fully and
to the same extent as though said provisions had been set forth in full in this
instrument except that the following sections of the Indenture hereby are
amended as follows:
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(a) The definition of "Evaluator" shall be added to Section 1.1 and
read as follows:
""Evaluator" shall mean Kenny S&P Evaluation Services, a division
of J.J. Kenny Company, Inc., or any corporation into which such firm
may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which such firm shall be
a party, or any firm succeeding to all or substantially all of the
business of such firm; or any successor evaluator as hereinafter
provided for."
(b) The definition of "Fund" shall be added to Section 1.1 and read as
follows:
""Fund" shall mean the ING Internet Fund."
(c) The definition of "Fund Shares" shall be added to Section 1.1 and
read as follows:
""Fund Shares" shall mean Class A shares of the ING Internet Fund
or contracts and funds for the purchase thereof."
(d) In the definition of Original Proportionate Relationship in
Section 1.1(13), the words "among the number of shares of each Security" shall
be deleted and replaced with "between the maturity amount of the Treasury
Obligations and the number of Fund Shares."
(e) In the definition of Securities in Section 1.1(19), the words
"such common stock, preferred stock, ADRs and" shall be deleted and replaced
with "the Fund Shares and Treasury Obligations, including."
(f) The definition of "Treasury Obligations" shall be added to Section
1.1 and read as follows:
""Treasury Obligations" shall mean the debt obligations of the
government of the United States or agencies thereof or obligations of
an entity the payment of which is guaranteed by the full faith and
credit of the United States which have been stripped of their
unmatured interest coupons or such coupons or receipts or certificates
evidencing such obligations or coupons or contracts and funds for the
purchase thereof. The obligor or guarantor of each obligation is the
United States government. Such obligations may include certificates
that represent ownership of the payments that comprise a United States
government bond."
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(g) Section 3.3(a) shall be amended by adding after the words "and all
cash," the words "including capital gains distributions paid on the Fund
Shares."
(h) Section 3.5 shall be amended by adding the following clause in the
second paragraph of such Section 3.5:
"(e) deduct from the Income Account, or, to the extent funds are
not available in such Account, from the Principal Account, and pay to
the Evaluator the amount that it is at the time entitled to receive
pursuant to Section 4.4."
(i) Section 3.6(A)(3) and (B)(4) shall each be amended by adding after
the words "fees and expenses of the Trustee" the words ", the Evaluator."
(j) Section 3.6(B) shall be amended by adding the following clause:
"(5) the amounts credited to or deducted from the Principal
Account on account of distributions of capital gains, if any, on Fund
Shares, and"
(k) Section 3.7 shall be amended by deleting the parenthetical reading
"(e.g., both will be common stock or preferred stock)" in the first paragraph
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and inserting "(e.g., Treasury Obligations will be substantially identical to
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every Treasury Obligation then held in the Trust)."
(l) Section 3.12 shall be amended by adding after the words "provided,
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however," the phrase "that the Trustee shall vote the Fund Shares as closely as
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possible, in the same manner and the same general proportion, as the shares of
the Fund held by owners other than the Trust are voted; and provided, further
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however, . . . ."
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(m) Section 4.1 shall be amended to read in its entirety as follows:
"Section 4.1. Evaluation of Evaluator. (a) The Evaluator shall
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determine separately, and shall promptly furnish to the Trustee and
the Depositor upon request, the value of each issue of Securities
(including Contract Securities) ("Evaluation") as of the Evaluation
Time (as defined in Section 5.1) (i) on each Business Day during the
period in which the Units are being offered for sale to the public and
(ii) on any other day on which a Trust Evaluation is to be made
pursuant to Section 5.1 or which is requested by the Depositor or the
Trustee. As part of the Trust Evaluation, the Evaluator shall
determine separately and promptly furnish to the Trustee and the
Depositor upon request the Evaluation of each issue of Securities
initially deposited in the Trust on the initial date of deposit. The
Evaluators
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determination of the offering prices of the Securities on the initial
date of deposit shall be included in the Schedules attached to the
Reference Trust Agreement.
(b) During the initial offering period, namely, from the date of
effectiveness of the Registration Statement under the Securities Act
of 1933 relating to the Units, to and including the day which is
designated in writing by the Depositor to the Trustee and Evaluator as
the conclusion of such period, such Evaluation shall generally be
based on the following methods or any combination thereof whichever
the Evaluator deems appropriate: (a) on the basis of current offering
prices for the Treasury Obligations as obtained from investment
dealers or brokers who customarily deal in securities comparable to
those held by the Trust and, with respect to any Fund Shares deposited
in a Trust, the net asset value of such shares, (b) if offering prices
are not available for the Treasury Obligations, on the basis of
offering price for comparable securities, (c) by determining the
valuation of the Treasury Obligations on the offering side of the
market by appraisal, or (d) by any combination of the above.
(c) After the initial offering period and both during and after
the initial offering period for purposes of the Trust Evaluations
required by Section 5.1, Evaluation of the Securities shall be made in
the manner described in 4.01(b), on the basis of current bid prices
for the Treasury Obligations and the net asset value of the Fund
Shares."
(n) Section 4.2 shall be amended by adding after the words "state tax
law," the words "the Evaluator shall make available to the Trustee and."
(o) Section 4.3 shall be amended in its entirety to read as follows:
"Section 4.3. Liability of Evaluator with Respect to
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Evaluations: The Trustee, the Depositor, the Portfolio Supervisor and
the Unitholders may rely on any evaluation furnished by the Evaluator
and shall have no responsibility for the accuracy thereof. The
determinations made by the Evaluator hereunder shall be made in good
faith upon the basis of, and shall have no liability for errors in,
the information reasonably available to it. The Evaluator shall be
under no liability to the Trustee, the Depositor, the Portfolio
Supervisor or the Unitholders for errors in judgment or any action
taken in good faith, provided, however, that this provision shall not
protect the Evaluator against any liability to which it would
otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence in the
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performance of its duties or by reason of its reckless disregard of
its obligations and duties hereunder."
(p) ARTICLE 4 shall be amended to add a new Section 4.4 as follows:
"Section 4.4. Evaluator's Compensation: As compensation for its
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services hereunder, the Evaluator, with respect to each series of the
Trust, shall receive against a statement therefor submitted to the
Trustee annually on or before each Distribution Date from the Income
Account to the extent funds are available and thereafter from the
Principal Account the amounts set forth in Part II of the Reference
Trust Agreement for such series, provided, however, that if at any
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time the fee of the Trustee shall have been increased pursuant to
Section 6.4, the compensation of the Evaluator hereunder shall at the
same time be ratably increased."
(q) ARTICLE 4 shall be amended to add a new Section 4.5 as follows:
"Section 4.5. Successor Evaluator: (a) The Evaluator may
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resign and be discharged hereunder, by executing an instrument in
writing resigning as Evaluator and filing the same with the Depositor
and the Trustee, not less than 60 days before the date specified in
such instrument when, subject to Section 4.5(e), such resignation is
to take effect. Upon receiving such notice of resignation, the
Depositor and the Trustee shall use their best efforts to appoint a
successor evaluator having qualifications and at a rate of
compensation satisfactory to the Depositor and the Trustee. Such
appointment shall be made by written instrument executed by the
Depositor and the Trustee, in duplicate, one copy of which shall be
delivered to the resigning Evaluator and one copy to the successor
evaluator. The Depositor may remove the Evaluator at any time upon 30
days' written notice and appoint a successor evaluator having
qualifications and at a rate of compensation satisfactory to the
Depositor and the Trustee. Such appointment shall be made by written
instrument executed by the Depositor, in duplicate, one copy of which
shall be delivered by the Evaluator so removed and one copy to the
successor evaluator. Notice of such resignation or removal and
appointment of a successor evaluator shall be mailed by the Trustee to
each Unitholder.
(b) Any successor evaluator appointed hereunder shall execute,
acknowledge and deliver to the Depositor and the Trustee an instrument
accepting such appointment hereunder, and such successor evaluator
without any further act, deed or conveyance shall become vested with
all the rights, powers, duties and obligations of its predecessor
hereunder with
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like effect as if originally named Evaluator herein and shall be bound
by all the terms and conditions of this Indenture.
(c) In case at any time the Evaluator shall resign and no
successor evaluator shall have been appointed and have accepted
appointment within 30 days after notice of resignation has been
received by the Depositor and the Trustee, the Evaluator may forthwith
apply to a court of competent jurisdiction for the appointment of a
successor evaluator. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a successor
evaluator.
(d) Any corporation into which the Evaluator hereunder may be
merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Evaluator
hereunder shall be a party, or any corporation succeeding to all or
substantially all of the business of the Evaluator hereunder, shall be
the successor evaluator under this Indenture without the execution or
filing of any paper, instrument or further act to be done on the part
of the parties hereto, anything herein, or in any agreement relating
to such merger or consolidation, by which the Evaluator may seek to
retain certain powers, rights and privileges theretofore obtaining for
any period of time following such merger or consolidation, to the
contrary notwithstanding.
(e) Any resignation or removal of the Evaluator and appointment
of a successor evaluator pursuant to this Section shall become
effective upon acceptance of appointment by the successor evaluator as
provided in subsection (b) hereof."
(r) Section 5.1 shall be amended by (i) deleting the words "stocks"
and inserting the words "Fund Shares" in the first paragraph, (ii) adding after
the words "accrued fees and expenses of the Depositor," in the first paragraph
the words "the Evaluator," and (iii) deleting the words "valuation by the
Trustee" and inserting the words "valuation by the Evaluator" in the third
paragraph.
(s) Section 5.2 shall be amended by deleting the sixth paragraph and
substituting the following paragraph:
"The Depositor shall designate Securities to be sold for the
purpose of redemption of Units tendered for redemption and not
purchased for the Depositor, and for payment of expenses hereunder,
provided that if the Depositor shall fail so to designate, the Trustee
shall sell Fund Shares and Treasury Obligations in such amounts as
will result in the remaining Fund
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Shares and Treasury Obligations held in the Trust approximating, as
closely as possible, the Original Proportionate Relationship,
provided, however, that Treasury Obligations shall not be sold to the
extent that the maturity value, per Unit, of the Treasury Obligations
remaining after such sale would be less than the maturity value, per
Unit, of the Treasury Obligations on the initial date of deposit. The
net proceeds of any sales of Securities from such list representing
principal shall be credited to the Principal Account and the proceeds
of such sales representing accrued interest shall be credited to the
Income Account."
(t) Section 6.1(b) shall be amended by deleting the words "any
independent evaluation service employed by it" and inserting the words "the
Evaluator."
(u) Section 6.4 shall be amended by deleting the third sentence of the
second paragraph and inserting the following:
"If the cash balances in the Income and Principal Accounts shall
be insufficient to provide for amounts payable pursuant to this
Section 6.4, the Trustee shall have the power to sell Securities. The
Depositor shall, upon request by the Trustee, designate Securities to
be sold for the purpose of payment of expenses hereunder, provided
that if the Depositor shall fail so to designate, the Trustee shall
sell Fund Shares and Treasury Obligations in such amounts as will
result in the remaining Fund Shares and Treasury Obligations held in
the Trust approximating, as closely as possible, the Original
Proportionate Relationship, provided, however, that Treasury
Obligations shall not be sold to the extent that the maturity value,
per Unit, of the Treasury Obligations remaining after such sale would
be less than the maturity value, per Unit, of the Treasury Obligations
on the initial date of deposit."
(v) Section 9.2 shall be amended by (i) substituting the words "Fund
Shares" for "Securities" in the fifth and ninth lines of the fourth paragraph
and (ii) adding the following sentence after the fourth sentence in the fourth
paragraph:
"In any case, Unitholders will receive their pro rata share of
the Treasury Obligations and any other assets of the Trust, including
fractional share entitlements of Fund Shares, in cash."
(w) Section 9.2 shall be amended by adding after the words "unpaid
fees of counsel pursuant to Section 3.9" in clause (b) of paragraph seven the
words "unpaid fees of the Evaluator pursuant to Section 4.4."
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(x) Section 9.5 shall be amended by adding the following prior to the
concluding sentence of such Section 9.5:
"Any notice, demand, direction or instruction to be given to the
Evaluator shall be in writing and shall be duly given if mailed or
delivered to the Evaluator, Attention: Vice President, 55 Water
Street, New York, New York 10041 or such other address as shall be
specified to the other parties hereto by the Evaluator in writing."
Section 2. This Reference Trust Agreement may be amended and modified
by Addendums, attached hereto, evidencing the purchase of Additional Securities
which have been deposited to effect an increase over the number of Units
initially specified in Part II of this Reference Trust Agreement ("Additional
Closings"). The Depositor and Trustee hereby agree that their respective
representations, agreements and certifications contained in the Closing
Memorandum dated June 13, 2000 relating to the initial deposit of Securities
continue as if such representations, agreements and certifications were made on
the date of such Additional Closings and with respect to the deposits made
therewith, except as such representations, agreements and certifications relate
to their respective By-Laws and as to which they each represent that their has
been no amendment affecting their respective abilities to perform their
respective obligations under the Indenture.
Part II
SPECIAL TERMS AND CONDITIONS OF TRUST
Section 1. The following special terms and conditions are hereby
agreed to:
(a) The Securities (including Contract Securities) listed in the
Prospectus relating to this series of EST Symphony Trust (the "Prospectus") have
been deposited in the Trust under this Agreement (see "Portfolio" in Part A of
the Prospectus which for purposes of this Indenture and Agreement is the
Schedule of Securities or Schedule A).
(b) The number of Units delivered by the Trustee in exchange for the
Securities referred to in Section 2.3 is 15,000.
(c) For the purposes of the definition of Unit in item (24) of Section
1.1, the fractional undivided interest in and ownership of the Trust initially
is 1/15,000 as of the date hereof.
(d) The term Record Date shall mean the first day of January
commencing on January 1, 2001.
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(e) The term Distribution Date shall mean the fifteenth day of January
and June commencing on January 15, 2001.
(f) The First Settlement Date shall mean June 16, 2000.
(g) For purposes of Section 4.4, the Evaluator shall receive $5.00 for
each evaluation of the Treasury Obligations in the Trust.
(h) For purposes of Section 6.1(g), the liquidation amount is hereby
specified to be 40% of the aggregate value of the Securities as of the last
deposit of Additional Securities.
(i) For purposes of Section 6.4, the Trustee shall be paid per annum
an amount computed according to the following schedule, determined on the basis
of the number of Units outstanding as of the Record Date preceding the Record
Date on which the compensation is to be paid, provided, however, that with
respect to the period prior to the first Record Date, the Trustee's compensation
shall be computed at $.90 per 100 Units:
rate per 100 units number of Units outstanding
$0.90 first 5,000,000 or less
$0.84 next 5,000,001 - 10,000,000
$0.78 next 10,000,001 - 20,000,000
$0.66 next 20,000,001 or more
(j) For purposes of Section 7.4, the Portfolio Supervisor's maximum
annual supervisory fee is hereby specified to be $.25 per 100 Units outstanding.
(k) The Termination Date shall be August 14, 2012 or the earlier
disposition of the last Security in the Trust.
(l) The fiscal year for the Trust shall end on December 31 of each
year.
IN WITNESS WHEREOF, the parties hereto have caused this Reference
Trust Agreement to be duly executed on the date first above written.
[Signatures on separate pages]
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ING FUNDS DISTRIBUTOR, INC.
Depositor
By: /s/ PETER J. DEMARCO
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Senior Vice President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 8th day of June, 2000, before me personally appeared Peter
DeMarco, to me known, who being by me duly sworn, said that he is Senior Vice
President of the Depositor, one of the corporations described in and which
executed the foregoing instrument, and that he signed his name thereto by
authority of the Board of Directors of said corporation.
/s/ MICHAEL ROSELLA
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Notary Public
MICHAEL R. ROSELLA
Notary Public, State of New York
No. 31-5016879
Qualified in New York County
Commission Expires 9/26/2001
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THE BANK OF NEW YORK
Trustee
By: /s/ ALFRED IRVING
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Vice President
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On this 8th day of June, 2000, before me personally appeared Alfred
Irving, to me known, who being by me duly sworn, said that (s)he is an
Authorized Signatory of The Bank of New York, one of the corporations described
in and which executed the foregoing instrument; that (s)he knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation and that he/she signed his/her name thereto by like authority.
/s/ RUDOLF E. REITMANN
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Notary Public
RUDOLF E. REITMANN
Notary Public, State of New York
No. 01RE5086077
Qualified in Queens County
Commission Expires 10/06/2001
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ING MUTUAL FUNDS MANAGEMENT CO. LLC
Portfolio Supervisor
By: /s/ PETER J. DEMARCO
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Authorized Signator
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 8th day of June, 2000, before me personally appeared Peter J.
DeMarco, to me known, who being by me duly sworn, said that he is an Authorized
Signator of the Portfolio Supervisor, one of the entities described in and which
executed the foregoing instrument, and that he signed his name thereto by
authority of the sole member of said limited liability company.
/s/ MICHAEL ROSELLA
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Notary Public
MICHAEL R. ROSELLA
Notary Public, State of New York
No. 31-5016879
Qualified in New York County
Commission Expires 9/26/2001
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KENNY S&P EVALUATION SERVICES
(a business unit of J.J. Kenny Company, Inc.)
Evaluator
By: /s/ Pat Burns
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Senior Vice President
SEAL
ATTEST:
/s/ Frank A. Ciccotto Jr.
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Vice President
