Executed in 6 Parts
Counterpart No. ( )
NATIONAL EQUITY TRUST
TOP TEN PORTFOLIO SERIES 5
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated June 2, 1997 among Prudential
Securities Incorporated, as Depositor and The Chase Manhattan Bank, as Trustee,
sets forth certain provisions in full and incorporates other provisions by
reference to the document entitled "National Equity Trust Low Five Portfolio
Series, Trust Indenture and Agreement" (the "Basic Agreement") dated April 25,
1995, as amended. Such provisions as are set forth in full herein and such
provisions as are incorporated by reference constitute a single instrument (the
"Indenture").
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
Part I.
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II hereof, all the provisions
contained in the Basic Agreement 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 Basic Agreement is hereby amended in the following
manner:
A. Article I, entitled "Definitions", paragraph 22, shall
be amended as follows:
"Trustee shall mean The Chase Manhattan Bank
or any successor trustee appointed as
hereinafter provided."
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B. Article II, entitled "Deposit of Securities;
Acceptance of Trust", shall be amended as follows:
The second sentence of Section 2.03 Issue of Units shall be
amended by deleting the words "on any day on which the Depositor
is the only Unit Holder."
C. Article III, entitled "Administration of Trust", shall
be amended as follows:
(i) The first part of the first sentence of Section 3.01 Initial
Costs shall be amended to substitute the following language
before the phrase "provided, however":
"With respect to the Trust, the cost of the preparation and
printing of the Indenture, Registration Statement and other
documents relating to the Trust, Federal and State registration
fees and costs, the initial fees and expenses of the Trustee,
legal and auditing expenses and other out-of-pocket
organizational expenses, to the extent not borne by the
Depositor, shall be paid by the Trust;"
Section 3.01 shall be further amended to add the following
language:
"To the extent the funds in the Income and Principal Accounts of
the Trust shall be insufficient to pay the expenses borne by the
Trust specified in this Section 3.01, the Trustee shall advance
out of its own funds and cause to be deposited and credited to
the Income Account such amount as may be required to permit
payment of such expenses. The Trustee shall be reimbursed for
such advance on each Record Date from funds on hand in the Income
Account or, to the extent funds are not available in such
Account, from the Principal Account in the amount deemed to have
accrued as of such Record
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Date as provided in the following sentence (less prior payments
on account of such advances, if any), and the provisions of
Section 6.04 with respect to the reimbursement of disbursements
for Trust expenses, including, without limitation, the lien in
favor of the Trustee therefor and the authority to sell
Securities as needed to fund such reimbursement, shall apply to
the payment of expenses and the amounts advanced pursuant to this
Section. For the purposes of the preceding sentence and the
addition provided in clause (a)(3) of Section 5.01, the expenses
borne by the Trust pursuant to this Section shall be deemed to
have been paid on the date of the Reference Trust Agreement and
to accrue at a daily rate over the time period specified for
their amortization provided in the Prospectus; provided, however,
that nothing herein shall be deemed to prevent, and the Trustee
shall be entitled to, full reimbursement for any advances made
pursuant to this Section no later than the termination of the
Trust. For purposes of calculating the accrual of organizational
expenses under this Section 3.01, the Trustee shall rely on the
written estimates of such expenses provided by the Depositor
pursuant to Section 5.01."
(ii) The third paragraph of Section 3.05 Distribution shall be amended
to add the following sentence at the end thereof:
"The Trustee shall make a special distribution of the cash
balance in the Income and Principal accounts available for such
distribution to Unit Holders of record on such dates as the
Depositor shall direct."
(iii) The second to the last paragraph of Section 3.08 Sale of
Securities shall be
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amended to replace the word "equal" with the following phrase:
"be sufficient to pay."
D. Article V, entitled "Trust Evaluation, Redemption, Transfer of
Units," Section 5.01 Trust Evaluation shall be amended as follows:
(i) the second sentence of the first paragraph of Section 5.01 shall
be amended by deleting the word "and" appearing at the end of
subsection (a)(2) of such sentence and inserting the following
after "(a)(3)": "amounts representing organizational expenses
paid from the Trust less amounts representing accrued
organizational expenses of the Trust, and (a)(4)."
(ii) The following shall be added at the end of the first paragraph of
Section 5.01:
Until the Depositor has informed the Trustee that there will
be no further deposits of Additional Securities pursuant to
section 3.06, the Depositor shall provide the Trustee with
written estimates of (i) the total organizational expenses to be
borne by the Trust pursuant to Section 3.01 and (ii) the total
number of Units to be issued in connection with the initial
deposit and all anticipated deposits of Additional Securities.
For purposes of calculating the value of the Trust and Unit
Value, the Trustee shall treat all such anticipated expenses as
having been paid and all liabilities therefor as having been
incurred, and all Units as having been issued, in each case on
the date of the Reference Trust Agreement, and, in connection
with each such calculation, shall take into account a pro rata
portion of such expense and liability based on the actual number
of Units issued as of the date of such calculation. In the event
the Trustee
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is informed by the Depositor of a revision in its estimate of
total expenses or total Units and upon the conclusion of the
deposit of Additional Securities, the Trustee shall base
calculations made thereafter on such revised estimates or actual
expenses, respectively, but such adjustment shall not affect
calculations made prior thereto and no adjustment shall be made
in respect thereof.
(iii) The second paragraph of Section 5.01 shall be amended by
replacing "(a)(3)" with "(a)(4)" in the first line.
E. Reference to United States Trust Company of New York in its capacity
as Trustee is replaced by the Chase Manhattan Bank throughout the
Basic Agreement.
Part II.
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
A. The Trust is denominated National Equity Trust, Top Ten
Portfolio Series 5.
B. The Units of the Trust shall be subject to a deferred sales
charge.
C. The contracts for the purchase of common stock listed in
Schedule A hereto are those which, subject to the terms of this
Indenture, have been or are to be deposited in Trust under this
Indenture as of the date hereof.
D. The term "Depositor" shall mean Prudential Securities
Incorporated.
E. The aggregate number of Units referred to in Sections 2.03
and 9.01 of the Basic Agreement is 500,000 as of the date hereof.
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F. A Unit of the Trust is hereby declared initially equal to
1/500,000th of the Trust.
G. The term "First Settlement Date" shall mean June 6, 1997.
H. The terms "Computation Day" and "Record Date" shall
mean August 10, 1997, November 10, 1997, February 10, 1998, and
May 10, 1998.
I. The term "Distribution Date" shall mean August 25 1997,
November 25, 1997, February 25, 1998, and May 25, 1998.
J. The term "Termination Date" shall mean July 8, 1998.
K. The Trustee's Annual Fee shall be $0.79 (per 1,000 Units)
for 100,000,000 and above units outstanding; $0.85 (per 1,000 Units)
for 50,000,000 - 99,999,999 units outstanding; $0.91 (per 1,000 Units)
for 49,999,999 and below units outstanding. In calculating the
Trustee's annual fee, the fee applicable to the number of units
outstanding shall apply to all units outstanding.
L. The Depositor's Portfolio supervisory service fee shall be
$0.25 per 1,000 Units.
[Signatures and acknowledgments on separate pages]
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The Schedule of Portfolio Securities in Part A of the prospectus
included in this Registration Statement for National Equity Trust, Top
Ten Portfolio Series 5 is hereby incorporated by reference herein as
Schedule A hereto.
