EXHIBIT 1.1
XXXXXX UNIT INVESTMENT TRUSTS
SERIES 77
TRUST AGREEMENT
This Trust Agreement dated as of March 4, 1999 between Xxxxxx &
Associates, Inc., as Depositor, and The Bank of New York, as Trustee, sets
forth certain provisions in full and incorporates other provisions by
reference to the document entitled "Standard Terms and Conditions of Trust
For Equity Trusts Sponsored by Xxxxxx & Associates, Inc., Effective
January 7, 1997" (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.
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 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 this instrument.
Part II
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
(1) The equity securities listed in the Schedule hereto have been
deposited in trust under this Trust Agreement as indicated in each Trust
named on the attached Schedule.
(2) For the purposes of the definition of the term "Unit" in
Article I, it is hereby specified that the fractional undivided interest
in and ownership of a Trust is the amount set forth in the section
captioned "Essential Information" in the final Prospectus of the Trust
(the "Prospectus") contained in Amendment No. 1 to the Trust's
Registration Statement (Registration No. 333-72605) as filed with the
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Securities and Exchange Commission on March 4, 1999. The fractional
undivided interest may (a) increase by the number of any additional
Units issued pursuant to Section 2.03, (b) increase or decrease in
connection with an adjustment to the number of Units pursuant to
Section 2.03, or (c) decrease by the number of Units redeemed pursuant
to Section 5.02.
(3) The terms "Income Account Record Date" and "Capital Account
Record Date" shall mean the dates set forth under "Essential Information
Record and Computation Dates" in the Prospectus.
(4) The terms "Income Account Distribution Date" and "Capital
Account Distribution Date" shall mean the dates set forth under
"Essential Information Distribution Dates" in the Prospectus.
(5) The term "Initial Date of Deposit" shall mean the date of this
Trust Agreement as set forth above.
(6) The number of Units of a Trust referred to in Section 2.03 is
as set forth under "Essential Information Number of Units" in the
Prospectus.
(7) For the purposes of Section 6.01(g), the liquidation amount
is the amount set forth under "Essential Information Minimum Value of
Trust under which Trust Agreement may be Terminated" in the Prospectus.
(8) Notwithstanding anything to the contrary in the Standard Terms
and Conditions of Trust, the requisite amount of Units needed to be
tendered to exercise an in kind distribution shall be that amount set
forth in the Prospectus.
(9) Section 1.01(21) is hereby stricken and replaced by the
following: "Percentage Ratio" shall mean, for each Trust which will
issue additional Units pursuant to Section 2.03 hereof, the actual
number of shares of each Equity Security as a percent of all shares of
Equity Securities necessary to cause the Trust portfolio to replicate,
to the extent practicable, the Nasdaq-100 Index immediately prior to
any subsequent deposit of Securities as determined by computer program
output operated independent of the Depositor which tracks such index."
(10) Section 2.01(b) is hereby amended by adding the following
immediately after the first sentence of the second paragraph of such
Section the following: "Such additional Securities may be deposited or
purchased in round lots; if the amount of the deposit is insufficient
to acquire round lots of each Security to be acquired, the additional
Securities shall be deposited or purchased in the order of the Securities
in the Trust most under-represented in the Trust's portfolio in
comparison to their percentage weighting in the Nasdaq-100 Index as
determined by computer program output operated independent of the
Depositor which tracks such index."
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(11) The first sentence of Section 2.01(e) is hereby stricken and
replaced with the following:
"If Securities in the Trust are sold pursuant to Sections 3.07 or 8.02
hereof or if there are excess proceeds remaining after meeting redemption
requests pursuant to Section 5.02, and the net proceeds of any such sale
are not otherwise reinvested as provided in such Sections, the net
proceeds of any such sale may be reinvested, if in the opinion of the
Depositor it is in the best interests of the Unitholders to do so, in
short term U.S. Treasury obligations maturing on or prior to the next
succeeding Capital Distribution Date or, if earlier, December 31 of the
year of purchase (the "Reinvestment Securities")."
(12) Section 3.07(a) is hereby amended by adding the following
subsections immediately after Section 3.07(a)(ix):
(x) "that the Security has been removed from the Nasdaq-100 Index; or
(xi) that computer program output operated independent of the Depositor
which tracks the Nasdaq-100 Index indicates that the Security is over-
represented in the Trust's portfolio in comparison to such Security's
percentage weighting in such index."
(13) Section 3.07 is hereby amended by changing the current
subsection (c) to subsection (d) and adding the following as a new
subsection (c):
(c) "In the event a Security is sold pursuant to Section 3.07(a)(x),
the Depositor may direct the reinvestment of the proceeds of the sale of
such Security, to the extent practicable, into any security which
replaces such Security as a component of the Nasdaq-100 Index or, if no
security so replaces such Security, into any other Securities which are
under-represented in the Trust's portfolio in comparison to their
percentage weighting in the Nasdaq-100 Index as determined by computer
program output operated independent of the Depositor which tracks such
index. In the event a Security is sold pursuant to Section 3.07(a)(xi),
the Depositor may direct the reinvestment of the proceeds of the sale of
such Security, to the extent practicable, into any other Securities which
are under-represented in the Trust's portfolio in comparison to their
percentage weighting in the Nasdaq-100 Index as determined by computer
program output operated independent of the Depositor which tracks such
index. Without limiting the generality of the foregoing, in determining
whether such reinvestment is practicable, the Depositor may, but is not
obligated to, specifically consider the ability of the Trust to reinvest
such proceeds into round lots of a Security."
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(14) The second paragraph of Section 3.10 is hereby stricken and
replaced with the following:
"In the event that an offer by the issuer of any of the Securities or any
other party shall be made to issue new securities, or to exchange
securities, for Trust Securities, the Trustee shall reject such offer.
However, should any issuance, exchange or substitution be effected
notwithstanding such rejection or without an initial offer, any
securities, cash and/or property received shall be deposited hereunder
and shall be promptly sold, if securities or property, by the Trustee;
provided, however, if such securities are components of the Nasdaq-100
Index, the Depositor may advise the Trustee to keep such securities.
The cash received in such exchange and cash proceeds of any such sales
shall, in the following priority, be (1) reinvested, to the extent
practicable, into any Securities which are under-represented in the
Trust's portfolio in comparison to their percentage weighting in the
Nasdaq-100 Index as determined by computer program output operated
independent of the Depositor which tracks such index or (2) distributed
to Unitholders on the next Distribution Date in the manner set forth in
Section 3.04(b) regarding distributions from the Capital Account.
Without limiting the generality of the foregoing, in determining whether
such reinvestment is practicable, the Depositor may, but is not obligated
to, specifically consider the ability of the Trust to reinvest such
proceeds into round lots of a Security. Except as provided in
Article VIII, the Trustee shall not be liable or responsible in any way
for depreciation or loss incurred by reason of any such rejection or
sale."
(15) Section 5.02 is hereby amended by adding the following
immediately after the last sentence of the second paragraph of such
Section:
"If Securities in the Trust are sold for the payment of the Redemption
Value and there are excess proceeds remaining after meeting redemption
requests, the Depositor may, but is not obligated to, instruct the
Trustee to reinvest such excess proceeds into any Securities which are
under-represented in the Trust's portfolio in comparison to their
percentage weighting in the Nasdaq-100 Index as determined by computer
program output operated independent of the Depositor which tracks such
index."
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(16) Notwithstanding anything to the contrary herein, if at any
time the Nasdaq-100 Index shall no longer be compiled, maintained or made
available, the Depositor may (a) direct that the Trust created hereby
continue to be operated hereunder utilizing the components of the
Nasdaq-100 Index, and the percentage weightings of such components, as
existed on the last date on which the Nasdaq-100 Index components and
weightings were available to the Trust or (b) direct the Trustee to
terminate this Indenture and the Trust created hereby and liquidate the
Trust in such manner as the Depositor shall direct.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed.
XXXXXX & ASSOCIATES, INC.,
Depositor
By /s/ XXXXX X. XXXXXXXXX
___________________________
President
THE BANK OF NEW YORK,
Trustee
By /s/ Xxxxxxx Xxxxxxxx
___________________________
Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
XXXXXX UNIT INVESTMENT TRUSTS
SERIES 77
(Note: Incorporated herein and made a part hereof are the "Portfolios" as
set forth in the Prospectus.)
