Exhibit 1.1
XXX XXXXXX UNIT TRUSTS, SERIES 666
TRUST AGREEMENT
Dated: April 24, 2007
This Trust Agreement among Xxx Xxxxxx Funds Inc., as Depositor, The
Bank of New York, as Trustee, and Xxx Xxxxxx Asset Management, as Supervisor,
sets forth certain provisions in full and incorporates other provisions by
reference to the document entitled "Standard Terms and Conditions of Trust For
Xxx Xxxxxx Focus Portfolios, Effective for Unit Investment Trusts Established On
and After May 2, 2001 (Including Series 284 and Subsequent Series)" (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, Trustee and Supervisor 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 listed in the Schedules hereto have been deposited in
trust under this Trust Agreement.
2. The fractional undivided interest in and ownership of the Trust
represented by each Unit thereof referred to in Section 1.01(56) is initially an
amount the numerator of which is one and the denominator of which is the amount
set forth under "Units outstanding" for the Trust in the "Statement of
Condition" in the Prospectus.
3. The aggregate number of Units described in Section 2.03(a) for the
Trust is that number of Units set forth under "Units outstanding" for the Trust
in the "Statement of Condition" in the Prospectus.
4. Section 1.01(5) is replaced in its entirety by the following:
"(5) "Business Day" shall mean any day on which the New York Stock
Exchange is open for regular trading."
5. The terms "Capital Account Distribution Date" and "Income Account
Distribution Date" shall mean the "Distribution Dates" set forth in the
"Essential Information" in the Prospectus.
6. The terms "Capital Account Record Date" and "Income Account Record
Date" shall mean the "Record Dates" set forth in the "Essential Information" in
the Prospectus.
7. The term "Deferred Sales Charge Payment Date" shall mean September
10, 2007 and the 10th day of each month thereafter through January 10, 2008 with
respect to the amount designated "Deferred sales charge in first year" in the
"Fee Table" in the Prospectus and September 10, 2008 and the 10th day of each
month thereafter through November 10, 2008 with respect to the amount designated
"Deferred sales charge in second year" in the "Fee Table" in the Prospectus.
8. The term "Mandatory Termination Date" shall mean the "Mandatory
Termination Date" for the Trust set forth in the "Essential Information" in the
Prospectus.
9. The term "Supervisor" shall mean Xxx Xxxxxx Asset Management and
its successors in interest, or any successor portfolio supervisor as provided in
the Standard Terms and Conditions of Trust.
10. Section 3.05 is amended by adding the following subsection
immediately after Section 3.05(a)(iv):
"(v) Notwithstanding any of the previous provisions, if a Trust has
elected to be taxed as a regulated investment company under the United States
Internal Revenue Code of 1986, as amended, the Trustee is directed to make any
distribution or take any action necessary in order to maintain the qualification
of the Trust as a regulated investment company for federal income tax purposes
or to provide funds to make any distribution for a taxable year in order to
avoid imposition of any income or excise taxes on the Trust or on undistributed
income in the Trust."
11. Section 3.05(b)(ii) shall be replaced in is entirety by the
following:
"(ii) For purposes of this Section 3.05, the Unitholder's "Income
Distribution" shall be equal to such Unitholders pro rata share of the balance
in the Income Account calculated on the basis of one-twelfth of the estimated
annual income to the Trust for the ensuing twelve months computed as of the
close of business on the Income Account Record Date immediately preceding such
Income Distribution (or portion or multiple thereof for the first Income
Distribution), after deduction of (1) the fees and expenses then deductible
pursuant to Section 3.05(a) and (2) the Trustee's estimate of other expenses
properly chargeable to the Income Account pursuant to this Indenture which have
accrued, as of such Income Account Record Date or are otherwise properly
attributable to the period to which such Income Distribution relates.
In the event that the amount on deposit in the Income Account is not
sufficient for the payment of the amount intended to be distributed to
Unitholders on the basis of the aforesaid computation, the Trustee is authorized
to advance its own funds and cause to be deposited in and credited to the Income
Account such amounts as may be required to permit payment of the related
distribution to be made as aforesaid and shall be entitled to be reimbursed,
without interest, out of income payments received by the Trust subsequent to the
date of such advance. Any such advance shall be reflected in the Income Account
until repaid."
12. Section 3.07(a)(xiii) of the Standard Terms and Conditions of Trust
shall be replaced in its entirety with the following:
"(xiii) if the Trust has elected to be taxed as a "regulated investment
company" as defined in the United States Internal Revenue Code of 1986, as
amended, that such sale is necessary or advisable (i) to maintain the
qualification of the Trust as a regulated investment company or (ii) to provide
funds to make any distribution for a taxable year in order to avoid imposition
of any income or excise taxes on the Trust or on undistributed income in the
Trust."
13. The first two sentences in the second paragraph of Section 3.11 of
the Standard Terms and Conditions of Trust shall be replaced in their entirety
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 at the direction of the
Depositor, vote for or against, or accept or reject, any offer for new or
exchanged securities or property in exchange for a Trust Security. Should any
issuance, exchange or substitution be effected, any securities, cash and/or
property received shall be deposited hereunder and shall be promptly sold, if
securities or property, by the Trustee pursuant to the Depositor's direction,
unless the Depositor advises the Trustee to keep such securities or property."
14. Section 3.12(a) of the Standard Terms and Conditions of Trust shall
be replaced in its entirety with the following:
"(a) The Replacement Securities shall be Zero Coupon Obligations or
Equity Securities as originally selected for deposit in the Trust or securities
which the Depositor determines to be similar in character as Securities
originally selected for deposit in the Trust, and any Replacement Securities
which are Zero Coupon Obligations must have the same maturity value as the
Failed Contract Security and, as close as is reasonably practical, the same
maturity date, which must be on or prior to the Mandatory Termination Date;"
15. The Standard Terms and Conditions of Trust shall be amended to
include the following section:
"Section 3.19. Regulated Investment Company Election. If the Prospectus
for a Trust states that such Trust intends to elect to be treated and to qualify
as a "regulated investment company" as defined in the United States Internal
Revenue Code of 1986, as amended, the Trustee is hereby directed to make such
elections and take all actions, including any appropriate election to be taxed
as a corporation, as shall be necessary to effect such qualification or to
provide funds to make any distribution for a taxable year in order to avoid
imposition of any income or excise tax on the Trust or on undistributed income
in the Trust. The Trustee shall make such reviews of each Trust portfolio as
shall be necessary to maintain qualification of a particular Trust as regulated
investment company and to avoid imposition of tax on a Trust or undistributed
income in a Trust, and the Depositor and Supervisor shall be authorized to rely
conclusively upon such reviews."
16. Sections 5.01(b) and (c) are replaced in their entirety by the
following:
"(b) During the initial offering period of a Trust (as determined by
the Depositor), the Evaluation for each Security shall be made in the following
manner: (i) with respect to Securities for which market quotations are readily
available, such Evaluation shall be made on the basis of the market value of
such Securities; and (ii) with respect to other Securities, such Evaluation
shall be made on the basis of the fair value of such Securities as determined in
good faith by the Trustee. If the Securities are listed on a national or foreign
securities exchange or traded on the Nasdaq Stock Market, Inc. and market
quotations of such Securities are readily available, the market value of such
Securities shall generally be based on the last available closing sale price on
or immediately prior to the Evaluation Time on the exchange or market which is
the principal market therefor, which shall be deemed to be the New York Stock
Exchange if the Securities are listed thereon. In the case of Zero Coupon
Obligations, such Evaluation shall be made on the basis of current offer side
prices for the Zero Coupon Obligations as obtained from investment dealers or
brokers who customarily deal in securities comparable to those held by the Trust
and, if offer side prices are not available for the Zero Coupon Obligations, on
the basis of offer side price for comparable securities, by determining the
valuation of the Zero Coupon Obligations on the offer side of the market by
appraisal or by any combination of the above. If the Trust holds Securities
denominated in a currency other than U.S. dollars, the Evaluation of such
Security shall be converted to U.S. dollars based on current offering side
exchange rates (unless the Trustee deems such prices inappropriate as a basis
for valuation). For each Evaluation, the Trustee shall also confirm and furnish
to the Depositor the calculation of the Trust Evaluation to be computed pursuant
to Section 6.01.
(c) After the initial offering period of Units of a Trust (as
determined by the Depositor), Evaluation of the Securities shall be made in the
manner described in Section 5.01(b) on the basis of current bid side prices for
Zero Coupon Obligations and the bid side value of any relevant currency exchange
rate expressed in U.S. dollars."
17. Section 6.02 of the Standard Terms and Conditions of Trust shall be
amended by adding the following to the end of such Section:
"Notwithstanding anything to he contrary herein, each Unitholder who
holds Units designated with a "Classic CUSIP" number will be deemed to have
tendered all Units then owned for redemption to the Trustee on the Special
Redemption Date set forth under "Essential Information" in the Prospectus and
shall have such Units redeemed on such date as provided herein."
18. The second sentence of Section 7.01(e)(2)(E) shall be replaced in
its entirety by "Such Prospectus shall also contain disclosure concerning the
Depositor's responsibilities described in (D) above."
19. The Trustee's annual compensation rate described in Section 7.04
shall be that amount set forth under "Trustee's fee and operating expenses" in
the "Fee Table" in the Prospectus.
20. Section 9.01 of the Standard Terms and Conditions of Trust shall be
replaced in its entirety with the following:
"Section 9.01. Amendments. (a) This Indenture may be amended from time
to time by the Depositor and Trustee or their respective successors, without the
consent of any of the Unitholders, (i) to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision contained herein, (ii) to make such other provision in
regard to matters or questions arising hereunder as shall not materially
adversely affect the interests of the Unitholders or (iii) to make such
amendments as may be necessary (a) for the Trust to continue to qualify as a
regulated investment company for federal income tax purposes if the Trust has
elected to be taxed as such under the United States Internal Revenue Code of
1986, as amended, or (b) to prevent the Trust from being deemed an association
taxable as a corporation for federal income tax purposes if the Trust has not
elected to be taxed as a regulated investment company under the United States
Internal Revenue Code of 1986, as amended. This Indenture may not be amended,
however, without the consent of all Unitholders then outstanding, so as (1) to
permit, except in accordance with the terms and conditions hereof, the
acquisition hereunder of any Securities other than those specified in the
Schedules to the Trust Agreement or (2) to reduce the aforesaid percentage of
Units the holders of which are required to consent to certain of such
amendments. This Indenture may not be amended so as to reduce the interest in a
Trust represented by Units (whether evidenced by Certificates or held in
uncertificated form) without the consent of all affected Unitholders.
(b) Except for the amendments, changes or modifications as provided in
Section 9.01(a) hereof, neither the parties hereto nor their respective
successors shall consent to any other amendment, change or modification of this
Indenture without the giving of notice and the obtaining of the approval or
consent of Unitholders representing at least 66 2/3% of the Units then
outstanding of the affected Trust. Nothing contained in this Section 9.01(b)
shall permit, or be construed as permitting, a reduction of the aggregate
percentage of Units the holders of which are required to consent to any
amendment, change or modification of this Indenture without the consent of the
Unitholders of all of the Units then outstanding of the affected Trust and in no
event may any amendment be made which would (1) alter the rights to the
Unitholders as against each other, (2) provide the Trustee with the power to
engage in business or investment activities other than as specifically provided
in this Indenture, (3) adversely affect the tax status of the Trust for federal
income tax purposes or result in the Units being deemed to be sold or exchanged
for federal income tax purposes or (4) unless the Trust has elected to be taxed
as a regulated investment company for federal income tax purposes, result in a
variation of the investment of Unitholders in the Trust.
(c) Unless the Depositor directs that other notice shall be provided,
the Trustee shall include in the annual report provided pursuant to Section 3.06
notification of the substance of such amendment."
21. Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, no Unitholder may elect to have Units redeemed through an
In Kind Distribution within thirty (30) days of any Trust termination.
22. Section 9.02. Termination. This Indenture and each Trust created
hereby shall terminate upon the maturity, redemption, sale or other disposition
as the case may be of the last Security held in such Trust hereunder unless
sooner terminated as hereinbefore specified, and may be terminated at any time
by the written consent of Unitholders representing at least 66 2/3% of the Units
of the Trust then outstanding; provided that in no event shall any Trust
continue beyond the Mandatory Termination Date. Upon the date of termination the
registration books of the Trustee shall be closed.
In the event of a termination, the Trustee shall proceed to liquidate
the Securities then held and make the payments and distributions provided for
hereinafter in this Section 9.02 based on such Unitholder's pro rata interest in
the balance of the Capital and Income Accounts after the deductions herein
provided. Written notice shall be given by the Trustee in connection with any
termination to each Unitholder at his address appearing on the registration
books of the Trustee and in connection with a Mandatory Termination Date such
notice shall be given no later than 45 days before the Mandatory Termination
Date. Included with such notice shall be a form to enable Unitholders owning
that number of Units referred to in the Prospectus to request an In Kind
Distribution (as described in Section 6.02) during the period ending 31 days
prior to date of the related Trust's termination. No Unitholder shall be
permitted to have Units redeemed through an In Kind Distribution within 30 days
of any Trust termination.
The Trustee will liquidate the Securities then held, if any, in such
daily amounts as the Depositor shall direct. The Depositor shall direct the
liquidation of the Securities in such manner as to effectuate orderly sales and
a minimal market impact. In the event the Depositor 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. The Trustee shall not be
liable for or responsible in any way for depreciation or loss incurred by reason
of any sale or sales made in accordance with the Depositor's direction or, in
the absence of such direction, in the exercise of the discretion granted by this
Section 9.02. The Trustee shall deduct from the proceeds of these sales and pay
any tax or governmental charges and any brokerage commissions in connection with
such sales. Amounts received by the Trustee representing the proceeds from the
sales of Securities shall be credited to the related Capital Account.
Not later than the fifth Business Day following receipt of all proceeds
of sale of the Securities, the Trustee shall:
(a) deduct from the Income Account of such Trust or, to the extent that
funds are not available in such Account of such Trust, from the Capital Account
of such Trust, and pay to itself individually an amount equal to the sum of (i)
its accrued compensation for its ordinary recurring services, (ii) any
compensation due it for its extraordinary services in connection with such
Trust, and (iii) any costs, expenses or indemnities in connection with such
Trust as provided herein;
(b) deduct from the Income Account of such Trust or, to the extent that
funds are not available in such Account, from the Capital Account of such Trust,
and pay accrued and unpaid fees of the Depositor, the Supervisor and counsel in
connection with such Trust, if any;
(c) deduct from the Income Account of such Trust or the Capital Account
of such Trust any amounts which may be required to be deposited in the Reserve
Account and any other amounts which may be required to meet expenses incurred
under this Indenture in connection with such Trust;
(d) make final distributions from such Trust, against surrender for
cancellation of all of each Unitholder's Certificate or Certificates, if issued,
as follows:
(i) to each Unitholder, such Unitholder's pro rata share of the cash
balances of the Income and Capital Accounts; and
(ii) on the conditions set forth in Section 3.04 hereof, to each
Unitholder such Unitholder's pro rata share of the balance of the Reserve
Account; and
(e) within 60 days after the distribution to each Unitholder as
provided for in (d), furnish to each such Unitholder a final distribution
statement, setting forth the data and information in substantially the form and
manner provided for in Section 3.06 hereof.
The Trustee shall be under no liability with respect to moneys held by
it in the Income, Reserve and Capital Accounts of a Trust upon termination
except to hold the same in trust within the meaning of the Investment Company
Act of 1940, without interest until disposed of in accordance with the terms of
this Indenture.
IN WITNESS WHEREOF, the undersigned have caused this Trust Agreement to
be executed; all as of the day, month and year first above written.
XXX XXXXXX FUNDS INC.
By /s/ XXXX X. XXXXXXX
-------------------------------------
Executive Director
XXX XXXXXX ASSET MANAGEMENT
By /s/ XXXX X. XXXXXXX
-------------------------------------
Executive Director
THE BANK OF NEW YORK
By /s/ XXXXXXX X'XXXXX
----------------------------------------
Vice President
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
XXX XXXXXX UNIT TRUSTS, SERIES 666
[Incorporated herein by this reference and made a part hereof is the
"Portfolio" schedule as set forth in the Prospectus.]
