XXX XXXXXX UNIT TRUSTS, SERIES 889
TRUST AGREEMENT
Dated: September 3, 2009
This Trust Agreement among Xxx Xxxxxx Funds Inc., as Depositor, The Bank of
New York Mellon, as Trustee and Xxxxx & Steers Capital Management, Inc., 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 Xxx Xxxxxx Focus Portfolios
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 Schedule 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
"Statements 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 February 10,
2010, and the tenth day of each month thereafter through June 10, 2010.
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 Xxxxx & Steers Capital Management, Inc.
and its successors in interest, or any successor portfolio supervisor appointed
as provided in the Standard Terms and Conditions of Trust.
10. The term "Trustee" shall mean The Bank of New York Mellon and its
successors in interest or any successor trustee appointed as provided in the
Standard Terms and Conditions of Trust.
11. The second sentence of section 2.01(b) is hereby deleted.
12. 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 the 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."
13. 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."
14. Section 3.07(a)(xiii) of the Standard Terms and Conditions of Trust shall
be replaced in its entirety by 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; or
(xiv) that as result of the ownership of the Security, the Trust or its
Unitholders would be a direct or indirect shareholder of a passive foreign
investment company as defined in section 1297(a) of the United States Internal
Revenue Code of 1986, as amended."
15. If the Trust has elected to be treated as a "regulated investment
company" as defined in the United States Internal Revenue Code of 1986, as
amended, 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 by
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."
16. 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,
Section 3.12(a) of the Standard Terms and Conditions of Trust shall be replaced
in its entirety by 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;"
17. 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
the Trust states that the 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 the Trust portfolio as
shall be necessary to maintain qualification of the Trust as a regulated
investment company and to avoid imposition of tax on the Trust or undistributed
income in the Trust, and the Depositor and Supervisor shall be authorized to
rely conclusively upon such reviews."
18. The first paragraph of Section 4.01 is hereby replaced by the following:
"Section 4.01. Compensation. As compensation for providing supervisory
portfolio services under this Indenture, the Trust will accrue daily and pay to
the Supervisor at the end of each calendar quarter an aggregate annual fee in an
amount equal to 0.075% of the average daily Trust Evaluation (described in
Section 6.01)."
19. Sections 5.01(b) and (c) are replaced in their entirety by the following:
"(b) During the initial offering period of the 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 the 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."
20. Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust and unless the Depositor instructs otherwise, if the Trustee
sells, redeems or otherwise liquidates Securities pursuant to Section 6.02 to
satisfy Unit redemptions, the Trustee shall do so, as nearly as practicable, on
a pro rata basis among all Securities held by the Trust.
21. The seventh paragraph of Section 6.02 is hereby replaced in its entirety
by the following:
"Notwithstanding anything to the contrary in this Section 6.02, if the
Prospectus for the Trust provides for in kind distribution of Securities in
connection with Unit redemptions and a Unitholder tenders at least the minimum
number of Units stated in the Prospectus for redemption, a Unitholder may
request at the time of tender to receive from the Trustee in lieu of cash such
Unitholder's pro rata share of each Security then held by the Trust, provided
that the Security is principally traded in the United States if such limitation
is set forth in the Prospectus for the Trust. Such tendering Unitholder will
receive his pro rata number of whole shares of each of such Securities
comprising the portfolio of the Trust and cash from the Capital Account equal to
the value of the fractional shares and any Securities principally traded outside
the United States to which such tendering Unitholder is entitled and in the case
of an Equity and Treasury Trust such Unitholder's pro rata share of the Zero
Coupon Obligations held by the Trust. Such pro rata share of each Security and
the related cash to which such tendering Unitholder is entitled is referred to
herein as an "In Kind Distribution." An In Kind Distribution 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. 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 herein.
Notwithstanding the preceding paragraph, if a Unitholder electing an In Kind
Distribution is an Affiliated Redeeming Unitholder, as such term is defined
below, such In Kind Distribution shall be permitted subject to the following
conditions:
(a) The In Kind Distribution shall be consistent with the Trust's redemption
policies and undertakings, as set forth in the Trust's Prospectus;
(b) Neither the Affiliated Redeeming Unitholder, nor any other party with the
ability and the pecuniary incentive to influence the In Kind Distribution, may
select, or influence the selection of, the distributed Securities;
(c) Upon an In Kind Distribution by the Affiliated Redeeming Unitholder, the
Trustee shall distribute to the Affiliated Redeeming Unitholder its
proportionate share of every Security in the Trust's portfolio, provided that if
the Trustee is not an affiliated person (as the term "affiliated person" is
defined in the Investment Company Act of 1940, as amended) of the Affiliated
Redeeming Unitholder, the Trustee may exclude Discretionary Assets (as defined
below) from the In Kind Distribution to the extent that the Trustee cannot
practicably distribute such Discretionary Assets without undue burden or adverse
impact to the Trust or its Unitholders. If the Trustee determines that it is
impracticable to distribute the Discretionary Assets in kind, the Trustee shall
sell or liquidate the Discretionary Assets to raise funds to satisfy the
redemption, provided that if the Trustee cannot sell or liquidate the
Discretionary Assets, the Trustee may sell or liquidate other Securities;
(d) The In Kind Distribution may not favor the Affiliated Redeeming
Unitholder to the detriment of any other Unitholder;
(e) The Trustee shall monitor each In Kind Distribution on a quarterly basis
for compliance with all provisions of this Section 6.02; and
(f) The Trustee shall maintain and preserve for a period of not less than six
years from the end of the fiscal year in which the In Kind Distribution occurs,
the first two years in an easily accessible place, records for each In Kind
Distribution setting forth the identity of the Affiliated Redeeming Unitholder,
a description of the composition of the Trust's portfolio (including each
asset's value) immediately prior to the In Kind Distribution, a description of
each Security distributed in-kind, the terms of the In Kind Distribution, the
information or materials upon which the asset valuations were made, and a
description of the composition of the Trust's portfolio (including each asset's
value) one month after the In Kind Distribution.
The term "Affiliated Redeeming Unitholder" shall mean an affiliated person or
a promoter of or a principal underwriter for the Trust, or an affiliated person
of such a person, promoter or principal underwriter. The terms "affiliated
person," "promoter" and "principal underwriter" as used in the preceding
sentence shall have the meanings assigned to each such term in the Investment
Company Act of 1940, as amended.
The term "Discretionary Assets" shall mean (i) securities that, if
distributed, would be required to be registered under the Securities Act of
1933, as amended; (ii) securities issued by entities in countries that (A)
restrict or prohibit the holding of securities by non-nationals other than
through qualified investment vehicles, or (B) permit transfers of ownership of
securities to be effected only by transactions conducted on a local stock
exchange; and (iii) any assets that, although they may be liquid and marketable,
must be traded through the marketplace or with the counterparty to the
transaction in order to effect a change in beneficial ownership.
Notwithstanding anything to the contrary in the Standard Terms and Conditions
of Trust, if the Trust has not elected to be treated as a "regulated investment
company" as defined in the United States Internal Revenue Code of 1986, as
amended, no Unitholder may elect to have Units redeemed through an In Kind
Distribution within thirty (30) days of the Trust termination."
22. 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."
23. 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.
24. Section 9.01 of the Standard Terms and Conditions of Trust shall be
replaced in its entirety by 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
the 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 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 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."
25. Section 9.02 of the Standard Terms and Conditions of Trust shall be
replaced in its entirety by the following:
"Section 9.02. Termination. This Indenture and the Trust created hereby shall
terminate upon the maturity, redemption, sale or other disposition as the case
may be of the last Security held in the 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 the 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 Trust's termination. No Unitholder shall be permitted to
have Units redeemed through an In Kind Distribution within 30 days of the 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 the Trust or, to the extent that funds
are not available in such Account of the Trust, from the Capital Account of the
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 the Trust, and (iii)
any costs, expenses or indemnities in connection with the Trust as provided
herein;
(b) deduct from the Income Account of the Trust or, to the extent that funds
are not available in such Account, from the Capital Account of the Trust, and
pay accrued and unpaid fees of the Depositor, the Supervisor and counsel in
connection with the Trust, if any;
(c) deduct from the Income Account of the Trust or the Capital Account of the
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 the Trust;
(d) make final distributions from the 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 the 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
XXXXX & STEERS CAPITAL MANAGEMENT, INC.
By: /s/ XXXX XXXXXXX
------------------------------------------------
Executive Vice President
THE BANK OF NEW YORK MELLON
By: /s/ XXXXXXX XXXXXX
------------------------------------------------
Vice President
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
XXX XXXXXX UNIT TRUSTS, SERIES 889
[Incorporated herein by this reference and made a part hereof is the
"Portfolio" schedule as set forth in the Prospectus.]
