Exhibit 1.1
XXX XXXXXX UNIT TRUSTS, SERIES 443
TRUST AGREEMENT
Dated: April 1, 2005
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 Trusts
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 "Initial number of Units" for
the Trust in the "Summary of Essential Financial Information" in the
Prospectus.
3. The aggregate number of Units described in Section 2.03(a) for the
Trusts is that number of Units set forth under "Initial number of
Units" for each Trust in the "Summary of Essential Financial
Information" 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 "Summary of Essential Financial 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 "Summary of
Essential Financial Information" in the Prospectus.
7. The term "Deferred Sales Charge Payment Date" shall mean August 10,
2005 and the 10th day of each month thereafter through December 10,
2005.
8. The term "Mandatory Termination Date" shall mean the "Mandatory
Termination Date" for each Trust set forth in the "Summary of
Essential Financial Information" in the Prospectus.
9. The term "Supervisor" shall mean Xxx Xxxxxx Asset Management and it
successors in interest or any successor supervisor appointed as
provided in the Standard Terms and Conditions of Trust.
10. Section 2.01(b) shall be replaced in its entirety by the following:
"(b) From time to time following the Initial Date of Deposit, the
Depositor, or the Distribution Agent acting on behalf of Rollover
Unitholders, is hereby authorized, in its discretion, to assign,
convey to and deposit with the Trustee (i) additional Securities, duly
endorsed in blank or accompanied by all necessary instruments of
assignment and transfer in proper form (or purchase contracts relating
to Contract Securities), and/or (ii) cash (or a Letter of Credit in
lieu of cash) with instructions to purchase additional Securities, in
an amount equal to the portion of the Unit Value of the Units created
by such deposit attributable to the Securities to be purchased
pursuant to such instructions. Such deposit of additional Securities
or cash with instructions to purchase additional Securities shall be
made, in each case, pursuant to a Supplemental Indenture accompanied
by a legal opinion issued by legal counsel satisfactory to the
Depositor. Instructions to purchase additional Securities shall be in
writing, and shall specify the name of the Security, CUSIP number, if
any, aggregate amount, price or price range and date to be purchased.
When requested by the Trustee, the Depositor shall act as broker or
agent to execute purchases in accordance with such instructions; the
Depositor shall be entitled to compensation therefor in accordance
with applicable law and regulations. The Trustee shall have no
liability for any loss or depreciation resulting from any purchase
made pursuant to the Depositor's instructions or made by the Depositor
as broker, except by reason of its own negligence, lack of good faith
or willful misconduct.
In connection with any deposit pursuant to this Section 2.01(b)
in an Equity and Treasury Trust, the Depositor shall be obligated to
determine that the maturity value of the Zero Coupon Obligations
included in the deposit, divided by the number of Units created by
reason of the deposit, shall equal at least $11.00.
The Depositor, or the Distribution Agent acting on behalf of
Rollover Unitholders, in each case, shall ensure that each deposit of
additional Securities pursuant to this Section shall be, as nearly as
is practicable, in the identical ratio as the Percentage Ratio for
such Securities. With respect to an Index Trust, 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
weighting in the Trust's Target Index. The Depositor shall deliver the
additional Securities which were not delivered concurrently with the
deposit of additional Securities and which were represented by
Contract Securities within 10 calendar days after such deposit of
additional Securities (the "Additional Securities Delivery Period").
If a contract to buy such Securities between the Depositor and seller
is terminated by the seller thereof for any reason beyond the control
of the Depositor or if for any other reason the Securities are not
delivered to the Trust by the end of the Additional Securities
Delivery Period for such deposit, the Trustee shall immediately draw
on the Letter of Credit, if any, in its entirety, apply the moneys in
accordance with Section 2.01(d), and the Depositor shall forthwith
take the remedial action specified in Section 3.12. If the Depositor
does not take the action specified in Section 3.12 within 10 calendar
days of the end of the Additional Securities Delivery Period, the
Trustee shall forthwith take the action specified in Section 3.12."
11. 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."
12. Section 6.05(a) shall be replaced in its entirety by the following:
"(a) If the Depositor shall offer a subsequent series of a Trust
(the "New Series"), the Trustee shall, if so directed and at the time
specified by the Depositor, send a form of election to Unitholders
(which may be included in the notice sent to Unitholders specified in
Section 9.02) whereby Unitholders, whose redemption distribution would
be in an amount sufficient to purchase at least one Unit of the New
Series, may elect to (i) have their Units redeemed through an In Kind
Distribution in the manner provided in Section 6.02, (ii) have the
Distribution Agent make a determination as to which Securities, if
any, are identical to securities contained in the New Series ("Common
Securities"), (iii) have the Distribution Agent sell Securities which
are not Common Securities, and (iv) have the Common Securities and the
cash proceeds from the sale of other Securities applied by the
Distribution Agent to purchase Units of the New Series, all as
hereinafter provided. The Trustee shall honor properly completed
election forms returned to the Trustee, accompanied by any Certificate
evidencing Units tendered for redemption or a properly completed
redemption request with respect to uncertificated Units, by its close
of business five days prior to the Special Redemption Date.
All Units so tendered by a Unitholder (a "Rollover Unitholder")
shall be redeemed and canceled on the Special Redemption Date. Subject
to payment by such Rollover Unitholder of any tax or other
governmental charges which may be imposed thereon, such redemption is
to be made through an In Kind Distribution pursuant to Section 6.02 by
distribution of cash and/or Securities to the Distribution Agent on
the Special Redemption Date (herein called the "Rollover
Distribution"). Any Securities that are made part of the Rollover
Distribution shall be valued for purposes of the Rollover Distribution
as of the Special Redemption Date.
The Distribution Agent shall determine, based on the value of a
Unitholder's Rollover Distribution, the maximum number of Units of the
New Series such Unitholder is able to purchase using such Rollover
Distribution. Thereafter, based upon the composition of the portfolio
securities of the New Series, the Distribution Agent will calculate
the number of Common Securities to be contributed to create the
requisite number of Units of the New Series specified above. All
Securities, other than the Common Securities to be contributed to the
New Series, included in a Unitholder's Rollover Distribution shall be
sold by the Distribution Agent on the Special Redemption Date pursuant
to the Depositor's direction, and the Distribution Agent may employ
the Depositor as broker or agent in connection with such sales. For
such brokerage services, the Depositor shall be entitled to
compensation at its customary rates, provided however, that its
compensation shall not exceed the amount authorized by applicable laws
and regulations. In the event the Depositor does not direct the manner
in which Securities are to be sold, the Securities shall be sold in
such manner as the Distribution Agent, in its sole discretion, shall
determine. The Distribution Agent shall have no responsibility for any
loss or depreciation incurred by reason of any sale made pursuant to
this Section 6.05.
Upon each trade date for sales of non-Common Securities included
in the Rollover Unitholder's Rollover Distribution, the Distribution
Agent shall, as agent for such Rollover Unitholder, enter into a
contract with the Depositor to purchase from the Depositor Units of
the New Series (if any), at the public offering price for such Units
on the Special Redemption Date or, if so instructed by the Rollover
Unitholder, such other date as may be permitted by and described in
the Prospectus. Such contract shall provide for purchase of the
maximum number of Units of the New Series whose purchase price is
equal to or less than the value of the Common Securities to be
contributed and the cash proceeds held by the Distribution Agent for
the Unitholder on such day (including therein the proceeds anticipated
to be received in respect of Securities traded on such day net of all
brokerage fees, governmental charges and any other expenses incurred
in connection with such sale), to the extent Units are available for
purchase from the Depositor. In the event a sale of non-Common
Securities included in the Rollover Unitholder's Rollover Distribution
shall not be consummated in accordance with its terms, the
Distribution Agent shall apply the cash proceeds held for such
Unitholder as of the settlement date for the purchase of Units of the
New Series to purchase the maximum number of Units of the New Series
which such cash balance will permit, and the Depositor agrees that the
settlement date for Units of the New Series whose purchase was not
consummated as a result of insufficient funds will be extended until
cash proceeds from the Rollover Distribution are available in a
sufficient amount to settle such purchase. If the Unitholder's
Rollover Distribution will produce insufficient cash proceeds to
purchase all of the Units of the New Series contracted for, the
Depositor agrees that the contract shall be rescinded with respect to
the Units of the New Series as to which there was a cash shortfall
without any liability to the Rollover Unitholder or the Distribution
Agent. Any cash balance remaining after such purchase shall be
distributed within a reasonable time to the Rollover Unitholder. Units
of the New Series will be uncertificated unless and until the Rollover
Unitholder requests a certificate. Any cash held by the Distribution
Agent shall be held in a non-interest bearing account which will be of
benefit to the Distribution Agent in accordance with normal banking
procedures. Neither the Trustee nor the Distribution Agent shall have
any responsibility or liability for loss or depreciation resulting
from any reinvestment made in accordance with this Section 6.05, or
for any failure to make such reinvestment in the event the Depositor
does not make Units available for purchase."
13. 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. "
14. 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.
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
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Vice President
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
XXX XXXXXX UNIT TRUSTS, SERIES 443
[Incorporated herein by this reference and made a part hereof is each
"Portfolio" schedule as set forth in the Prospectus.]