Exhibit 1.1
XXX XXXXXX UNIT TRUSTS, SERIES 894
TRUST AGREEMENT
Dated: July 30, 2009
This Trust Agreement among Xxx Xxxxxx Funds Inc., as Depositor, The Bank of
New York Mellon, 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 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
"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 December 10,
2009, and the tenth day of each month thereafter through April 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 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. 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. 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. 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. 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."
12. Section 3.05 is hereby amended by adding the following immediately after
Section 3.05(b)(v):
"(vi) Notwithstanding the foregoing, the Trustee shall not be required to
make a distribution from the Income Account or the Capital Account unless the
aggregate cash for distribution within the meaning of Treas. Reg 1.671-5(b)(5)
from the Income Account and the Capital Account is equal to or greater than 1%
of the net asset value of the Trust on the related Record Date. This provision
is intended to comply with Treas. Reg. 1.671-5(c)(2)(v)(C), and shall
interpreted consistent therewith and with any successor regulation."
13. Sections 3.11 is revised by replacing the first paragraph of such Section
with the following:
"Section 3.11. Notice to Depositor. In the event that the Trustee shall have
been notified at any time of any action to be taken or proposed to be taken with
respect to the Securities (including but not limited to the making of any
demand, direction, request, giving of any notice, consent or waiver or the
voting with respect to any amendment or supplement to any indenture, resolution,
agreement or other instrument under or pursuant to which the Securities have
been issued) the Trustee shall promptly notify the Depositor and shall thereupon
take such action or refrain from taking any action, as appropriate, so as to
insure that such Securities are voted as closely as possible in the same manner
and the same general proportion, with respect to all issues, as are the shares
of such Securities held by owners other than the Trust."
14. 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."
15. 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.
16. The seventh paragraph of Section 6.02 is hereby replaced in its entirety
with the following:
"Notwithstanding anything to the contrary in this Section 6.02, if the
Prospectus for a 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 such 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 such 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, no Unitholder may elect to have Units redeemed through an In Kind
Distribution within thirty (30) days of any Trust termination."
17. The second sentence of Section 7.01(e)(2)(E) shall be replaced in its
entirety by the following:
"Such Prospectus shall also contain disclosure concerning the Depositor's
responsibilities described in (D) above."
18. 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.
19. Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, the Trustee shall waive or offset fees otherwise payable by
the Trust pursuant to Section 3.05 in an amount equal to any compensation
(including, but not limited to, fees paid pursuant to a plan adopted by the
issuer of a Security under Rule 12b-1 under the Investment Company Act of 1940)
received by the Depositor, the Trustee or any Affiliated Person of the Depositor
or Trustee from the issuer of a Security in connection with the Trust's
investment in such Security. The term "Affiliated Person" shall mean "affiliated
person" as that term is defined in section 2 of the Investment Company Act of
1940 and rules promulgated thereunder.
20. Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, if the Trustee sells, redeems or otherwise liquidates
Securities pursuant to Section 6.02 to satisfy Unit redemptions or pursuant to
Section 7.04 to pay Trust expenses, the Trustee shall do so, as nearly as
practicable, on a pro rata basis among all Securities held by the Trust
21. 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 to prevent the Trust from being deemed an
association taxable as a corporation for federal income tax purposes. 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) 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."
22. Section 9.02 of the Standard Terms and Conditions of Trust shall be
replaced in its entirety with 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 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 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 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
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Executive Director
XXX XXXXXX ASSET MANAGEMENT
By /s/ XXXX X. XXXXXXX
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Executive Director
THE BANK OF NEW YORK MELLON
By /s/ XXXXXXX XXXXXX
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Vice President
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
XXX XXXXXX UNIT TRUSTS, SERIES 894
[Incorporated herein by this reference and made a part hereof is the
"Portfolio" schedule as set forth in the Prospectus.]
