Exhibit 1.1
XXX XXXXXX UNIT TRUSTS, SERIES 649
TRUST AGREEMENT
Dated: March 1, 2007
This Trust Agreement among Xxx Xxxxxx Funds Inc., as Depositor, The Bank of
New York, as Trustee, 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 Schedule hereto have been deposited in trust
under this Trust Agreement.
2. The fractional undivided interest in and ownership of each 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 "Statements of
Condition" in the Prospectus.
3. The aggregate number of Units described in Section 2.03(a) for a 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 June 10, 2007 and
the 10th day of each month thereafter through October 10, 2007.
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 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. 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."
12. With respect to any Trust that has not elected to be taxed as a
"regulated investment company" as defined in the United States Internal Revenue
Code of 1986, as amended, 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 1.671-5T(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. 1.675-5T(c)(2)(v)(C), and shall
interpreted consistent therewith and with any successor regulation."
13. 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."
14. 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 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. 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.
18. 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 pursuant
to Section 9.02.
19. 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."
20. 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."
21. 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.
22. 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."
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 649
[Incorporated herein by this reference and made a part hereof is the
"Portfolio" schedule as set forth in the Prospectus.]
