FT 1028
TRUST AGREEMENT
Dated: October 31, 2005
The Trust Agreement among First Trust Portfolios, L.P., as
Depositor, The Bank of New York, as Trustee and First Trust
Advisors L.P., as Evaluator and Portfolio Supervisor, sets forth
certain provisions in full and incorporates other provisions by
reference to the document entitled "Standard Terms and Conditions
of Trust for FT 785 and certain subsequent Series, Effective
December 9, 2003" (herein called the "Standard Terms and
Conditions of Trust"), 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, the Trustee, the
Evaluator and the Portfolio Supervisor agree as follows:
PART I
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II and Part III 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 DOWSM TARGET 10 PORTFOLIO, NOVEMBER 2005 SERIES
The following special terms and conditions are hereby agreed
to:
A. The Securities initially deposited in the Trust pursuant
to Section 2.01 of the Standard Terms and Conditions of Trust are
set forth in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the
Trust on the Initial Date of Deposit and the initial fractional
undivided interest in and ownership of the Trust represented by
each Unit thereof are set forth in the Prospectus in the section
"Summary of Essential Information."
Documents representing this number of Units for the Trust
are being delivered by the Trustee to the Depositor pursuant to
Section 2.03 of the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as
set forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus
under "Summary of Essential Information."
E. The Distribution Date shall be as set forth in the
Prospectus under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as
set forth in the Prospectus under "Summary of Essential
Information."
G. First Trust Advisors L.P.'s compensation as referred to
in Section 4.03 of the Standard Terms and Conditions of Trust and
FTP Services LLC's compensation as referred to in Section 3.16 of
the Standard Terms and Conditions of Trust shall collectively be
an annual fee in the amount of $.0060 per Unit.
H. The Trustee's Compensation Rate pursuant to Section 6.04
of the Standard Terms and Conditions of Trust shall be an annual
fee in the amount of $.0065 per Unit, calculated based on the
largest number of Units outstanding during the calendar year
except during the initial offering period as determined in
Section 4.01 of this Indenture, in which case the fee is
calculated based on the largest number of units outstanding
during the period for which the compensation is paid (such annual
fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year).
However, in no event, except as may otherwise be provided in the
Standard Terms and Conditions of Trust, shall the Trustee receive
compensation in any one year from any Trust of less than $2,000
for such annual compensation.
I. The Initial Date of Deposit for the Trust is October 31,
2005.
J. The minimum amount of Securities to be sold by the
Trustee pursuant to Section 5.02 of the Indenture for the
redemption of Units shall be 100 shares.
K. The minimum number of Units a Unit holder must redeem in
order to be eligible for an in-kind distribution of Securities
pursuant to Section 5.02 shall be 2,500 Units of the Trust. L.
The minimum number of Units a Unit holder must tender in order to
be eligible for an in-kind distribution of Securities pursuant to
Section 8.02 shall be 2,500 Units of the Trust.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
THE DOWSM TARGET DIVIDEND PORTFOLIO, NOVEMBER 2005 SERIES
The following special terms and conditions are hereby agreed
to:
A. The Securities initially deposited in the Trust pursuant
to Section 2.01 of the Standard Terms and Conditions of Trust are
set forth in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the
Trust on the Initial Date of Deposit and the initial fractional
undivided interest in and ownership of the Trust represented by
each Unit thereof are set forth in the Prospectus in the section
"Summary of Essential Information."
Documents representing this number of Units for the Trust
are being delivered by the Trustee to the Depositor pursuant to
Section 2.03 of the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as
set forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus
under "Summary of Essential Information."
E. The Distribution Date shall be as set forth in the
Prospectus under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as
set forth in the Prospectus under "Summary of Essential
Information."
G. First Trust Advisors L.P.'s compensation as referred to
in Section 4.03 of the Standard Terms and Conditions of Trust and
FTP Services LLC's compensation as referred to in Section 3.16 of
the Standard Terms and Conditions of Trust shall collectively be
an annual fee in the amount of $.0060 per Unit.
H. The Trustee's Compensation Rate pursuant to Section 6.04
of the Standard Terms and Conditions of Trust shall be an annual
fee in the amount of $.0065 per Unit, calculated based on the
largest number of Units outstanding during the calendar year
except during the initial offering period as determined in
Section 4.01 of this Indenture, in which case the fee is
calculated based on the largest number of units outstanding
during the period for which the compensation is paid (such annual
fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year).
However, in no event, except as may otherwise be provided in the
Standard Terms and Conditions of Trust, shall the Trustee receive
compensation in any one year from any Trust of less than $2,000
for such annual compensation.
I. The Initial Date of Deposit for the Trust is October 31,
2005.
J. The minimum amount of Securities to be sold by the
Trustee pursuant to Section 5.02 of the Indenture for the
redemption of Units shall be 100 shares.
K. The minimum number of Units a Unit holder must redeem in
order to be eligible for an in-kind distribution of Securities
pursuant to Section 5.02 shall be 2,500 Units of the Trust.
L. The minimum number of Units a Unit holder must tender in
order to be eligible for an in-kind distribution of Securities
pursuant to Section 8.02 shall be 2,500 Units of the Trust.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
TARGET VIP PORTFOLIO, NOVEMBER 2005 SERIES
The following special terms and conditions are hereby agreed
to:
A. The Securities initially deposited in the Trust pursuant
to Section 2.01 of the Standard Terms and Conditions of Trust are
set forth in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the
Trust on the Initial Date of Deposit and the initial fractional
undivided interest in and ownership of the Trust represented by
each Unit thereof are set forth in the Prospectus in the section
"Summary of Essential Information."
Documents representing this number of Units for the Trust
are being delivered by the Trustee to the Depositor pursuant to
Section 2.03 of the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as
set forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus
under "Summary of Essential Information."
E. The Distribution Date shall be as set forth in the
Prospectus under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as
set forth in the Prospectus under "Summary of Essential
Information."
G. First Trust Advisors L.P.'s compensation as referred to
in Section 4.03 of the Standard Terms and Conditions of Trust and
FTP Services LLC's compensation as referred to in Section 3.16 of
the Standard Terms and Conditions of Trust shall collectively be
an annual fee in the amount of $.0060 per Unit.
H. The Trustee's Compensation Rate pursuant to Section 6.04
of the Standard Terms and Conditions of Trust shall be an annual
fee in the amount of $.0065 per Unit, calculated based on the
largest number of Units outstanding during the calendar year
except during the initial offering period as determined in
Section 4.01 of this Indenture, in which case the fee is
calculated based on the largest number of units outstanding
during the period for which the compensation is paid (such annual
fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year).
However, in no event, except as may otherwise be provided in the
Standard Terms and Conditions of Trust, shall the Trustee receive
compensation in any one year from any Trust of less than $2,000
for such annual compensation.
I. The Initial Date of Deposit for the Trust is October 31,
2005.
J. The minimum amount of Securities to be sold by the
Trustee pursuant to Section 5.02 of the Indenture for the
redemption of Units shall be 100 shares.
K. The minimum number of Units a Unit holder must redeem in
order to be eligible for an in-kind distribution of Securities
pursuant to Section 5.02 shall be 5,000 Units of the Trust.
L. The minimum number of Units a Unit holder must tender in
order to be eligible for an in-kind distribution of Securities
pursuant to Section 8.02 shall be 5,000 Units of the Trust.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
VALUE LINE(R) TARGET 25 PORTFOLIO, NOVEMBER 2005 SERIES
The following special terms and conditions are hereby agreed
to:
A. The Securities initially deposited in the Trust pursuant
to Section 2.01 of the Standard Terms and Conditions of Trust are
set forth in the Schedules hereto.
B. (1) The aggregate number of Units outstanding for the
Trust on the Initial Date of Deposit and the initial fractional
undivided interest in and ownership of the Trust represented by
each Unit thereof are set forth in the Prospectus in the section
"Summary of Essential Information."
Documents representing this number of Units for the Trust
are being delivered by the Trustee to the Depositor pursuant to
Section 2.03 of the Standard Terms and Conditions of Trust.
C. The Percentage Ratio on the Initial Date of Deposit is as
set forth in the Prospectus under "Schedule of Investments."
D. The Record Date shall be as set forth in the prospectus
under "Summary of Essential Information."
E. The Distribution Date shall be as set forth in the
Prospectus under "Summary of Essential Information."
F. The Mandatory Termination Date for the Trust shall be as
set forth in the Prospectus under "Summary of Essential
Information."
G. First Trust Advisors L.P.'s compensation as referred to
in Section 4.03 of the Standard Terms and Conditions of Trust and
FTP Services LLC's compensation as referred to in Section 3.16 of
the Standard Terms and Conditions of Trust shall collectively be
an annual fee in the amount of $.0060 per Unit.
H. The Trustee's Compensation Rate pursuant to Section 6.04
of the Standard Terms and Conditions of Trust shall be an annual
fee in the amount of $.0065 per Unit, calculated based on the
largest number of Units outstanding during the calendar year
except during the initial offering period as determined in
Section 4.01 of this Indenture, in which case the fee is
calculated based on the largest number of units outstanding
during the period for which the compensation is paid (such annual
fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year).
However, in no event, except as may otherwise be provided in the
Standard Terms and Conditions of Trust, shall the Trustee receive
compensation in any one year from any Trust of less than $2,000
for such annual compensation.
I. The Initial Date of Deposit for the Trust is October 31,
2005.
J. The minimum amount of Securities to be sold by the
Trustee pursuant to Section 5.02 of the Indenture for the
redemption of Units shall be 100 shares.
K. The minimum number of Units a Unit holder must redeem in
order to be eligible for an in-kind distribution of Securities
pursuant to Section 5.02 shall be 2,500 Units of the Trust.
L. The minimum number of Units a Unit holder must tender in
order to be eligible for an in-kind distribution of Securities
pursuant to Section 8.02 shall be 2,500 Units of the Trust.
PART III
A. Notwithstanding anything to the contrary in the Standard
Terms and Conditions of Trust, Section 2.01(e) shall be amended
to read as follows:
"The Trustee is hereby irrevocably authorized to effect
registration or transfer of the Securities in fully
registered form to the name of the Trustee or to the name of
its nominee or to hold the Securities in a clearing agency
registered with the Securities and Exchange Commission, in a
book entry system operated by the Federal Reserve Board,
with an Eligible Foreign Custodian or in an Eligible
Securities Depository."
B. Section 2.01 if the Standard Terms shall be amended to
included the following section at the end of Section 2.01:
"(g) Notwithstanding anything to the contrary herein,
subject to the requirements set forth in this Section
2.01(g) and unless the Prospectus otherwise requires, the
Depositor may, on any Business Day (the "Trade Date"),
subscribe for additional Units as follows:
(i) Prior to the Evaluation Time on such Business Day,
the Depositor shall provide notice (the "Subscription
Notice") to the Trustee, by telephone or by written
communication, of the Depositor's intention to subscribe for
additional Units. The Subscription Notice shall identify the
additional Securities to be acquired (which will be a
precise replication of the then existing portfolio) and
shall either (a) specify the quantity of additional
Securities to be deposited by the Depositor on the
settlement date for such subscription or (b) instruct the
Trustee to purchase additional Securities with an aggregate
value as specified in the Subscription Notice.
(ii) Promptly following the Evaluation Time on such
Business Day, the Depositor shall verify with the Trustee
the number of additional Units to be created.
(iii) Not later than the time on the settlement date for
such subscription when the Trustee is to deliver or assign
the additional Units created hereby, the Depositor shall
deposit with the Trustee (a) any additional Securities
specified in the Subscription Notice (or contracts to
purchase such additional Securities together with cash or a
Letter of Credit in the amount necessary to settle such
contracts) or (b) cash or a Letter of Credit in an amount
equal to the aggregate value of the additional Securities
specified in the Subscription Notice to be purchased by the
Trustee, and adding and subtracting the amounts specified in
the first and second sentences of Section 5.01, computed as
of the Evaluation Time on the Business Day preceding the
Trade Date divided by the number of Units outstanding as of
the Evaluation Time on the Business Day preceding the Trade
Date, times the number of additional Units to be created.
(iv) On the settlement date for such subscription, the
Trustee shall, in exchange for the Securities and cash, cash
or Letter of Credit described above, deliver to, or assign
in the name of or on the order of, the Depositor the number
of Units verified by the Depositor with the Trustee.
(v) In the event the Depositor fails to take such
action required by paragraph (iii) above, the Trustee shall,
on the settlement date for such subscription, settle the
securities transactions specified in the Subscription
Notice.
(vi) Neither the Trust nor Unit holders of the Trust
will be responsible for any loss resulting from the failure
of the Depositor to take such action required by paragraph
(iii) above."
C. Notwithstanding anything to the contrary in the Standard
Terms and Condition of Trust, Section 6.01(e) shall be amended to
read as follows:
"(e) (1) Subject to the provisions of subparagraph (2) of
this paragraph, the Trustee may employ agents, sub-
custodians, attorneys, accountants and auditors and shall
not be answerable for the default or misconduct of any such
agents, sub-custodians, attorneys, accountants or auditors
if such agents, sub-custodians, attorneys, accountants or
auditors shall have been selected with reasonable care. The
Trustee shall be fully protected in respect of any action
under this Indenture taken or suffered in good faith by the
Trustee in accordance with the opinion of counsel, which may
be counsel to the Depositor acceptable to the Trustee,
provided, however that this disclaimer of liability shall
not excuse the Trustee from the responsibilities specified
in subparagraph (2) below. The fees and expenses charged by
such agents, sub-custodians, attorneys, accountants or
auditors shall constitute an expense of the Trust
reimbursable from the Income and Capital Accounts of the
Trust as set forth in section 7.04 hereof.
(2)To the extent permitted under the Investment Company
Act of 1940 as evidenced by an opinion of counsel to the
Depositor satisfactory to the Trustee or "no-action" letters
or exemptive orders issued by the Securities and Exchange
Commission or its staff, the Trustee may place and maintain
in the care of an Eligible Foreign Custodian (which is
employed by the Trustee as a sub-custodian as contemplated
by subparagraph (1) of this paragraph (e) and which may be
an affiliate or subsidiary of the Trustee or any other
entity in which the Trustee may have an ownership interest)
or an Eligible Securities Depository the Trust's investments
(including foreign currencies) for which the primary market
is outside the United States, and such cash and cash
equivalents in amounts reasonably necessary to effect the
Trust's transactions in such investments, provided that:
(A) The Trustee shall indemnify the Trust and hold the
Trust harmless from and against any risk of loss of Trust
assets held with an Eligible Foreign Custodian in
accordance with the foreign custody contract.
(B) The Trustee shall exercise reasonable care,
prudence and diligence such as a person having
responsibility for the safekeeping of Trust assets would
exercise, and shall be liable to the Trust for any loss
occurring as a result of its failure to do so.
(C) The Trustee shall perform all duties assigned to
the Foreign Custody Manager by Rule 17f-5 under the
Investment Company Act of 1940 (17 CFR ss. 270.17f-5), as
now in effect or as such rule may be amended in the future
("Rule 17f-5"). The Trustee shall not delegate such
duties.
(D) The Trustee shall (i) provide the Depositor with
an analysis of the custody risks associated with
maintaining assets with an Eligible Securities Depository;
(ii) monitor the custody risks associated with maintaining
assets with the Eligible Securities Depository on a
continuing basis and promptly notify the Depositor of any
material change in such risks; and (iii) exercise
reasonable care, prudence and diligence in performing the
foregoing duties. The Depositor shall instruct the Trustee
to take such action as the Depositor deems appropriate in
response to a notification by the Trustee provided
pursuant to (ii) in the preceding sentence.
(E) The Trust's Prospectus shall contain such
disclosure regarding foreign securities and foreign
custody as is required for management investment companies
by Forms N-1A and N-2. Such Prospectus shall also contain
disclosure concerning the Depositor's responsibilities
described in (C) above.
(F) The Trustee shall maintain and keep current
written records regarding the basis for the choice or
continued use of a particular Eligible Foreign Custodian
pursuant to this subparagraph for a period of not less
than six years from the end of the fiscal year in which
the Trust was terminated, the first two years in an easily
accessible place. Such records shall be available for
inspection by Unitholders and the Securities and Exchange
Commission at the Trustee's corporate trust office during
its usual business hours."
D. Section 4.05 shall be amended to add the following
paragraph as the third paragraph of Section 4.05 of the Standard
Terms and Condition of Trust:
The Portfolio Supervisor may employ one or more sub-
Portfolio Supervisors to assist in performing the services
set forth in this Section 4.05 and shall not be answerable
for the default of any such sub-Portfolio Supervisors if
such sub-Portfolio Supervisors shall have been selected with
reasonable care, provided, however, that the Portfolio
Supervisor will indemnify and hold the Trust harmless from
and against any loss occurring as a result of a sub-
Portfolio Supervisor's willful misfeasance, reckless
disregard, bad faith, or gross negligence in performing
supervisory duties. The fees and expenses charged by such
sub-Portfolio Supervisors shall be paid by the Portfolio
Supervisor out of proceeds received by the Portfolio
Supervisor in accordance with Section 4.03 hereof.
E. Notwithstanding any provision to the contrary in the
Standard Terms and Conditions of Trust, the Trustee may deem and
treat the Fund/SERV Unit Servicing Agent as the sole Unit holder
of Fund/SERV Units for all purposes of the Indenture and shall
not be affected by any notice to the contrary.
F. Section 1.01 of the Standard Terms and Conditions of
Trust shall be amended to include the following:
"Section 1.01(31). "Fund/SERV Unit Servicing Agent" shall
mean FTP Services LLC or any successor Fund/SERV Unit servicing
agent appointed as hereinafter provided."
G. Section 3.05.I. of the Standard Terms and Conditions of
Trust shall be amended to include the following at the end of
such section:
"(d) deduct from the Income account or, to the extent funds
are not available in such Account, from the Capital Account and
pay to the Fund/SERV Unit Servicing Agent the amount that it is
entitled to receive pursuant to Section 3.16."
H. Article III of the Standard Terms and Conditions of Trust
shall be amended to include the following section:
"Section 3.16. Fund/SERV Unit Servicing Agent. (a) The
Fund/SERV Unit Servicing Agent shall perform all of the duties
with respect to recordkeeping of Fund/SERV Units and Fund/Serv
Unit holders, distributions, redemption of Fund/SERV Units and
communications to and with Fund/SERV Unit holders listed below.
(1) The Fund/SERV Unit Servicing Agent shall keep proper
books of record and account of all of the transactions in the
Fund/SERV Units of each Trust under this Indenture at its
corporate office, including a record of the name and address of,
and the Fund/SERV Units issued by each Trust and held by, every
Fund/SERV Unit holder, and such books and records of each Trust
shall be made available to the Trustee and the Depositor promptly
upon request and open to inspection by any Fund/SERV Unit holder
of such Trust, with respect to such Fund/SERV Unit holders
transactions, at all reasonable times during usual business
hours. Without limiting the foregoing, the Fund/SERV Unit
Servicing Agent shall make any records or documents described in
Reg. 270.31(a)-1 under the Investment Company Act of 1940
available promptly to the Trustee and the Depositor upon request
during usual business hours and will preserve such records and
documents for the periods prescribed in Reg. 270.31(a)-2
thereunder.
(2) The Fund/SERV Unit Servicing Agent shall distribute on
or shortly after the Distribution Dates specified in the Trust
Agreement to each Fund/SERV Unit holder of record on its books on
the Record Date for each such Distribution Date specified in the
Trust Agreement such Fund/SERV Unit holder's distribution as
computed under the Standard Terms and Conditions of Trust.
(3) In connection with such distributions set forth above,
the Fund/SERV Unit Servicing Agent shall furnish a Distribution
Statement to Fund/SERV Unit holders of record on its books. The
content and frequency of such Distribution Statements shall in no
respect be less detailed or frequent than that specified in
Section 3.06 of the Standard Terms and Conditions of Trust.
(4) The Fund/SERV Unit Servicing Agent shall transmit to
each Fund/SERV Unit holder of record any notice or other
communication received from the Trustee and shall be solely
responsible for soliciting and transmitting to the Trustee any
notice required from Fund/SERV Unit holders.
(5) For purposes of permitting Fund/SERV Unit holders to
satisfy any reporting requirements of applicable federal or state
tax law, the Fund/SERV Unit Servicing Agent shall provide the
Trustee with the name, address, number of Fund/SERV Units held
by, and such other information as requested by the Trustee, for
every Fund/SERV Unit holder so that the Trustee can transmit to
any Fund/SERV Unit holder of record on the Fund/SERV Unit
Servicing Agent's books any reports required to be distributed
pursuant to Section 4.02 of the Standard Terms and Conditions of
Trust. The Trustee may rely on the accuracy and completeness of
the information (including any records or documents made
available) provided to it by the Fund/SERV Unit Servicing Agent
and may accept such information without inquiry. Each of the
Depositor and the Fund/SERV Unit Servicing Agent hereby agree,
jointly and severally, to indemnify the Trustee and hold Trustee
harmless from and against any and all costs, expenses, penalties,
damages, liabilities or claims including attorneys' and
accountants' fees sustained or incurred by or asserted against
the Trustee by reason of or as a result of any of the information
provided to the Trustee by the Fund/SERV Unit Servicing Agent
being inaccurate or incomplete. This indemnity shall be a
continuing obligation of each of the Depositor and the Fund/SERV
Unit Servicing Agent, and their successors and assigns,
notwithstanding the termination of this Trust Agreement.
(6) The Fund/SERV Unit Servicing Agent shall distribute to
redeeming Fund/SERV Unit holders of record on its books
redemption proceeds it receives pursuant to Section 5.02 of the
Standard Terms and Conditions of Trust from the Trustee as the
sole record owner of Fund/SERV Units on the Trustee's books.
(7) The Fund/SERV Unit Servicing Agent shall distribute to
Fund/SERV Unit holders of record on its books a pro rata portion
of termination proceeds it receives pursuant to Section 8.02 of
the Standard Terms and Conditions of Trust from the Trustee as
the sole record owner of Fund/SERV Units on the Trustee's books.
(8) In connection with such termination distributions set
forth above, the Fund/SERV Unit Servicing Agent shall furnish a
Final Distribution Statement to Fund/SERV Unit holders of record
on its books. The content of such Final Distribution Statements
shall in no respect be less detailed than that specified in
Section 8.02 of the Standard Terms and Conditions of Trust.
(9) As requested by the Depositor and/or the Trustee, the
Fund/SERV Unit Servicing Agent shall perform such other functions
which, from time to time, are agreed upon by the parties hereto
and which may give rise to additional fees.
(b) As compensation for providing the services set forth
herein, of a character described in Section 26(a)(2)(C) of the
Investment Company Act of 1940, and to the extent that such
services are in addition to, and do not duplicate, the services
to be performed by the Trustee, FTP Services LLC shall receive,
in arrears, against a statement or statements therefore submitted
to the Trustee monthly or annually an aggregate annual fee in the
per Unit amount set forth in Part II of the Trust Agreement for
the Trust, calculated based on the largest number of Units
outstanding during the calendar year, except during the initial
offering period as determined in Section 4.01 of the Standard
Terms and Conditions of Trust, in which case the fee is
calculated based on the largest number of Units outstanding
during the period for which the compensation is paid (such annual
fee to be pro rated for any calendar year in which FTP Services
LLC provides services described herein during less than the whole
of such year). Such fee may exceed the actual cost of providing
such services for the Trust, but at no time will the total amount
received by FTP Services LLC for rendering the services described
in this Section 3.16 and First Trust Advisors, L.P. for rendering
the services described in Section 4.03 to unit investment trusts
of which the Depositor is the sponsor in any calendar year exceed
the aggregate cost to FTP Services LLC and First Trust Advisors,
L.P. of supplying such services in such year. Such compensation
may, from time to time, be adjusted by the Depositor provided
that the total adjustment upward does not, at the time of such
adjustment, exceed the percentage of the total increase, after
the date hereof, in consumer prices for services as measured by
the United States Department of Labor Consumer Price Index
entitled "All Services Less Rent of Shelter" or similar index, if
such index should no longer be published. The consent or
concurrence of any Unit holder hereunder shall not be required
for any such adjustment or increase. Such compensation shall be
paid by the Trustee, upon receipt of an invoice therefore from
FTP Services LLC, which shall constitute the representation by
FTP Services LLC that the bookkeeping and administrative services
for which compensation is claimed are properly compensable
hereunder and that the aggregate cost incurred by FTP Services
LLC of providing Fund/SERV Unit shareholder servicing hereunder
was not less than the compensation claimed, upon which
representation the Trustee may conclusively rely. Such
compensation shall be charged against the Income and/or Capital
Accounts, in accordance with Section 3.05 of the Standard Terms
and Conditions of Trust.
If the cash balance in the Income and Capital Accounts shall
be insufficient to provide for amounts payable pursuant to this
Section 3.16, the Trustee shall have the power to sell (i)
Securities from the current list of Securities designated to be
sold pursuant to Section 5.02 hereof, or (ii) if no such
Securities have been so designated, such Securities as the
Trustee may see fit to sell in its own discretion, and to apply
the proceeds of any such sale in payment of the amounts payable
pursuant to this Section 3.16.
All moneys payable to the Fund/SERV Unit Servicing Agent
pursuant to this Section 3.16 shall be secured by a lien on the
Trust prior to the interest of Unit holders, but no such lien
shall be prior to any lien in favor of the Trustee under the
provisions of Section 6.04 of the Standard Terms and Conditions
of Trust.
(c) The Fund/SERV Unit Servicing Agent shall be under no
liability for any action taken in good faith on any appraisal,
paper, order, list, demand, request, consent, affidavit, notice,
opinion, direction, evaluation, endorsement, assignment,
resolution, draft or other document, whether or not of the same
kind, prima facie properly executed, or for the disposition of
moneys, pursuant to this Indenture, except by reason of its own
negligence, lack of good faith or willful misconduct, provided
that the Fund/SERV Unit Servicing Agent shall not in any event be
liable or responsible for any evaluation made by the Evaluator.
(d) Except as the context otherwise requires, the Fund/SERV
Unit Servicing Agent shall be subject to the provisions of
Section 4.05 herein in the same manner as it would if it were the
Evaluator.
(e) The Fund/SERV Unit Servicing Agent shall be indemnified
ratably by the affected Trust and held harmless against any loss
or liability accruing to it without negligence, bad faith or
willful misconduct on its part, arising out of or in connection
with the operations of the Trust, including the costs and
expenses (including counsel fees) of defending itself against any
claim of liability in the premises, including without limitation
any loss, liability or expense incurred in acting pursuant to
written directions to the Fund/SERV Unit Servicing Agent given by
the Trustee or Depositor from time to time in accordance with the
provisions of this Indenture or in undertaking actions from time
to time which the Fund/SERV Unit Servicing Agent deems necessary
in its discretion to protect the Trust and the rights and
interests of the Fund/SERV Unit holders pursuant to the terms of
this Indenture.
(f) The Fund/SERV Unit Servicing Agent shall conduct its
operations in a manner that is compatible with the current
operational procedures and requirements of the Trustee
(including, without limiting the foregoing, the provision and
receipt of data in such format and meeting such technical
requirements as the Trustee may specify) and shall exercise its
best efforts to accommodate any changes in the operational
procedures and requirements which the Trustee may make upon prior
notice to the Fund/SERV Unit Servicing Agent. The Depositor
acknowledges and agrees that the default of the Fund/SERV Unit
Servicing Agent in its obligations under this paragraph, or the
performance by the Fund/SERV Unit Servicing Agent of its
obligations in a manner which shall adversely affect the
Trustee's performance of its duties, shall be a sufficient
grounds for the Trustee to remove the Fund/SERV Unit Servicing
Agent pursuant to Section 3.16(d) and Section 4.05.
(g) As used in this Section 3.16, "Fund/SERV Unit holder,"
when referring to the records of the Trustee, shall mean the
Fund/SERV Unit Servicing Agent and, when referring to the records
to be maintained by the Fund/SERV Unit Servicing Agent, shall
mean each owner of a Fund/SERV Unit identified on the records of
the Fund/SERV Unit Servicing Agent."
I. Section 4.01(a) and (b) of the Standard Terms and
Conditions of Trust shall be amended to include the Fund/SERV
Unit Servicing Agent among the parties who are furnished
information concerning the Evaluation of each issue of Securities
deposited in the Trust and the Trust Fund Evaluation.
J. The second sentence of the first paragraph of Section
4.03 shall be replaced with the following:
"Such fee may exceed the actual cost of providing such
services for the Trust, but at no time will the total amount
received by First Trust Advisors, L.P. for rendering the services
described in this Section 4.03 and FTP Services LLC for rendering
the services described in Section 3.16 to unit investment trusts
of which the Depositor is the sponsor in any calendar year exceed
the aggregate cost to FTP Services LLC and First Trust Advisors,
L.P. of supplying such services in such year.
K. Section 4.04 of the Standard Terms and Conditions of
Trust shall be amended to include the Fund/SERV Unit Servicing
Agent replaced in its entirety by the following:
"Section 4.04. Liability of Evaluator. The Trustee,
Fund/SERV Unit Servicing Agent, Depositor and the Unit holders
may rely on any Evaluation furnished by First Trust Advisors,
L.P., acting in its capacity as Evaluator, and shall have no
responsibility for the accuracy thereof. The determinations made
by the Evaluator hereunder shall be made in good faith upon the
basis of the best information available to it. The Evaluator
shall be under no liability to the Trustee, Fund/SERV Unit
Servicing Agent, Depositor or the Unit holders for errors in
judgement; provided, however, that this provision shall not
protect the Evaluator against any liability to which it would
otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of its duties or by reason
of its reckless disregard of its obligations and duties
hereunder."
L. The second sentence of the first paragraph of Section
5.01 shall be amended to delete subsection (ii) of such sentence
and replace it in its entirety with the following:
"(ii) amounts representing estimated accrued expenses of such
Trust including but not limited to unpaid fees and expenses of
the Trustee, the Evaluator, the Portfolio Supervisor, the
Fund/SERV Unit Servicing Agent, the Depositor and its counsel, in
each case as reported by the Trustee to the Depositor on or prior
to the date of Evaluation,"
M. Section 6.01(c) of the Standard Terms and Conditions of
Trust shall be replaced in its entirety with the following:
"(c) The Trustee shall not be responsible for or in respect
of the recitals herein, the validity or sufficiency of this
Indenture or for the due execution hereof by the Depositor, the
Portfolio Supervisor, the Evaluator, or the Fund/SERV Unit
Servicing Agent, or for the form, character, genuineness,
sufficiency, value or validity of any of the Securities (except
that the Trustee shall be responsible for the exercise of due
care in determining the genuineness of Securities delivered to it
pursuant to contracts for the purchase of such Securities) or for
or in respect of the validity or sufficiency of the Units or of
the Certificates (except for the due execution thereof by the
Trustee) or for the due execution thereof by the Depositor, and
the Trustee shall in no event assume or incur any liability, duty
or obligation to any Unit holder, the Fund/SERV Unit Servicing
Agent or the Depositor other than as expressly provided for
herein. The Trustee shall not be responsible for or in respect of
the validity of any signature by or on behalf of the Depositor,
the Portfolio Supervisor, the Evaluator or the Fund/SERV Unit
Servicing Agent;"
N. Section 8.02(b) of the Standard Terms and Conditions of
Trust shall be replaced in its entirety with the following:
"(b) deduct from the Income Account of such Trust or, to the
extent that funds are not available in such Account, from the
Capital Account of such Trust, and pay accrued and unpaid fees of
the Evaluator, the Portfolio Supervisor, the Fund/SERV Unit
Servicing Agent, the Depositor and counsel in connection with
such Trust, if any;"
O. Section 8.05 of the Standard Terms and Conditions of
Trust shall be amended to add the following paragraph immediately
preceding the last paragraph of such section:
"Any notice, demand, direction or instruction to be
given to the Fund/SERV Unit Servicing Agent shall be in
writing and shall be duly given if mailed or delivered to
the Fund/SERV Unit Servicing Agent at 0000 Xxxxxxxxxxx Xxxx,
Xxxxx, Xxxxxxxx 00000, or at such other address as shall be
specified by the Fund/SERV Unit Servicing Agent to the other
parties hereto in writing.
P. Notwithstanding anything to the contrary in the Standard
Terms and Conditions of Trust, the second paragraph in Section
8.02 shall be amended to read as follows:
In the event of any termination of the Trust prior to the
Mandatory Termination Date, the Trustee shall proceed to
liquidate the Securities then held and make the payments and
distributions provided for hereinafter in this Section 8.02,
except that in such event, the distribution to each Unit
holder shall be made in cash and shall be such Unit holder's
pro rata interest in the balance of the principal and income
accounts after the deductions herein provided. In the event
that the Trust shall terminate on or after the Mandatory
Termination Date, the Trustee shall, at least thirty days
prior to the Mandatory Termination Date, send a written
notice to all Unit holders of record. If such Unit holder
owns at least the minimum number of Units of Trust set forth
in Part II of the Trust Agreement, such notice shall further
indicate that such Unit holder may elect to receive an in-
kind distribution of their pro rata share of the Securities,
to the extent of whole shares. The Trustee will honor duly
executed requests for in-kind distributions received
(accompanied by the electing Unit holder's Certificate, if
issued) by the close of business fifteen business days prior
to the Mandatory Termination Date. Unit holders who do not
effectively request an in-kind distribution shall receive
their distribution upon termination in cash.
IN WITNESS WHEREOF, First Trust Portfolios, L.P., The Bank
of New York and First Trust Advisors L.P. have each caused this
Trust Agreement to be executed and the respective corporate seal
to be hereto affixed and attested (if applicable) by authorized
officers; all as of the day, month and year first above written.
FIRST TRUST PORTFOLIOS,
L.P., Depositor
By Xxxxx X. Xxxxx
Senior Vice President
THE BANK OF NEW YORK,
Trustee
By Xxxx Xxxxxx
Vice President
[SEAL]
ATTEST:
Xxxxxxx Xxxx
Assistant Vice President
FIRST TRUST ADVISORS L.P.,
Evaluator
By Xxxxx X. Xxxxx
Senior Vice President
FIRST TRUST ADVISORS L.P.,
Portfolio Supervisor
By Xxxxx X. Xxxxx
Senior Vice President
FTP SERVICES LLC,
Fund/SERV Unit Servicing
Agent
By
SCHEDULE A TO TRUST AGREEMENT
Securities Initially Deposited
FT 1028
(Note: Incorporated herein and made a part hereof for the
Trust is the "Schedule of Investments" for the Trust as set forth
in the Prospectus.)
