Exhibit 1.1
XXX XXXXXX UNIT TRUSTS, SERIES 428
TRUST AGREEMENT
Dated: February 17, 2004
This Trust Agreement among Xxx Xxxxxx Funds Inc., as Depositor, The Bank of
New York, as Trustee, Xxxxx & Steers Capital Management, Inc. or Xxx Xxxxxx
Investment Advisory Corp., as Supervisor for certain Trusts, sets forth certain
provisions in full and incorporates other provisions by reference to the
document entitled "Standard Terms and Conditions of Trust For Xxx Xxxxxx Focus
Portfolios, Effective for Unit Investment Trusts Established On and After May 2,
2001 (Including Series 284 and Subsequent Series)" (the "Standard Terms and
Conditions of Trust") and such provisions as are set forth in full and such
provisions as are incorporated by reference constitute a single instrument. All
references herein to Articles and Sections are to Articles and Sections of the
Standard Terms and Conditions of Trust.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor, Trustee and Supervisor agree as follows:
PART I
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II hereof, all the provisions contained
in the Standard Terms and Conditions of Trust are herein incorporated by
reference in their entirety and shall be deemed to be a part of this instrument
as fully and to the same extent as though said provisions had been set forth in
full in this instrument.
PART II
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
1. The Securities listed in the Schedules hereto have been deposited in
trust under this Trust Agreement.
2. The fractional undivided interest in and ownership of 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 "Initial number of Units" for
the Trust in the "Summary of Essential Financial Information" in the
Prospectus.
3. The aggregate number of Units described in Section 2.03(a) for each
Trust is that number of Units set forth under "Initial number of
Units" for the Trust in the "Summary of Essential Financial
Information" in the Prospectus.
4. The terms "Capital Account Distribution Date" and "Income Account
Distribution Date" shall mean the "Distribution Dates" set forth in
the "Summary of Essential Financial Information" in the Prospectus.
5. The terms "Capital Account Record Date" and "Income Account Record
Date" shall mean the "Record Dates" set forth in the "Summary of
Essential Financial Information" in the Prospectus.
6. The term "Deferred Sales Charge Payment Date" shall mean July 10, 2004
and the tenth day of each month thereafter through November 10, 2004
with respect to the amount designated "Deferred sales charge in first
year" in the "Fee Table" in the Prospectus and July 10, 2005 and the
tenth day of each month thereafter through September 10, 2005 with
respect to the amount designated "Deferred sales charge in second
year" in the "Fee Table" in the Prospectus.
7. The term "Mandatory Termination Date" shall mean the "Mandatory
Termination Date" for each Trust set forth in the "Summary of
Essential Financial Information" in the Prospectus.
8. 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.
9. Section 6.02 of the Standard Terms and Conditions of Trust shall be
amended by adding the following to the end of such Section:
"Notwithstanding anything to the contrary herein, each Unitholder who holds
Units designated with a "Classic CUSIP" number will be deemed to have tendered
all Units then owned for redemption to the Trustee on the Special Redemption
Date set forth under "Summary of Essential Financial Information" in the
Prospectus and shall have such Units redeemed on such date as provided herein."
10. 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."
11. With respect to Xxxxx & Steers REIT Income Portfolio, Series 10 only,
Section 3.05(b)(ii) shall be replaced in is entirety by the following:
"(ii) For purposes of this Section 3.05, the Unitholder's "Income
Distribution" shall be equal to such Unitholders pro rata share of the balance
in the Income Account calculated on the basis of one-twelfth of the estimated
annual income to the Trust for the ensuing twelve months computed as of the
close of business on the Income Account Record Date immediately preceding such
Income Distribution, after deduction of (1) the fees and expenses then
deductible pursuant to Section 3.05(a) and (2) the Trustee's estimate of other
expenses properly chargeable to the Income Account pursuant to this Indenture
which have accrued, as of such Income Account Record Date or are otherwise
properly attributable to the period to which such Income Distribution relates,
provided, however, in connection with the first Income Account Distribution Date
such distribution will be calculated based on the actual cash balance in the
Income Account rather than on the basis of one-twelfth of the estimated annual
income to the Trust for the ensuing twelve months.
In the event that the amount on deposit in the Income Account is not
sufficient for the payment of the amount intended to be distributed to
Unithoders on the basis of the aforesaid computation, the Trustee is authorized
to advance its own funds and cause to be deposited in and credited to the Income
Account such amounts as may be required to permit payment of the related
distribution to be made as aforesaid and shall be entitled to be reimbursed,
without interest, out of income payments received by the Trust subsequent to the
date of such advance. Any such advance shall be reflected in the Income Account
until repaid."
12. With respect to Xxxxx & Steers REIT Income Portfolio, Series 10 only,
the term "Supervisor" shall mean Xxxxx & Steers Capital Management,
Inc. and its successors in interest, or any successor portfolio
supervisor appointed as provided in the Standard Terms and Conditions
of Trust.
13. With respect to Xxxxx & Steers REIT Income Portfolio, Series 10 only,
the first paragraph of Section 4.01 is hereby replaced with the
following:
"Section 4.01. Compensation As compensation for providing supervisory
portfolio services under this Indenture, Xxxxx & Steers REIT Income Portfolio,
Series 10 will accrue daily and pay to the Supervisor at the end of each
calendar quarter an aggregate annual fee in an amount equal to 0.05% of the
average daily Trust Evaluation (described in Section 6.01).
14. With respect to Financial Institutions Portfolio, Series 21 only, the
term "Percentage Ratio" shall mean (a) for the first ninety (90) days
of such Trust's term, the percentage relationship among the Equity
Securities based on the dollar value of each Equity Security per Unit
existing immediately prior to an additional deposit of Securities and
(b) for the remaining term of such Trust, the percentage relationship
among the Equity Securities based on the number of shares of each
Equity Security per Unit existing immediately prior to an additional
deposit of Securities. The Percentage Ratio shall be adjusted to the
extent necessary, and may be rounded, to reflect the occurrence of a
stock dividend, a stock split or a similar event which affects the
capital structure of the issuer of an Equity Security.
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/ XXXXXXXX XXXXXXXXXX
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Executive Director
XXX XXXXXX INVESTMENT ADVISORY CORP.
By /s/ XXXXXXXX XXXXXXXXXX
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Assistant Treasurer
XXXXX & STEERS CAPITAL MANAGEMENT, INC.
By /s/ XXXX X. XXXXXX
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Senior Vice President
THE BANK OF NEW YORK
By /s/ XXXXXXX X'XXXXX
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Vice President
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
XXX XXXXXX UNIT TRUSTS, SERIES 428
[Incorporated herein by this reference and made a part hereof is each
"Portfolio" schedule as set forth in the Prospectus.]
