Exhibit 1.1
XXX XXXXXX UNIT TRUSTS, SERIES 639
TRUST AGREEMENT
Dated: January 16, 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 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 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 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."
11. 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."
12. Section 3.11 of the Standard Terms and Conditions of Trust shall be
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 unless the Depositor
instructs otherwise within five Business Days of the giving of such notice to
the Depositor."
13. 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;"
14. 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.
15. Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, the Supervisor shall not be entitled to receive the
compensation set forth in Section 4.01 with respect to the Trust.
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. 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."
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 (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
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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
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 639
[Incorporated herein by this reference and made a part hereof is the
"Portfolio" schedule as set forth in the Prospectus.]
