Exhibit 1.1
XXX XXXXXX UNIT TRUSTS, SERIES 1058
TRUST AGREEMENT
Dated: November 18, 2010
This Trust Agreement among Xxx Xxxxxx Funds Inc., as Depositor, The Bank of
New York Mellon, as Trustee, and Xxxxx & Steers Capital Management, Inc., 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 February 10, 2011
and the 10th day of each month thereafter through June 10, 2011.
8. The term "Equity Securities" shall mean any traditional preferred
securities and hybrid-preferred securities deposited in the Trust.
9. The term "First Settlement Date" shall mean the date set forth in footnote
1 under "Essential Information" in the Prospectus.
10. The term "Mandatory Termination Date" shall mean the "Mandatory
Termination Date" for the Trust set forth in the "Essential Information" in the
Prospectus.
11. The term "OTC Securities" shall mean any Equity Securities in the Trust
that are not listed on a national or foreign securities exchange or traded on
the Nasdaq Stock Markets, Inc. and trade only in the over-the-counter market.
12. Section 1.01(38)(a) is replaced in its entirety by the following:
"(a) with respect to an Equity Trust other than an Index Trust, the
percentage relationship among the Securities based on the number of shares of
each Equity Security per Unit or principal amount of each OTC Security per Unit
existing immediately prior to such additional deposit,"
13. The term "Supervisor" shall mean Xxxxx & Steers Capital Management, Inc.
and its successors in interest, or any successor portfolio supervisor as
provided in the Standard Terms and Conditions of Trust.
14. "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.
15. Notwithstanding any references to the term "Certificate" in the Standard
Terms and Conditions of Trust, all ownership of Units will be evidenced solely
in book-entry form, and will not be evidenced by certificates. Accordingly, the
definition and all references to the term "Certificate" in the Standard Terms
and Conditions of Trust, including but not limited to the form of "Certificate
of Ownership", Section 2.05 and Section 6.04 are hereby deleted in their
entirety to reflect Unit ownership solely in book-entry form.
16. The second sentence of section 2.01(b) is hereby deleted.
17. Section 2.03(b) of the Standard Terms and Conditions of Trust shall be
replaced in its entirety by the following:
"Units shall be held solely in uncertificated form evidenced by appropriate
notation in the registration books of the Trustee, and no Unitholder shall be
entitled to the issuance of a Certificate evidencing the Units owned by such
Unitholder. The only permitted registered holders of Units shall be through the
Depository Trust Company (or its nominee, Cede & Co.); consequently, individuals
must hold their Units through an entity which is a participant in Depository
Trust Company."
18. The first paragraph of Section 3.02 of the Standard Terms and Conditions
of Trust is hereby replaced with the following:
"Section 3.02. Income Account. The Trustee shall collect the dividends or
other like cash distributions on the Securities in the Trust as such becomes
payable (including all interest accrued but unpaid prior to the date of deposit
of the Securities in the Trust and including that part of the proceeds of the
sale, liquidation, redemption or maturity of any Securities, all moneys
representing penalties for the failure to make timely payments on the
Securities, or as liquidated damages for default or breach of any condition or
term of the Securities or of the underlying instrument relating to any
Securities and other income attributable to a Failed Contract Security for which
no Replacement Security has been obtained pursuant to Section 3.12 hereof) and
credit such income to a separate account for each Trust to be known as the
"Income Account"."
19. Section 3.05 of the Standard Terms and Conditions of Trust is amended by
including the following immediately preceding Section 3.05(a):
"The Trustee, as of the First Settlement Date, shall advance from its own
funds and shall pay to the Unitholders of the Trust then of record the amount of
interest accrued on the Securities deposited in such Trust. The Trustee shall be
entitled to reimbursement for such advancement from interest received by the
Trust before any further distributions shall be made from the Income Account to
Unitholders of the Trust. The Trustee shall also advance from its own funds and
pay the appropriate persons the Trustee Advance, which amount represents
interest which accrues on any Securities deposited in the Trust from the First
Settlement Date to the respective dates of delivery to the Trust of any of such
Securities. Subsequent distributions of funds from the Income Account of the
Trust shall be made on the Income Account Distribution Dates of the Trust as
described herein."
20. Section 3.05 of the Standard Terms and Conditions of Trust is amended by
adding the following subsection immediately after Section 3.05(a)(iv):
"(v) Notwithstanding any of the previous provisions, if the 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."
21. Section 3.05(b)(ii) of the Standard Terms and Conditions of Trust 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 (or portion or multiple thereof for the first 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.
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
Unitholders 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."
22. Section 3.05(b)(iv) of the Standard Terms and Conditions of Trust shall
be replaced in is entirety by the following:
"(iv) Principal, accrued interest and income attributable to Contract
Securities which the Depositor shall have declared by written notice to the
Trustee to be Failed Contract Securities for which Replacement Securities are
not to be substituted pursuant to Section 3.12 hereof shall be distributed to
Unitholders of record as of the close of business on the Income Account Record
Date next following the failure of consummation of such purchase and shall be
distributed not more than 120 days after the receipt of such notice by the
Trustee or at such earlier time in such manner as the Trustee in its sole
discretion deems to be in the best interest of Unitholders."
23. The first paragraph of Section 3.06 of the Standard Terms and Conditions
of Trust is hereby replaced with the following:
"Section 3.06. Distribution Statements. With each distribution from the
Income or Capital Accounts of the Trust, the Trustee shall set forth, either in
the instrument by means of which payment of such distribution is made or in an
accompanying statement, the amount being distributed from each such account and,
if from the Income Account, the amount of accrued interest (uncollected and not
available for distribution) on the record date for such distribution, each
expressed as a dollar amount per Unit of the Trust."
24. Sections 3.07(a)(i), (ii) and (iii) of the Standard Terms and Conditions
of Trust are replaced in their entirety by the following:
"(i) that there has been a default on any of the Securities in the payment of
any principal, or in the payment of interest or dividend payments, after
declared (as applicable) and when due and payable;
(ii) that any action or proceeding has been instituted at law or equity
seeking to restrain or enjoin the payment of principal, interest or dividends on
any Securities, or that there exists any legal question or impediment affecting
such Securities or the payment of interest or dividends from the same;
(iii) that there has occurred any breach of covenant or warranty in any
document relating to the issuer of Securities which would adversely affect
either immediately or contingently the payment of debt service, interest or
dividends from the Securities, or the general credit standing of the issuer or
otherwise impair the sound investment character of such Securities;"
25. 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; or
(xiv) that as result of the ownership of the Security, the Trust or its
Unitholders would be a direct or indirect shareholder of a passive foreign
investment company as defined in section 1297 (a) of the United States Internal
Revenue Code of 1986, as amended."
26. If the Trust has elected to be treated as a "regulated investment
company" as defined in the United States Internal Revenue Code of 1986, as
amended, the first two sentences in the second paragraph of Section 3.11 of the
Standard Terms and Conditions of Trust shall be replaced in their entirety with
the following:
"In the event that an offer by the issuer of any of the Securities or any
other party shall be made to issue new securities, or to exchange securities,
for Trust Securities, the Trustee shall at the direction of the Depositor, vote
for or against, or accept or reject, any offer for new or exchanged securities
or property in exchange for a Trust Security. Should any issuance, exchange or
substitution be effected, any securities, cash and/or property received shall be
deposited hereunder and shall be promptly sold, if securities or property, by
the Trustee pursuant to the Depositor's direction, unless the Depositor advises
the Trustee to keep such securities or property."
27. 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 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;"
28. Section 3.12(c) of the Standard Terms and Conditions of Trust shall be
replaced in its entirety with the following:
"(c) The purchase price of the Replacement Securities (exclusive of accrued
interest) shall not exceed the total amount of cash deposited, or the amount
available under the Letter of Credit deposited, by the Depositor at the time of
the deposit of the Failed Contract Security;"
29. The fifth sentence of the final paragraph of Section 3.12 of the Standard
Terms and Conditions of Trust shall be replaced in its entirety with the
following:
"Any excess of the purchase price of a Failed Contract Security over the
purchase price of its corresponding Replacement Security shall be refunded to
the Depositor, together with any accrued interest applicable to such difference
and distribute such moneys to Unitholders pursuant to Section 3.05."
30. 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
the Trust states that the 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 the Trust portfolio as
shall be necessary to maintain qualification of the Trust as a regulated
investment company and to avoid imposition of tax on the Trust or undistributed
income in the Trust, and the Depositor and Supervisor shall be authorized to
rely conclusively upon such reviews."
31. The first paragraph of Section 4.01 of the Standard Terms and Conditions
of Trust is hereby replaced with the following:
"Section 4.01. Compensation. As compensation for providing supervisory
portfolio services under this Indenture, the Trust will accrue daily and pay to
the Supervisor at the end of each calendar quarter an aggregate annual fee in an
amount equal to 0.075% of the average daily Trust Evaluation (described in
Section 6.01)."
32. Sections 5.01(b) and (c) of the Standard Terms and Conditions of Trust
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: (a)(i) With respect to the non-OTC 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 non-OTC
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.
(b) With respect to the OTC Securities, such Evaluation shall be made: (i) on
the basis of current offer prices for the OTC Securities, (ii) if offer prices
are not available for the OTC Securities, on the basis of current offer prices
for comparable securities, (iii) by causing the value of the OTC Securities to
be determined by others engaged in the practice of evaluation, quoting or
appraising comparable securities, or (iv) by any combination of the above. The
Trustee may utilize a securities pricing service to evaluate the prices of the
OTC Securities. 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 determine and furnish to the Depositor the aggregate of (a)
the value of all Securities in the Trust on the basis of such evaluation and (b)
the amount of cash then held in the Capital Account relating to the Trust which
was received by the Trustee after the Capital Account Record Date preceding such
determination less any amounts held in the Capital Account relating to such
Trust for distribution to Unitholders on a subsequent Capital Account
Distribution Date when a Capital Account Record Date occurs four Business Days
or less after such determination. For the purposes of the foregoing, the Trustee
may obtain current prices for the Securities in the Trust from investment
dealers or brokers (including the Depositor) that customarily deal in such
securities. 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 any OTC
Securities and the bid side value of any relevant currency exchange rate
expressed in U.S. dollars."
33. The first paragraph of Section 6.01 of the Standard Terms and Conditions
of Trust is hereby replaced with the following:
"Section 6.01. Trust Evaluation. As of the Evaluation Time (a) on the last
Business Day of each year, (b) on the day on which any Unit is tendered for
redemption and (c) on any other day desired by the Trustee or requested by the
Depositor, the Trustee shall: Add (i) all moneys on deposit in a Trust
(excluding (1) cash, cash equivalents or Letters of Credit deposited pursuant to
Section 2.01 hereof for the purchase of Contract Securities, unless such cash or
Letters of Credit have been deposited in the Income and Capital Accounts because
of failure to apply such moneys to the purchase of Contract Securities pursuant
to the provisions of Sections 2.01, 3.02 and 3.03 hereof and (2) moneys credited
to the Reserve Account pursuant to Section 3.04 hereof), plus (ii) the aggregate
Evaluation of all Securities (including Contract Securities) on deposit in the
Trust (such evaluations to be made on the basis of bid prices for the OTC
Securities and the aggregate underlying value of the Equity Securities as
determined in Section 5.01(b) for the purpose of computing redemption value of
Units as set forth in Section 6.02 hereof, and additionally, such evaluations
shall take into account and itemize separately (1) the cash on hand in the Trust
(other than cash declared held in trust to cover contracts to purchase
Securities) or moneys in the process of being collected from any Securities
matured or called for redemption prior to maturity, (2) the value of each issue
of the Securities in the Trust as last determined by the Trustee pursuant to
Section 5.01, and (3) interest accrued thereon not subject to collection and
distribution), plus (iii) all other income from the Securities (including
dividends receivable on any Securities trading ex-dividend as of the date of
such valuation) as of the Evaluation Time on the date of such Evaluation
together with all other assets of such Trust. For each such computation there
shall be deducted from the sum of the above (i) amounts representing any
applicable taxes or charges payable out of the Trust and for which no deductions
shall have previously been made for the purpose of addition to the Reserve
Account, (ii) amounts representing estimated accrued expenses of such Trust
including but not limited to unpaid fees and expenses of the Trustee, the
Supervisor, the Depositor and counsel, in each case as reported by the Trustee
to the Depositor on or prior to the date of computation, and (iii) any moneys
identified by the Trustee, as of the date of such computation, as held for
distribution to Unitholders of record as of an Income or Capital Account Record
Date or for payment of the Redemption Price of Units tendered prior to such
date. The resulting figure is herein called a "Trust Evaluation." The value of
the pro rata share of each Unit of the respective Trust determined on the basis
of any such evaluation shall be referred to herein as the "Unit Value." Amounts
receivable by the Trust in foreign currency shall be converted by the Trustee to
U.S. dollars based on current exchange rates, in the same manner as provided in
Section 5.01(b) or 5.01(c), as applicable, for the conversion of the valuation
of foreign Securities, and the Trustee shall report such conversion with each
Evaluation made pursuant to Section 5.01."
34. The first paragraph of Section 6.02 of the Standard Terms and Conditions
of Trust is replaced in its entirety by the following:
"Section 6.02. Redemptions by Trustee; Purchases by Depositor. Any Unit
tendered by means of an appropriate request for redemption in form approved by
the Trustee shall be paid by the Trustee no later than the seventh calendar day
following the day on which tender for redemption is made in proper form,
provided that if such day of payment is not a Business Day, then such payment
shall be on the first Business Day prior thereto (being herein called the
"Settlement Date"). The Business Day on which tender for redemption is made in
proper form shall be referred to herein as the "Redemption Date." Subject to (a)
the next succeeding paragraph and (b) payment by such Unitholder of any tax or
other governmental charges which may be imposed thereon, redemption is to be
made by payment of cash equivalent to the Unit Value determined on the basis of
a Trust Evaluation made in accordance with Section 6.01 determined by the
Trustee as of the Evaluation Time on the date of tender; provided that accrued
interest is paid to the Redemption Date, multiplied by the number of Units
tendered for redemption (herein called the "Redemption Price"), or if the
Unitholder wishes to redeem a number of Units less than all those so tendered,
multiplied by the number of Units so designated by such Unitholder for
redemption. Units received for redemption by the Trustee on any day after the
Evaluation Time will be held by the Trustee until the next Trust Business Day
and will be deemed to have been tendered on such day for redemption at the
Redemption Price computed on that day."
35. The second sentence of the second paragraph of Section 6.02 of the
Standard Terms and Conditions of Trust is replaced in its entirety by the
following:
"The balance paid on any Redemption Price, including any accrued interest or
income not paid from the Income Account, if any, shall be withdrawn from the
Capital Account to the extent that funds are available for such purpose."
36. The final sentence of the second paragraph of Section 6.02 of the
Standard Terms and Conditions of Trust is replaced in its entirety by the
following:
"In the event that either (i) funds are withdrawn from the Capital Account
and are applied to the payment of accrued interest or income upon any redemption
of Units or (ii) Securities are sold for the payment of the Redemption Price and
any portion of the proceeds of such sale is applied to the payment of income
upon such redemption, then, in either such event, the Capital Account shall be
reimbursed therefor at such time as sufficient funds may be next available in
the Income Account for such purpose."
37. Section 6.03 of the Standard Terms and Conditions of Trust shall be
replaced in its entirety by the following:
"Section 6.03. Transfer or Interchange of Units. Units may be transferred by
the registered holder thereof by presentation and surrender of such Units at the
corporate trust office of the Trustee, properly endorsed or accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Trustee and executed by the Unitholder or his authorized attorney, whereupon new
Units will be issued in exchange and substitution therefore and Units
surrendered shall be cancelled by the Trustee. The registered holder of any Unit
may transfer such Unit by the presentation of transfer instructions to the
Trustee at the corporate trust office of the Trustee accompanied by such
documents as the Trustee deems necessary to evidence the authority of the person
making such transfer and executed by the registered holder or his authorized
attorney, whereupon the Trustee shall make proper notification of such transfer
on the registration books of the Trustee. A sum sufficient to pay any tax or
other governmental charge that may be imposed in connection with any such
transfer or interchange shall be paid by the Unitholder to the Trustee."
38. The second sentence of Section 7.01(e)(2)(E) of the Standard Terms and
Conditions of Trust shall be replaced in its entirety by "Such Prospectus shall
also contain disclosure concerning the Depositor's responsibilities described in
(D) above."
39. The Trustee's annual compensation rate described in Section 7.04 of the
Standard Terms and Conditions of Trust shall be that amount set forth under
"Trustee's fee and operating expenses" in the "Fee Table" in the Prospectus.
40. 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 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) 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."
41. 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 such 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.
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 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 as follows:
(e) to each Unitholder, such Unitholder's pro rata share of the cash balances
of the Income and Capital Accounts; and
(f) 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
(g) 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 the 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
-----------------------------------------------------
Vice President
XXXXX & STEERS CAPITAL MANAGEMENT, INC.
By: /s/ XXXXX XXXX
-----------------------------------------------------
Executive Vice President
THE BANK OF NEW YORK MELLON
By: /s/ XXXXX XXXXXXXXX
-----------------------------------------------------
Managing Director
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
XXX XXXXXX UNIT TRUSTS, SERIES 1058
[Incorporated herein by this reference and made a part hereof is the
"Portfolio" schedule as set forth in the Prospectus.]
