XXX XXXXXX UNIT TRUSTS, SERIES 813
TRUST AGREEMENT
Dated: November 21, 2008
This Trust Agreement among Xxx Xxxxxx Funds Inc., as Depositor, The Bank of
New York Mellon, as Trustee, Ibbotson Associates, 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 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 April 10, 2009,
and the 10th day of each month thereafter through August 10, 2009.
8. The term "Fund Shares" shall mean shares of an investment company
registered under the Investment Company Act of 1940, as amended, which are
deposited in the Trust.
9. The term "Mandatory Termination Date" shall mean the "Mandatory
Termination Date" for the Trust set forth in the "Essential Information" in the
Prospectus.
10. The "Supervisor" shall mean Ibbotson Associates, Inc. and its successors
in interest, or any successor portfolio supervisor appointed as provided in the
Standard Terms and Conditions of Trust.
11. 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.
12. The second sentence of section 2.01(b) is hereby deleted.
13. 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."
14. 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."
15. If a 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:
"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:
(a) with respect to the Fund Shares, promptly notify the Depositor and shall
thereupon take such action or refrain from taking any action, as appropriate, so
as to insure that such Fund Shares 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 Fund Shares held by owners other than the Trust; or
(b) with respect to Securities other than Fund Shares, 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."
16. 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;"
17. 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."
18. 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, 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 0.25% of the average daily Trust Evaluation (described in
Section 6.01)."
19. 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 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 Fund Shares not listed on a national or foreign securities
exchange, such Evaluation shall be made on the basis of the current net asset
value of such shares as determined by the issuers of such Fund Shares. 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 the current net asset value of Fund
Shares not listed on a national or foreign securities exchange, as determined by
the issuers of the Fund Shares, the current bid side prices for Zero Coupon
Obligations and the bid side value of any relevant currency exchange rate
expressed in U.S. dollars."
20. The seventh paragraph of Section 6.02 is hereby replaced in its entirety
with the following:
"Notwithstanding anything to the contrary in this Section 6.02, if the
Prospectus for a Trust provides for in kind distribution of Securities in
connection with Unit redemptions and a Unitholder tenders at least the minimum
number of Units stated in such Prospectus for redemption, a Unitholder may
request at the time of tender to receive from the Trustee in lieu of cash such
Unitholder's pro rata share of each Security then held by such Trust, provided
that the Security is principally traded in the United States if such limitation
is set forth in the Prospectus for the Trust. Such tendering Unitholder will
receive his pro rata number of whole shares of each of such Securities
comprising the portfolio of such Trust and cash from the Capital Account equal
to the value of the fractional shares and any Securities principally traded
outside the United States to which such tendering Unitholder is entitled and in
the case of an Equity and Treasury Trust such Unitholder's pro rata share of the
Zero Coupon Obligations held by such Trust. Such pro rata share of each Security
and the related cash to which such tendering Unitholder is entitled is referred
to herein as an "In Kind Distribution." An In Kind Distribution will be made by
the Trustee through the distribution of each of the Securities in book-entry
form to the account of the Unitholder's bank or broker-dealer at Depository
Trust Company. If funds in the Capital Account are insufficient to cover the
required cash distribution to the tendering Unitholder, the Trustee may sell
Securities according to the criteria discussed herein.
Notwithstanding the preceding paragraph, if a Unitholder electing an In Kind
Distribution is an Affiliated Redeeming Unitholder, as such term is defined
below, such In Kind Distribution shall be permitted subject to the following
conditions:
(a) The In Kind Distribution shall be consistent with the Trust's redemption
policies and undertakings, as set forth in the Trust's Prospectus;
(b) Neither the Affiliated Redeeming Unitholder, nor any other party with the
ability and the pecuniary incentive to influence the In Kind Distribution, may
select, or influence the selection of, the distributed Securities;
(c) Upon an In Kind Distribution by the Affiliated Redeeming Unitholder, the
Trustee shall distribute to the Affiliated Redeeming Unitholder its
proportionate share of every Security in the Trust's portfolio, provided that if
the Trustee is not an affiliated person (as the term "affiliated person" is
defined in the Investment Company Act of 1940, as amended) of the Affiliated
Redeeming Unitholder, the Trustee may exclude Discretionary Assets (as defined
below) from the In Kind Distribution to the extent that the Trustee cannot
practicably distribute such Discretionary Assets without undue burden or adverse
impact to the Trust or its Unitholders. If the Trustee determines that it is
impracticable to distribute the Discretionary Assets in kind, the Trustee shall
sell or liquidate the Discretionary Assets to raise funds to satisfy the
redemption, provided that if the Trustee cannot sell or liquidate the
Discretionary Assets, the Trustee may sell or liquidate other Securities;
(d) The In Kind Distribution may not favor the Affiliated Redeeming
Unitholder to the detriment of any other Unitholder;
(e) The Trustee shall monitor each In Kind Distribution on a quarterly basis
for compliance with all provisions of this Section 6.02; and
(f) The Trustee shall maintain and preserve for a period of not less than six
years from the end of the fiscal year in which the In Kind Distribution occurs,
the first two years in an easily accessible place, records for each In Kind
Distribution setting forth the identity of the Affiliated Redeeming Unitholder,
a description of the composition of the Trust's portfolio (including each
asset's value) immediately prior to the In Kind Distribution, a description of
each Security distributed in-kind, the terms of the In Kind Distribution, the
information or materials upon which the asset valuations were made, and a
description of the composition of the Trust's portfolio (including each asset's
value) one month after the In Kind Distribution.
The term "Affiliated Redeeming Unitholder" shall mean an affiliated person or
a promoter of or a principal underwriter for the Trust, or an affiliated person
of such a person, promoter or principal underwriter. The terms "affiliated
person," "promoter" and "principal underwriter" as used in the preceding
sentence shall have the meanings assigned to each such term in the Investment
Company Act of 1940, as amended.
The term "Discretionary Assets" shall mean (i) securities that, if
distributed, would be required to be registered under the Securities Act of
1933, as amended; (ii) securities issued by entities in countries that (A)
restrict or prohibit the holding of securities by non-nationals other than
through qualified investment vehicles, or (B) permit transfers of ownership of
securities to be effected only by transactions conducted on a local stock
exchange; and (iii) any assets that, although they may be liquid and marketable,
must be traded through the marketplace or with the counterparty to the
transaction in order to effect a change in beneficial ownership.
Notwithstanding anything to the contrary in the Standard Terms and Conditions
of Trust, no Unitholder may elect to have Units redeemed through an In Kind
Distribution within thirty (30) days of any Trust termination."
21. 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."
22. 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.
23. 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.
24. Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, if the Trustee sells, redeems or otherwise liquidates Fund
Shares 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 Fund Shares held by the Trust.
25. 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."
26. 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 each 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 any 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. Included with such notice shall be a form to enable Unitholders owning
that number of Units referred to in the Prospectus to request an In Kind
Distribution (as described in Section 6.02) during the period ending 31 days
prior to date of the related Trust's termination. No Unitholder shall be
permitted to have Units redeemed through an In Kind Distribution within 30 days
of any Trust termination.
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 related 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 such Trust or, to the extent that funds
are not available in such Account of such Trust, from the Capital Account of
such 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 such Trust, and (iii)
any costs, expenses or indemnities in connection with such Trust as provided
herein;
(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 Depositor, the Supervisor and counsel in
connection with such Trust, if any;
(c) deduct from the Income Account of such Trust or the Capital Account of
such 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 such Trust;
(d) make final distributions from such Trust, against surrender for
cancellation of all of each Unitholder's Certificate or Certificates, if issued,
as follows:
(i) to each Unitholder, such Unitholder's pro rata share of the cash balances
of the Income and Capital Accounts; and
(ii) 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
(e) 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 a 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."
27. Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, the Supervisor shall deliver to the Depositor such notices,
analyses, reports and other information regarding the Securities in a Trust as
the Depositor may reasonably request, which shall include, but not be limited
to, the following:
(a) a written research report containing analysis of each Security and the
market sectors of such Security delivered to the Depositor within a reasonable
time following the end of each calendar quarter;
(b) monthly teleconferences to discuss matters relating to the Securities;
(c) prompt written notification of any decline in market price of a Security
equal to or greater than (i) fifteen percent (15%) during any single Business
Day; (ii) twenty-five percent (25%) during any period of ten (10) Business Days;
(iii) thirty percent (30%) during any period of fifteen (15) Business Days; or
(iv) forty percent (40%) during any period of twenty (20) Business Days;
(d) prompt written notification of the occurrence of any of the conditions
set forth in Section 3.07 with respect to a Security and written instructions
describing the action recommended to be taken in connection therewith; and
(e) prompt written notification of the announcement or occurrence of any
event described in the second paragraph of Section 3.11 or any other corporate
action related to a 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/ XXXX X. XXXXXXX
-----------------------------------------------------
Executive Director
IBBOTSON ASSOCIATES, INC.
By /s/ XXXX XXXX
-----------------------------------------------------
President
THE BANK OF NEW YORK MELLON
By /s/ XXXXXXX XXXXXX
-----------------------------------------------------
Assistant Vice President
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
XXX XXXXXX UNIT TRUSTS, SERIES 813
[Incorporated herein by this reference and made a part hereof is the
"Portfolio" schedule as set forth in the Prospectus.]
