Exhibit 1.1
XXX XXXXXX UNIT TRUSTS, SERIES 536
TRUST AGREEMENT
Dated: November 15, 2005
This Trust Agreement among Xxx Xxxxxx Funds Inc., as Depositor, The
Bank of New York, as Trustee, 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 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 each 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 a
Trust in the "Summary of Essential Financial Information" 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 "Summary
of Essential Financial 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 "Summary of Essential
Financial Information" in the Prospectus.
7. With respect to the Utility Income Portfolio, Series 19, the term
"Deferred Sales Charge Payment Date" shall mean July 10, 2006 and the tenth day
of each month thereafter through November 10, 2006. With respect to all other
Trusts, the term "Deferred Sales Charge Payment Date" shall mean April 10, 2005
and the tenth day of each month thereafter through August 10, 2006 with respect
to the amount designated "Deferred sales charge in the first year" in the "Fee
Table" in the Prospectus and April 10, 2007 and the tenth day of each month
thereafter through June 10, 2007 with respect to the amount designated "Deferred
sales charge in second year" in the "Fee Table" in the Prospectus.
8. 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.
9. With respect to Financial Institutions Portfolio, Series 28 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.
10. With respect to Xxxxx & Steers REIT Income Portfolio 2005-4 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. With respect to all
other Trusts, 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.
11. With respect to Financial Institutions Portfolio, Series 28 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.
12. With respect to Xxxxx & Steers REIT Income Portfolio 2005-4 and
Utility Income Portfolio, Series 19 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 (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."
13. With respect to Xxxxx & Steers REIT Income Portfolio 2005-4 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, 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 0.05% of the average daily Trust Evaluation
(described in Section 6.01) for Xxxxx & Steers REIT Income Portfolio 2005-4."
14. 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."
15. 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 for the related Trust set forth
under "Essential Information" in the Prospectus and shall have such
Units redeemed on such date as provided herein."
16. 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."
17. 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.
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
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 536
[Incorporated herein by this reference and made a part hereof is each
"Portfolio" schedule as set forth in the Prospectus.]
