EXHIBIT 1.1
XXX XXXXXX UNIT TRUSTS,
TAXABLE INCOME SERIES 140
TRUST AGREEMENT
Dated: July 18, 2008
This Trust Agreement among Xxx Xxxxxx Funds Inc., as Depositor, The
Bank of New York Mellon, as Trustee, Standard & Poor's Securities Evaluations,
Inc., as Evaluator, and 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 Investing Primarily in
Mortgage-Backed Securities of the Modified Pass-Through Type Established On and
After September 12, 2002 (Including Xxx Xxxxxx Focus Portfolios, Taxable Income
Series 6 and Certain 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, Evaluator 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 the Trust
represented by each Unit thereof is a fractional amount, the numerator of which
is one and the denominator of which is the amount set forth under "Summary of
Essential Financial Information-General Information-Number of Units" in the
Prospectus for the Trust.
3. The aggregate number of Units described in Section 2.03(a) for each
Trust is that number of Units set forth under "Summary of Essential Financial
Information--General Information--Number of Units" in the Prospectus for the
Trust.
4. The term "First Settlement Date" shall mean the date set forth in
footnote 4 under "Summary of Essential Financial Information" in the Prospectus
for the Trust.
5. The term "Monthly Distribution Date" shall mean the "Distribution
Dates" set forth under "Summary of Essential Financial Information--Estimated
Distributions--Monthly Distributions" in the Prospectus for the Trust.
6. The term "Monthly Record Date" shall mean the "Record Dates" set
forth under "Summary of Essential Financial Information--Estimated
Distributions--Monthly Distributions" in the Prospectus for the Trust.
7. The term "Evaluator" shall mean Standard & Poor's Securities
Evaluations, Inc. and its successors in interest or any successor evaluator
appointed as provided in the Standard Terms and Conditions of Trust.
8. The term "Supervisor" shall mean Xxx Xxxxxx Asset Management and its
successors in interest or any successor supervisor appointed as provided in the
Standard Terms and Conditions of Trust.
9. 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.
10. Section 3.01 is hereby amended by deleting the phrase "earlier of
six months after the Initial Date of Deposit or the" each of the six times it
appears in such Section 3.01.
11. Section 3.05 is hereby amended by adding the following sentence at
the end of the first paragraph of Section 3.05: "The Trustee may from time to
time reserve amounts in the Interest Account sufficient to cover accrued
interest on any Contract Securities."
12. Section 3.05 is hereby amended by replacing the fourth paragraph of
Section 3.05 with the following:
"On or shortly after each Monthly Distribution Date for a Trust, the
Trustee shall distribute by mail to or upon the order of each Unitholder of
record of such Trust as of the close of business on the preceding Monthly Record
Date at the post office address appearing on the registration books of the
Trustee such Unitholder's pro rata share of the balance of the Interest Account
calculated as of the Monthly Record Date on the basis of one-twelfth of the
estimated annual interest income to such Trust for the ensuing twelve months,
after deduction of the estimated costs and expenses of such Trust to be incurred
during the twelve month period for which the interest income has been estimated.
In making such computation, the Trustee shall treat as received amounts
receivable by the Trust on the Securities prior to the next following Monthly
Distribution Date in respect of a record date for a Security occurring on or
before the Monthly Record Date on which the computation is being made; should
such amounts not be received by the Trust, the computation shall be adjusted to
reflect amounts actually received."
13. Section 3.05 is hereby amended by adding the following paragraph
immediately after the fifth paragraph of Section 3.05:
"In the event the amount on deposit in the Interest Account of a Trust
is not sufficient for the payment of the amount of interest to be distributed to
Unitholders on the bases of the aforesaid computations, the Trustee may advance
its own funds and cause to be deposited in and credited to such Interest Account
such amounts as may be required to permit payment of the monthly interest
distribution to be made as aforesaid and shall be entitled to be reimbursed out
of amounts credited to the Interest Account subsequent to the date of such
advance."
14. Section 3.05 is amended by adding the following subsection
immediately after Section 3.05(e):
"(f) 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."
15. Section 3.07(a)(viii) of the Standard Terms and Conditions of Trust
shall be replaced in its entirety with the following:
"(viii) 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."
16. The first two sentences in the second paragraph of Section 3.12 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. "
17. Section 3.13(a)(1) of the Standard Terms and Conditions of Trust
shall be replaced in its entirety with the following:
"(1) 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;"
18. The Standard Terms and Conditions of Trust shall be amended to
include the following section:
"Section 3.17. 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.
19. For purposes of Section 5.01 (a), "Business Day" shall mean any day
the New York Stock Exchange is open for business.
20. The Trustee's annual compensation as set forth under Section 7.04
shall be that amount per 1,000 Units set forth under the section entitled
"Summary of Essential Financial Information - Expenses - Trustee's Fee" in the
Prospectus Part I for each 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 Bonds 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
----------------------
Executive Director
XXX XXXXXX ASSET MANAGEMENT
By /s/ XXXX X. XXXXXXX
----------------------
Executive Director
STANDARD & POOR'S SECURITIES EVALUATIONS, INC.
By /s/ XXXXX X. XXXXXXXX
----------------------
Senior Vice President
THE BANK OF NEW YORK
By /s/ XXXXX XXXXXX
----------------------
Assistant Vice President
SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
XXX XXXXXX UNIT TRUSTS, TAXABLE INCOME SERIES 140
[Incorporated herein by this reference and made a part hereof is the
"Portfolio" Schedule as set forth in the Prospectus Part I for each Trust.]
