FT 3435
TRUST AGREEMENT
Dated: March 22, 2012
This Trust Agreement among First Trust Portfolios L.P., as
Depositor, The Bank of New York Mellon, as Trustee, First Trust
Advisors L.P., as Evaluator and Portfolio Supervisor, and FTP
Services LLC, as FTPS Unit Servicing Agent, sets forth certain
provisions in full and incorporates other provisions by reference
to the document entitled "Standard Terms and Conditions of Trust
for FT 906 and certain subsequent Series, effective October 19,
2004" (herein called 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, the Trustee, the
Evaluator, the Portfolio Supervisor and the FTPS Unit Servicing
Agent agree as follows:
PART I
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the Provisions of Part II and Part III 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
HIGH YIELD CORPORATE TRUST, SHORT INTERMEDIATE, SERIES 3
The following special terms and conditions are hereby agreed
to:
A. The Securities defined in Section 1.01(5) listed in
Schedule A hereto have been deposited in trust under this Trust
Agreement.
B. The aggregate number of Units outstanding for the Trust
on the Initial Date of Deposit and the initial fractional
undivided interest in and ownership of the Trust represented by
each Unit thereof are set forth in the Prospectus in the section
"Summary of Essential Information."
Documents representing this number of Units for the Trust
are being delivered by the Trustee to the Depositor pursuant to
Section 2.03 of the Standard Terms and Conditions of Trust.
C. The First General Record Date and the amount of the
second distribution of funds from the Interest Account shall be
the record date for the first distribution from the Interest
Account and the amount of such distribution as set forth in the
"Summary of Essential Information" in the Prospectus.
D. The "First Settlement Date" is the date set forth in
the "Summary of Essential Information" in the Prospectus.
E. First Trust Advisors L.P.'s compensation as referred to
in Section 4.03 of the Standard Terms and Conditions of Trust and
FTP Services LLC's compensation as referred to in Section 3.15 of
the Standard Terms and Conditions of Trust shall collectively be
an annual fee in the amount of $0.81 per Unit, payable to such of
First Trust Advisors L.P. and/or FTP Services LLC as they, or
either of them, shall from time to time direct by written notice
to the Trustee.
F. The Trustee's compensation as referred to in
Section 6.04 of the Standard Terms and Conditions of Trust shall
be an annual fee in the amount of $0.98 per Unit calculated based
on the largest number of Units outstanding during the calendar
year except during the initial offering period as determined in
Section 4.01 of this Indenture, in which case the fee is
calculated based on the largest number of units outstanding
during the period for which the compensation is paid (such annual
fee to be pro rated for any calendar year in which the Trustee
provides services during less than the whole of such year).
However, in no event, except as may otherwise be provided in the
Standard Terms and Conditions of Trust, shall the Trustee receive
compensation in any one year from any Trust of less than $2,000
for such annual compensation. The Bank of New York Mellon, or any
of its affiliates, may perform services in any capacity for any
exchange traded fund, investment company, investment trust or
other entity whose shares are held as an asset of the Trust, and
The Bank of New York Mellon, as Trustee, shall be entitled to
receive the foregoing compensation, without reduction,
notwithstanding that The Bank of New York Mellon or an affiliate
is receiving compensation for services to such exchange traded
fund, investment company, investment trust or other entity.
Without limiting the scope of the expenses for which the Trustee
is entitled to reimbursement in accordance with Section 6.04 of
the Standard Terms and Conditions of Trust, the amounts
receivable by the Trustee from the Trust shall include amounts
charged by the Trustee or an affiliate in connection with custody
of securities at any branch or affiliate of the Trustee located
outside the United States.
G. The Initial Date of Deposit for the Trust is March 22,
2012.
PART III
A. Section 1.01 of the Standard Terms and Conditions of
Trust shall be amended to replace the defined term "Bonds" with a
defined term "Securities" having the same definition, and the
term "Bonds" whenever used throughout the Standard Terms and
Conditions of Trust shall be replaced with the term "Securities."
B. Section 1.01 of the Standard Terms and Conditions of
Trust shall be amended to include the following:
"Section 1.01(20). "FTPS Unit" shall mean Units which
are purchased through the Fund/SERV(R) trading system or on
a manual basis through FTP Services LLC or for which FTP
Services LLC is acting as FTPS Unit Servicing Agent."
"Section 1.01(21). "FTPS Unit Servicing Agent" shall
mean FTP Services LLC or any successor FTPS Unit servicing
agent appointed as hereinafter provided."
"Section 1.01(22). "Percentage Ratio" with respect to
each Security in a Trust is that percentage derived by
dividing the principal amount of such Security included in
the initial deposit made pursuant to Section 2.01 (a) by the
total principal amount of all Securities included in such
deposit. The Percentage Ratio shall be adjusted to the
extent necessary to reflect the occurrence of an event which
effects the capital structure of the issuer of the Security
or a sale of a Security made pursuant to Section 3.07."
"Section 1.01(23). "Unit holder" shall be the
registered holder of any Unit, whether or not in
certificated form, as recorded on the registration books of
the Trustee."
C. Section 2.01(e) of the Standard Terms and Conditions of
Trust shall be amended to read as follows:
"The Trustee is hereby irrevocably authorized to effect
registration or transfer of the Securities in fully
registered form to the name of the Trustee or to the name of
its nominee or to hold the Securities in a clearing agency
registered with the Securities and Exchange Commission, in a
book entry system operated by the Federal Reserve Board,
with an Eligible Foreign Custodian or in an Eligible
Securities Depository."
D. Clauses (v) and (vi) of Section 2.01(g) of the Standard
Terms and Conditions of Trust shall be amended to read as
follows:
"(v) In the event the Depositor fails to take such
action required by paragraph (iii) above, the Trustee shall,
on the settlement date for such subscription, settle the
securities transactions specified in the Subscription Notice
to the extent assets are available in the Trust or from
sales of additional Units created by such deposit.
(vi) Neither the Trustee nor Unit holders of the Trust
will be responsible for any loss resulting from the failure
of the Depositor to take such action required by paragraph
(iii) above."
E. References in Section 3.05 of the Standards Terms and
Conditions of Trust to a Trust's Record Date or Monthly Record
date occurring on the fifteenth day of a month shall be replaced
with the tenth day of a month, and references to distributions
occurring on the first day of the month following a Record Date
shall be replaced with the twenty-fifth day of the month in which
the related Record Date occurs.
F. For Trusts which make annualized distributions of
income, as set forth in the Prospectus for such Trust, the third
sentence of the fifth paragraph and the sixth paragraph of
Section 3.05 shall be replaced with the following:
"For purposes of this Section 3.05, the Unit holder's
Interest Distribution shall be equal to such Unit holder's
pro rata share of the balance of the Interest Account
calculated as of the prior Record Date, on the basis of one-
twelfth of (i) the annual interest of the Trust for the
ensuing twelve months estimated by reference to the
distributions made on the Securities during the preceding
calendar quarter (as adjusted for any information with
respect to future distributions received by the Trustee
prior to such Record Date) less (ii) the fees and expenses
then deductible pursuant to Section this 3.05 and (iii) the
Trustee's estimate of other expenses properly chargeable to
the Interest Account pursuant to the Indenture which have
accrued, as of such Record Date, or are otherwise properly
attributable to the period to which such Interest
Distribution relates. The Trustee shall advance out of its
own funds and deposit in and credit to the Interest Account
on each Distribution Date, to the extent that there is not
sufficient cash in the Interest Account, the additional
amount, if any, anticipated by the Trustee to be necessary
to make the Interest Distribution as specified in the
preceding sentence; the Trustee shall be entitled to be
reimbursed from the Interest Account without interest when
funds are available therein from income on any of the
Securities, including upon the sale of Securities to meet
redemptions, for any and all amounts advanced by it pursuant
to this paragraph. The Trustee shall be deemed to be the
beneficial owner of the income of the Trust to the extent
such income is required to reimburse the Trustee for amounts
advanced by it pursuant to this paragraph; amounts payable
to the Trustee in respect of such advances shall be secured
by a lien on the Trust prior to the interests of Unit
holders. In the event any issuer of Securities fails to make
an anticipated distribution, or there is a disposition of
Securities or other event that reduces the net income which
will be received from that estimated by the Trustee, the
Trustee shall, on the Record Date or Record Dates next
following the Trustee's determination that such event has
occurred, reduce the amount of the next following
distribution or distributions by such amount as will enable
the Trustee to recover any advances to the Trust referable
to the anticipated receipt of such unrealized income as
promptly as possible. As determined by the Trust's
independent registered public accounting firm, the Trustee
shall adjust the December distribution from the Interest and
Principal Accounts as may be necessary so that the Trust
distributions during the calendar year equal an amount
necessary to avoid paying any regulated investment company
excise tax during such year. The Trustee is authorized to
reduce the following January distribution by the amount of
any such increase."
G. Section 3.05 of the Standard Terms and Conditions of
Trust shall be amended to include the following after
sub-paragraph (d):
"(e) deduct from the Income account or, to the extent
funds are not available in such Account, from the Capital
Account and pay to the FTPS Unit Servicing Agent the amount
that it is entitled to receive pursuant to Section 3.15."
H. Section 3.06 of the Standard Terms and Conditions of
Trust shall be amended to restate clause (3) of paragraphs (A)
and (B) as follows:
"(3) the deductions for payment of applicable taxes and
fees and expenses, including amounts paid for updating of
the Trust's registration statement which shall be separately
identified, and"
I. Section 3.07 of the Standard Terms and Conditions of
Trust shall be amended to add the following section immediately
after Section 3.07(g):
"(h) that there has been a public tender offer made for
a Security or a merger or acquisition is announced
affecting a Security, and that in the opinion of the
Sponsor the sale or tender of the Security is in the best
interest of the Unit holders;
(i) that the sale of Securities is necessary or
advisable: (i) in order to maintain the qualification of the
Trust as a regulated investment company in the case of a
Trust which has elected to qualify as such; or (ii) to
provide funds to make any distribution from such a Trust for
a taxable year in order to avoid imposition of any income or
excise taxes on undistributed income in the Trust;
(j) that as a result of the ownership of the Security,
the Trust or its Unit holders would be a direct or indirect
shareholder of a passive foreign investment company as
defined in section 1297(a) of the Internal Revenue Code; or
(k) that such sale is necessary for the Trust to
comply with such federal and/or state securities laws,
regulations and/or regulatory actions and interpretations
which may be in effect from time to time."
J. Section 3.15 of the Standard Terms and Conditions of
Trust shall be replaced with the following:
"Section 3.15. FTPS Unit Servicing Agent. FTP Services
LLC acts as record keeper, shareholder servicing agent and
distribution agent for Units which are purchased and sold
through the Fund/SERV(R) trading system or on a manual basis
through FTP Services LLC. ("FTPS Units").
(a) The FTPS Unit Servicing Agent shall perform all of
the duties with respect to recordkeeping of FTPS Units and
FTPS Unit holders, distributions, redemption of FTPS Units
and communications to and with FTPS Unit holders listed
below.
(1) The FTPS Unit Servicing Agent shall keep
proper books of record and account of all of the
transactions in the FTPS Units of each Trust under this
Indenture at its corporate office, including a record
of the name and address of, and the FTPS Units issued
by each Trust and held by, every FTPS Unit holder, and
such books and records of each Trust shall be made
available to the Trustee and the Depositor promptly
upon request and open to inspection by any FTPS Unit
holder of such Trust, with respect to such FTPS Unit
holders transactions, at all reasonable times during
usual business hours. Without limiting the foregoing,
the FTPS Unit Servicing Agent shall make any records or
documents described in Reg. 270.31(a)-1 under the
Investment Company Act of 1940 available promptly to
the Trustee and the Depositor upon request during usual
business hours and will preserve such records and
documents for the periods prescribed in Reg. 270.31(a)-
2 thereunder.
(2) The FTPS Unit Servicing Agent shall
distribute on or shortly after the Distribution Dates
specified in the Trust Agreement to each FTPS Unit
holder of record on its books on the Record Date for
each such Distribution Date specified in the Trust
Agreement such FTPS Unit holder's distribution as
computed under the Standard Terms and Conditions of
Trust.
(3) In connection with such distributions set
forth above, the FTPS Unit Servicing Agent shall
furnish a Distribution Statement to FTPS Unit holders
of record on its books. The content and frequency of
such Distribution Statements shall in no respect be
less detailed or frequent than that specified in
Section 3.06 of the Standard Terms and Conditions of
Trust.
(4) The FTPS Unit Servicing Agent shall transmit
to each FTPS Unit holder of record any notice or other
communication received from the Trustee and shall be
solely responsible for soliciting and transmitting to
the Trustee any notice required from FTPS Unit holders.
(5) The FTPS Unit Servicing Agent shall be
responsible for all tax reporting required from time
to time by applicable law and regulations with respect
to holders of FTPS Units, and reporting of cost basis
in respect of the FTPS Units of such holders
(including, without limitation, reporting required by
Section 6045(g) of the Internal Revenue Code of 1986,
as amended).
(6) For purposes of permitting FTPS Unit holders
to satisfy any reporting requirements of applicable
federal or state tax law, the FTPS Unit Servicing Agent
shall provide the Trustee with the name, address,
number of FTPS Units held by, and such other
information as requested by the Trustee, for every FTPS
Unit holder so that the Trustee can transmit to any
FTPS Unit holder of record on the FTPS Unit Servicing
Agent's books any reports required to be distributed
pursuant to Section 4.02 of the Standard Terms and
Conditions of Trust. The Trustee may rely on the
accuracy and completeness of the information (including
any records or documents made available) provided to it
by the FTPS Unit Servicing Agent and may accept such
information without inquiry. Each of the Depositor and
the FTPS Unit Servicing Agent hereby agree, jointly and
severally, to indemnify the Trustee and hold Trustee
harmless from and against any and all costs, expenses,
penalties, damages, liabilities or claims including
attorneys' and accountants' fees sustained or incurred
by or asserted against the Trustee by reason of or as a
result of any of the information provided to the
Trustee by the FTPS Unit Servicing Agent being
inaccurate or incomplete. This indemnity shall be a
continuing obligation of each of the Depositor and the
FTPS Unit Servicing Agent, and their successors and
assigns, notwithstanding the termination of this Trust
Agreement.
(7) The FTPS Unit Servicing Agent shall
distribute to redeeming FTPS Unit holders of record on
its books redemption proceeds it receives pursuant to
Section 5.02 of the Standard Terms and Conditions of
Trust from the Trustee as the sole record owner of FTPS
Units on the Trustee's books.
(8) The FTPS Unit Servicing Agent shall
distribute to FTPS Unit holders of record on its books
a pro rata portion of termination proceeds it receives
pursuant to Section 8.02 of the Standard Terms and
Conditions of Trust from the Trustee as the sole record
owner of FTPS Units on the Trustee's books.
(9) In connection with such termination
distributions set forth above, the FTPS Unit Servicing
Agent shall furnish a Final Distribution Statement to
FTPS Unit holders of record on its books. The content
of such Final Distribution Statements shall in no
respect be less detailed than that specified in Section
8.02 of the Standard Terms and Conditions of Trust.
(10) As requested by the Depositor and/or the
Trustee, the FTPS Unit Servicing Agent shall perform
such other functions which, from time to time, are
agreed upon by the parties hereto and which may give
rise to additional fees.
(b) As compensation for providing the services set
forth herein, of a character described in Section
26(a)(2)(C) of the Investment Company Act of 1940, and to
the extent that such services are in addition to, and do not
duplicate, the services to be performed by the Trustee, FTP
Services LLC shall receive, in arrears, against a statement
or statements therefore submitted to the Trustee monthly or
annually an aggregate annual fee in the per Unit amount set
forth in Part II of the Trust Agreement for the Trust,
calculated based on the largest number of Units outstanding
during the calendar year, except during the initial public
offering as determined in Section 4.01 of the Standard Terms
and Conditions of Trust, in which case the fee is calculated
based on the largest number of Units outstanding during the
period for which the compensation is paid (such annual fee
to be pro rated for any calendar year in which FTP Services
LLC provides services described herein during less than the
whole of such year). Such fee may exceed the actual cost of
providing such services for the Trust, but at no time will
the total amount received by FTP Services LLC for rendering
the services described in this Section 3.15 and First Trust
Advisors L.P. for rendering the services described in
Section 4.03 to unit investment trusts of which the
Depositor is the sponsor in any calendar year exceed the
aggregate cost to FTP Services LLC and First Trust Advisors
L.P. of supplying such services in such year. Such
compensation may, from time to time, be adjusted by the
Depositor provided that the total adjustment upward does
not, at the time of such adjustment, exceed the percentage
of the total increase, after the date hereof, in consumer
prices for services as measured by the United States
Department of Labor Consumer Price Index entitled "All
Services Less Rent of Shelter" or similar index, if such
index should no longer be published. The consent or
concurrence of any Unit holder hereunder shall not be
required for any such adjustment or increase. Such
compensation shall be paid by the Trustee, upon receipt of
an invoice therefore from FTP Services LLC, which shall
constitute the representation by FTP Services LLC that the
bookkeeping and administrative services for which
compensation is claimed are properly compensable hereunder
and that the aggregate cost incurred by FTP Services LLC of
providing FTPS Unit shareholder servicing hereunder was not
less than the compensation claimed, upon which
representation the Trustee may conclusively rely. Such
compensation shall be charged against the Interest and/or
Principal Accounts, in accordance with Section 3.05 of the
Standard Terms and Conditions of Trust.
If the cash balance in the Interest and Principal
Accounts shall be insufficient to provide for amounts
payable pursuant to this Section 3.15, the Trustee shall
have the power to sell (i) Securities from the current list
of Securities designated to be sold pursuant to Section 5.02
hereof, or (ii) if no such Securities have been so
designated, such Securities as the Trustee may see fit to
sell in its own discretion, and to apply the proceeds of any
such sale in payment of the amounts payable pursuant to this
Section 3.15.
All moneys payable to the FTPS Unit Servicing Agent
pursuant to this Section 3.15 shall be secured by a lien on
the Trust prior to the interest of Unit holders, but no such
lien shall be prior to any lien in favor of the Trustee
under the provisions of Section 6.04 of the Standard Terms
and Conditions of Trust.
(c) The FTPS Unit Servicing Agent shall be under no
liability for any action taken in good faith on any
appraisal, paper, order, list, demand, request, consent,
affidavit, notice, opinion, direction, evaluation,
endorsement, assignment, resolution, draft or other
document, whether or not of the same kind, prima facie
properly executed, or for the disposition of moneys,
pursuant to this Indenture, except by reason of its own
negligence, lack of good faith or willful misconduct,
provided that the FTPS Unit Servicing Agent shall not in any
event be liable or responsible for any evaluation made by
the Evaluator.
(d) Except as the context otherwise requires, the FTPS
Unit Servicing Agent shall be subject to the provisions of
Section 4.05 herein in the same manner as it would if it
were the Evaluator.
(e) The FTPS Unit Servicing Agent shall be indemnified
ratably by the affected Trust and held harmless against any
loss or liability accruing to it without negligence, bad
faith or willful misconduct on its part, arising out of or
in connection with the operations of the Trust, including
the costs and expenses (including counsel fees) of defending
itself against any claim of liability in the premises,
including without limitation any loss, liability or expense
incurred in acting pursuant to written directions to the
FTPS Unit Servicing Agent given by the Trustee or Depositor
from time to time in accordance with the provisions of this
Indenture or in undertaking actions from time to time which
the FTPS Unit Servicing Agent deems necessary in its
discretion to protect the Trust and the rights and interests
of the FTPS Unit holders pursuant to the terms of this
Indenture.
(f) The FTPS Unit Servicing Agent shall conduct its
operations in a manner that is compatible with the current
operational procedures and requirements of the Trustee
(including, without limiting the foregoing, the provision
and receipt of data in such format and meeting such
technical requirements as the Trustee may specify) and shall
exercise its best efforts to accommodate any changes in the
operational procedures and requirements which the Trustee
may make upon prior notice to the FTPS Unit Servicing Agent.
The Depositor acknowledges and agrees that the default of
the FTPS Unit Servicing Agent in its obligations under this
paragraph, or the performance by the FTPS Unit Servicing
Agent of its obligations in a manner which shall adversely
affect the Trustee's performance of its duties, shall be a
sufficient grounds for the Trustee to remove the FTPS Unit
Servicing Agent pursuant to Section 3.15(d) and Section
4.05.
(g) As used in this Section 3.15, "FTPS Unit holder,"
when referring to the records of the Trustee, shall mean the
FTPS Unit Servicing Agent and, when referring to the records
to be maintained by the FTPS Unit Servicing Agent, shall
mean each owner of a FTPS Unit identified on the records of
the FTPS Unit Servicing Agent."
K. For Trusts which intend to qualify as a regulated
investment company, as set forth in the Prospectus for such
Trusts, Article III of the Standard Terms and Conditions of Trust
shall be amended to include the following section:
"Section 3.16. Regulated Investment Company Election;
Trustee's Reliance on Advice of the Trust Accountants with
respect to compliance with Regulated Investment Company
Rules. Each Trust elects to be treated and to qualify as a
"regulated investment company," as set forth in the
Prospectus for such Trusts, each such Trust elects to be
treated and to qualify as a "regulated investment company",
as defined in the Internal Revenue Code, and the Trustee is
hereby directed to make such elections, including any
appropriate election to be taxed as a corporation, as shall
be necessary to effect such qualification.
The Trustee will engage accountants selected by the
Depositor to prepare or review tax returns and tax filings
for each such Trust and otherwise to monitor all aspects of
such Trust's compliance with the rules of the Internal
Revenue Code applicable to regulated investment companies.
The Trustee shall not be liable to any person for any
actions taken upon the instruction of such accountants or
for any omission in the absence of such instruction."
L. Section 4.01 of the Standard Terms and Conditions of
Trust shall be amended to include the FTPS Unit Servicing Agent
among the parties who are furnished information concerning the
Evaluation of each issue of Securities deposited in the Trust and
the Trust Fund Evaluation.
M. The heading of Article IV of the Standard Terms and
Conditions of Trust shall be replaced with the following:
"Article IV Evaluation of Securities; Compensation for
Evaluation, Portfolio Supervisions and Bookkeeping and
Administrative Services; Succession"
N. Section 4.03 of the Standard Terms and Conditions of
Trust shall be replaced with the following:
"Section 4.03. Compensation for Services Provided. As
compensation for providing portfolio supervisory services in
its capacity as Portfolio Supervisor, evaluation services in
its capacity as Evaluator, and for providing bookkeeping and
other administrative services to the Trust of a character
described in Section 26(a)(2)(C) of the Investment Company
Act of 1940, and to the extent that such services are in
addition to, and do not duplicate, the services to be
provided hereunder by the Trustee, First Trust Advisors L.P.
shall receive, in arrears, against a statement or statements
therefor submitted to the Trustee monthly or annually an
aggregate annual fee in the per Unit amount set forth in
Part II of the Trust Agreement for the Trust, calculated
based on the largest number of Units outstanding during the
calendar year, except during the initial offering period as
determined in Section 4.01 of this Indenture, in which case
the fee is calculated based on the largest number of Units
outstanding during the period for which the compensation is
paid (such annual fee to be pro rated for any calendar year
in which First Trust Advisors L.P. provides services
described herein during less than the whole of such year).
Such fee may exceed the actual cost of providing such
services for the Trust, but at no time will the total amount
received by First Trust Advisors L.P. for rendering the
services described in this Section 4.03 and FTP Services LLC
for rendering he services described in Section 3.15 to unit
investment trusts of which the Depositor is the sponsor in
any calendar year exceed the aggregate cost to First Trust
Advisors L.P. and FTP Services LLC of supplying such
services in such year. Such compensation may, from time to
time, be adjusted provided that the total adjustment upward
does not, at the time of such adjustment, exceed the
percentage of the total increase after the date hereof in
consumer prices for services as measured by the United
States Department of Labor Consumer Price Index entitled
"All Services Less Rent of Shelter" or similar index, if
such index should no longer be published. The consent or
concurrence of any Unit holder hereunder shall not be
required for any such adjustment or increase. Such
compensation shall be paid by the Trustee, upon receipt of
an invoice therefor from First Trust Advisors L.P., which
shall constitute the representation by First Trust Advisors
L.P. that the bookkeeping and administrative services for
which compensation is claimed are properly compensable
hereunder and that the aggregate cost incurred by First
Trust Advisors L.P. of providing portfolio supervisory,
evaluation and bookkeeping and administrative services
hereunder was not less than the compensation claimed, upon
which representation the Trustee may conclusively rely.
Such compensation shall be charged against the Interest
and/or Principal Accounts in accordance with Section 3.05.
If the cash balance in the Interest and Principal Accounts
shall be insufficient to provide for amounts payable
pursuant to this Section 4.03, the Trustee shall have the
power to sell (i) Securities from the current list of
Securities designated to be sold pursuant to Section 5.02
hereof, or (ii) if no such Securities have been so
designated, such Securities as the Trustee may see fit to
sell in its own discretion, and to apply the proceeds of any
such sale in payment of the amounts payable pursuant to this
Section 4.03.
Any monies payable to First Trust Advisors, L.P. pursuant to
this Section 4.03 shall be secured by a lien on the Trust
prior to the interest of Unit holders, but no such lien
shall be prior to any lien in favor of the Trustee under the
provisions of Section 6.04 herein."
O. Section 4.04 of the Standard Terms and Conditions of
Trust shall be replaced in its entirety by the following:
"Section 4.04. Liability of Evaluator. The Trustee, FTPS
Unit Servicing Agent, Depositor and the Unit holders may
rely on any Evaluation furnished by First Trust Advisors
L.P., acting in its capacity as Evaluator, and shall have no
responsibility for the accuracy thereof. The determinations
made by the Evaluator hereunder shall be made in good faith
upon the basis of the best information available to it. The
Evaluator shall be under no liability to the Trustee, FTPS
Unit Servicing Agent, Depositor or the Unit holders for
errors in judgment; provided, however, that this provision
shall not protect the Evaluator against any liability to
which it would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless
disregard of its obligations and duties hereunder."
P. Section 4.05 of the Standard Terms and Conditions of
Trust shall be replaced with the following:
"Section 4.05. Resignation and Removal of Portfolio
Supervisor and/or Evaluator and/or Provider of Bookkeeping
Services Described in Section 4.03; Successor. (a) First
Trust Advisors L.P. and any successor appointed as hereafter
provided, in its capacity as Evaluator and/or Portfolio
Supervisor and/or provider of bookkeeping services described
in Section 4.03, may resign and be discharged hereunder by
executing an instrument of resignation in writing and filing
the same with the Depositor and the Trustee, not less than
sixty days before the date specified in such instrument
when, subject to Section 4.05(f), such resignation is to
take effect. Upon receiving such notice of resignation, the
Depositor and the Trustee shall use their best efforts to
appoint a successor to act in the capacity as to which the
resignation applies, such successor to have qualifications
and to be compensated at a rate of compensation satisfactory
to the Depositor and the Trustee. Such appointment shall be
made by written instrument executed by the Depositor and the
Trustee, in duplicate, one copy of which shall be delivered
to the resigning party and one copy to the successor. The
Depositor or the Trustee may remove the Evaluator and/or
Portfolio Supervisor and/or party performing bookkeeping and
administrative services at any time upon thirty days'
written notice and appoint a successor to act in the
capacity to which the removed applies, such successor to
have qualifications and to be compensated at a rate of
compensation satisfactory to the Depositor and the Trustee,
provided, however, that so long as First Trust Portfolios
L.P. is acting as Depositor, the Trustee shall have no power
to remove any affiliate of the Depositor who may be acting
in any such capacity or capacities. Such appointment shall
be made by written instrument executed by the Depositor and
the Trustee, in duplicate, one copy of which shall be
delivered to the party removed and one copy to its
successor. Notice of such resignation or removal and
appointment of a successor shall be mailed by the Trustee to
each Unit holder then of record.
(b) Any successor evaluator and/or successor portfolio
supervisor and/or provider of bookkeeping and administrative
services described in Section 4.03, as appropriate,
appointed hereunder, shall execute, acknowledge and deliver
to the Depositor and the Trustee an instrument accepting
such appointment hereunder, and such successor without any
further act, deed or conveyance shall become vested with all
the rights, powers, duties and obligations of its
predecessor hereunder with like effect as if originally
named herein and shall be bound by all the terms and
conditions of this Indenture.
(c) The Portfolio Supervisor may employ one or more
sub-Portfolio Supervisors to assist in performing the
services set forth in this Section 4.05 and shall not be
answerable for the default of any such sub-Portfolio
Supervisors if such sub-Portfolio Supervisors shall have
been selected with reasonable care, provided, however, that
the Portfolio Supervisor will indemnify and hold the Trust
harmless from and against any loss occurring as a result of
a sub-Portfolio Supervisor's willful misfeasance, reckless
disregard, bad faith, or gross negligence in performing
supervisory duties. The fees and expenses charged by such
sub-Portfolio Supervisors shall be paid by the Portfolio
Supervisor out of proceeds received by the Portfolio
Supervisor in accordance with Section 4.03 hereof.
(d) In case at any time the Evaluator and/or Portfolio
Supervisor and/or provider of bookkeeping and administrative
services described in Section 4.03 shall resign and no
successor shall have been appointed and have accepted
appointment within thirty days after notice of resignation
has been received by the Depositor and the Trustee, the
resigning party may forthwith apply to a court of competent
jurisdiction for the appointment of a successor. Such court
may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor.
(e) Any corporation into which the Evaluator and/or
Portfolio Supervisor and/or provider of bookkeeping and
administrative services described in Section 4.03 hereunder
may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to
which the Evaluator and/or Portfolio Supervisor and/or
provider of bookkeeping and administrative services
described in Section 4.03 hereunder shall be a party, shall
be the successor under this Indenture without the execution
or filing of any paper, instrument or further act to be done
on the part of the parties hereto, notwithstanding anything
to the contrary contained herein or in any agreement
relating to such merger or consolidation by which the
Evaluator and/or Portfolio Supervisor and/or provider of
bookkeeping and administrative services described in
Section 4.03 may seek to retain certain powers, rights and
privileges for any period of time following such merger or
consolidation.
(f) Any resignation or removal of the Evaluator and/or
Portfolio Supervisor and/or provider of bookkeeping and
administrative services described in Section 4.03 shall
become effective upon acceptance of appointment by the
successor as provided in subsection (b) hereof."
Q. The second sentence of the first paragraph of Section
5.01 of the Standard Terms and Conditions of Trust shall be
amended to delete subsection (ii) of such sentence and replace it
in its entirety with the following:
"(ii) amounts representing estimated accrued expenses
of such Trust including but not limited to unpaid fees and
expenses of the Trustee, the Evaluator, the Portfolio
Supervisor, the FTPS Unit Servicing Agent, the Depositor and
its counsel, in each case as reported by the Trustee to the
Depositor on or prior to the date of Evaluation,"
R. The third paragraph of Section 5.01 of the Standard
Terms and Conditions of Trust is deleted.
S. The following paragraph shall be added following the
sixth paragraph of Section 5.02 of the Standard Terms and
Conditions of Trust;
"Nothwithstanding the foregoing, when directed by the
Depositor or when determined by the Trustee, the Trustee may
advance funds required to pay the Redemption Price, provided
that the Trustee shall have no obligation to advance funds if
the unreimbursed amount advanced to the Trust for this
purpose then equals at least $15,000. When directed by the
Depositor or determined by the Trustee, but in all events as
promptly as reasonably practicable whenever the unreimbursed
amount advanced by the Trustee equals or exceeds $15,000, the
trustee shall sell additional Securities and shall reimburse
itself the amount of the advance, provided that the Trustee's
right to reimbursement shall not be affected by any delay in
sale or reimbursement. The Trustee's right to reimbursement
shall be secured by a lien on the Trust prior to the interest
of the Unit holders."
T. Section 5.03 of the Standard Terms and Conditions of
Trust shall be replaced in its entirety with the following:
"Section 5.03. Transfer of Units. The registered
holder of any Unit may transfer such Unit by the
presentation of transfer instructions to the Trustee at the
unit investment trust division 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.
The Trustee may deem and treat the person in whose name
any Unit shall be registered upon the books of the Trustee
as the owner of such Unit or Units for all purposes
hereunder and the Trustee shall not be affected by any
notice to the contrary, nor be liable to any person or in
any way for so deeming and treating the person in whose name
any Unit shall be so registered.
A sum sufficient to pay any tax or other governmental
charge that may be imposed in connection with any such
transfer shall be paid by the registered holder of the Unit
to the Trustee.
U. Section 6.01(c) of the Standard Terms and Conditions of
Trust shall be replaced in its entirety with the following:
"(c) The Trustee shall not be responsible for or in
respect of the recitals herein, the validity or
sufficiency of this Indenture or for the due execution
hereof by the Depositor, the Portfolio Supervisor, the
Evaluator, or the FTPS Unit Servicing Agent, or for the
form, character, genuineness, sufficiency, value or
validity of any of the Securities (except that the
Trustee shall be responsible for the exercise of due
care in determining the genuineness of Securities
delivered to it pursuant to contracts for the purchase
of such Securities) or for or in respect of the
validity or sufficiency of the Units, or for any policy
of Insurance, including (without limiting the
foregoing) the terms thereof, its due execution and
delivery or the payment by the Insurer of amounts due
under, or the performance by the Insurer of its
obligation in accordance with, the Insurance, if any,
and the Trustee shall in no event assume or incur any
liability, duty or obligation to any Unit holder, the
FTPS Unit Servicing Agent or the Depositor other than
as expressly provided for herein. The Trustee shall not
be responsible for or in respect of the validity of any
signature by or on behalf of the Depositor, the
Portfolio Supervisor, the Evaluator or the FTPS Unit
Servicing Agent;"
V. Section 6.01(e) of the Standard Terms and Conditions
of Trust shall be amended to read as follows:
"(e) (1) Subject to the provisions of subparagraph
(2) of this paragraph, the Trustee may employ agents,
sub-custodians, attorneys, accountants and auditors and
shall not be answerable for the default or misconduct
of any such agents, sub-custodians, attorneys,
accountants or auditors if such agents, sub-custodians,
attorneys, accountants or auditors shall have been
selected with reasonable care. The Trustee shall be
fully protected in respect of any action under this
Indenture taken or suffered in good faith by the
Trustee in accordance with the opinion of counsel,
which may be counsel to the Depositor acceptable to the
Trustee, provided, however that this disclaimer of
liability shall not excuse the Trustee from the
responsibilities specified in subparagraph (2) below.
The fees and expenses charged by such agents, sub-
custodians, attorneys, accountants or auditors shall
constitute an expense of the Trust reimbursable from
the Interest and Principal Accounts of the Trust as set
forth in Section 6.04 hereof.
(2) To the extent permitted under the Investment
Company Act of 1940 as evidenced by an opinion of counsel to
the Depositor satisfactory to the Trustee or "no-action"
letters or exemptive orders issued by the Securities and
Exchange Commission or its staff, the Trustee may place and
maintain in the care of an Eligible Foreign Custodian (which
is employed by the Trustee as a sub-custodian as
contemplated by subparagraph (1) of this paragraph (e) and
which may be an affiliate or subsidiary of the Trustee or
any other entity in which the Trustee may have an ownership
interest) or an Eligible Securities Depository the Trust's
investments (including foreign currencies) for which the
primary market is outside the United States, and such cash
and cash equivalents in amounts reasonably necessary to
effect the Trust's transactions in such investments,
provided that:
(A) The Trustee shall indemnify the Trust and hold the
Trust harmless from and against any risk of loss of Trust
assets held with an Eligible Foreign Custodian in accordance
with the foreign custody contract.
(B) The Trustee shall exercise reasonable care,
prudence and diligence such as a person having
responsibility for the safekeeping of Trust assets would
exercise, and shall be liable to the Trust for any loss
occurring as a result of its failure to do so.
(C) The Trustee shall perform all duties assigned to
the Foreign Custody Manager by Rule 17f-5 under the
Investment Company Act of 1940 (17 CFR Section 270.17f-5),
as now in effect or as such rule may be amended in the
future ("Rule 17f-5"). The Trustee shall not delegate such
duties.
(D) The Trustee shall (i) provide the Depositor with
an analysis of the custody risks associated with maintaining
assets with an Eligible Securities Depository; (ii) monitor
the custody risks associated with maintaining assets with
the Eligible Securities Depository on a continuing basis and
promptly notify the Depositor of any material change in such
risks; and (iii) exercise reasonable care, prudence and
diligence in performing the foregoing duties. The Depositor
shall instruct the Trustee to take such action as the
Depositor deems appropriate in response to a notification by
the Trustee provided pursuant to (ii) in the preceding
sentence.
(E) The Trust's Prospectus shall contain such
disclosure regarding foreign securities and foreign custody
as is required for management investment companies by
Forms N-1A and N-2. Such Prospectus shall also contain
disclosure concerning the Depositor's responsibilities
described in (D) above.
(F) The Trustee shall maintain and keep current
written records regarding the basis for the choice or
continued use of a particular Eligible Foreign Custodian
pursuant to this subparagraph for a period of not less than
six years from the end of the fiscal year in which the Trust
was terminated, the first two years in an easily accessible
place. Such records shall be available for inspection by
Unit holders and the Securities and Exchange Commission at
the Trustee's corporate trust office during its usual
business hours."
W. Section 6.01 of the Standard Terms and Conditions of
Trust shall be amended to add the following as paragraph (l):
"(l) The Trustee may act, and may engage any
corporation, partnership or other entity affiliated
with The Bank of New York Mellon (an "Affiliated
Entity") to act, as broker or dealer to execute
transactions, including the purchase or sale of any
securities currently distributed, underwritten or
issued by any Affiliated Entity, and receive, or pay to
the Affiliated Entity, as applicable, compensation for
such services at standard commission rates, markups or
concessions."
X. Section 6.01 of the Standard Terms and Conditions of
Trust shall be amended to add the following as paragraphs (m) and
(n):
"(m) The Trust may include (i) a letter or letters of
credit meeting the requirements of Section 2.01 for the
purchase of Securities or Contract Obligations issued
by the Trustee in its individual capacity for the
account of the Depositor or (ii) Securities issued by
the Trustee, its parent, or affiliates, and the Trustee
may otherwise deal with the Depositor and the Trust
with the same rights and powers as if it were not the
Trustee hereunder.
(n) The Trustee in its individual or any other
capacity may become an owner or pledgee of, or be an
underwriter or dealer in respect of, obligations issued
by the same issuer (or an affiliate of such issuer) of
any Securities at any time held as part of the Trust
and may deal in any manner with the same or with the
issuer (or an affiliate of the issuer) with the rights
and powers as if it were not the Trustee hereunder."
Y. Paragraph (e) of Section 6.05 of the Standard Terms and
Conditions of Trust shall be amended by adding the following
sentence at the end thereof:
"The Trustee's and each successor Trustee's right to
indemnification shall survive its resignation or removal."
Z. Section 8.02(b) of the Standard Terms and Conditions of
Trust shall be replaced in its entirety with the following:
"(b) deduct from the Interest Account of such Trust or,
to the extent that funds are not available in such Account,
from the Principal Account of such Trust, and pay accrued
and unpaid fees of the Evaluator, the Portfolio Supervisor,
the FTPS Unit Servicing Agent, the Depositor and counsel in
connection with such Trust, if any;"
AA. Section 8.05 of the Standard Terms and Conditions of
Trust shall be replace in its entirety with the following:
"Section 8.05 Written Notice. Any notice, demand
direction or instruction to be given to either the Depositor,
Portfolio Supervisor, FTPS Unit Servicing Agent or Evaluator
shall be in writing and shall be duly given if mailed or
delivered to such party at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as shall be
specified by the Depositor, Portfolio Supervisor, FTPS Unit
Servicing Agent or Evaluator to the other parties hereto in
writing.
Any notice, demand, direction or instruction to be
given to the Trustee shall be in writing and shall be duly
given if mailed or delivered to the Unit Investment Trust
offices of the Trustee, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other address as shall be
specified by the Trustee to the other parties hereto in
writing.
Any notice to be given to the Unit holders shall be
duly given if mailed by first class mail with postage prepaid
to the address of such Unit holder appearing on the
registration books of the Trustee."
BB. Notwithstanding any provision to the contrary in the
Standard Terms and Conditions of Trust, the Trustee may deem and
treat the FTPS Unit Servicing Agent as the sole Unit holder of
FTPS Units for all purposes of the Indenture and shall not be
affected by any notice to the contrary.
CC. All references to The Bank of New York in the Standard
Terms and Conditions of Trust shall be replaced with "The Bank of
New York Mellon."
DD. Article IV of the Standard Terms and Conditions of Trust
shall be amended to add the following:
"Section 4.06. Liability of Portfolio Supervisor. The
Portfolio Supervisor shall be under no liability to the Unit
holders for any action taken or for refraining from the
taking of any action in good faith pursuant to this
Indenture or for errors in judgment, but shall be liable
only for its own willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of
its reckless disregard of its obligations and duties
hereunder."
EE. Notwithstanding anything to the contrary in the
Standard Terms and Conditions of Trust, the last sentence of
Section 3.01 shall be replaced with the following:
"As used herein, the Depositor's reimbursable expenses
of organizing the Trust shall include the cost of the
initial preparation and typesetting of the registration
statement, prospectuses (including preliminary
prospectuses), the indenture, and other documents relating
to the Trust, SEC and state blue sky registration fees, the
cost of the initial valuation of the portfolio and audit of
the Trust, the costs of a portfolio consultant, if any, the
initial fees and expenses of the Trustee, and legal and
other out-of-pocket expenses related thereto, but not
including the expenses incurred in the printing of
preliminary prospectuses and prospectuses, expenses incurred
in the preparation and printing of brochures and other
advertising materials and any other selling expenses."
FF. Notwithstanding anything to the contrary in the
Standard Terms and Conditions of Trust, Section 2.03 is restated
in full as follows:
"Section 2.03. Issuance of Units. The Trustee hereby
acknowledges receipt of the deposit referred to in Section
2.01. Notwithstanding any provisions of the Indenture to
the contrary, Units shall be held solely in uncertificated
form evidenced by appropriate notation in the registration
books of the Trustee, and no Unit holder shall be entitled
to the issuance of a Certificate evidencing the Units owned
by such Unit holder. The only permitted registered holders
of Units shall be (i) Depository Trust Company (or its
nominee, Cede & Co.), (ii) the FTPS Unit Servicing Agent or
(iii) Unit holders who purchase or otherwise hold their
Units through Advisor Direct ("Advisor Direct holders");
consequently, individuals who are not Advisor Direct holders
or holders of FTPS Units must hold their Units through an
entity which is a participant in Depository Trust Company.
Except as provided by the preceding provisions of this
paragraph, the rights specified in this Indenture of holders
of Units evidenced by a Certificate shall apply to holders
of Units held in uncertificated form."
GG. Notwithstanding anything to the contrary in the
Standard Terms and Conditions of Trust, Section 6.02 of the
Standard Terms is amended to add the following as the penultimate
paragraph:
"Cost-basis reporting for Unit holders who purchase or
hold their Units through the First Trust Advisor Direct
system ("Advisor Direct"). The Depositor shall maintain
information required for the reporting of the cost basis of
Advisor Direct holders (as defined in section 2.03) as may
be required from time to time by applicable law (including,
without limitation, Section 6045(g) of the Internal Revenue
Code of 1986, as amended) and regulations, and the Depositor
shall be responsible for the reporting of such information
to the Advisor Direct holders, or if reporting by the
Depositor is not permitted by applicable law or regulation
or if the Depositor and Trustee otherwise agree that the
Trustee shall report such information, the Depositor shall
provide the Trustee such information as will permit the
Trustee to provide required cost-basis information to the
Advisor Direct holders and shall provide the information at
such times and in such form as the Trustee may reasonably
request. The Depositor will be solely responsible for the
accuracy of such cost-basis information and the reporting
thereof to Advisor Direct holders as provided above. The
Trustee may rely conclusively upon the cost-basis
information provided by the Depositor with respect to
Advisor Direct holders, and shall be indemnified in
accordance with Section 6.04 of the Indenture against any
loss or liability, including any penalty or other charge
imposed by any taxing authority in respect of such cost-
basis information or reporting thereof made by the Depositor
as provided in this paragraph."
HH. For Trusts which make annualized distributions of
income, as set forth in the Prospectus for such Trusts, Section
2.01(f) is amended to add the following:
"If the Cash amount pursuant to the foregoing
calculation is negative, the Trustee shall distribute to the
Depositor the amount of such deficit, and may advance funds
to the Trust for such purpose, such advance to be repaid and
secured in the manner provided in Section 3.05 as amended
herein."
IN WITNESS WHEREOF, First Trust Portfolios L.P., The Bank of
New York Mellon, First Trust Advisors L.P. and FTP Services LLC
have each caused this Trust Agreement to be executed and the
respective corporate seal to be hereto affixed and attested (if
applicable) by authorized officers; all as of the day, month and
year first above written.
FIRST TRUST PORTFOLIOS L.P.,
Depositor
By ▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
THE BANK OF NEW YORK MELLON,
Trustee
By ▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
[SEAL]
ATTEST:
▇▇▇ ▇. ▇▇▇
Vice President
FIRST TRUST ADVISORS L.P.,
Evaluator
By ▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
FIRST TRUST ADVISORS L.P.,
Portfolio Supervisor
By ▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
FTP Services LLC,
FTPS Unit Servicing Agent
By ▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
SCHEDULE A TO TRUST AGREEMENT
Securities Initially Deposited
FT 3435
(Note: Incorporated herein and made a part hereof for the
Trust is the "Schedule of Investments" for the Trust as set forth
in the Prospectus.)