THE FIRST TRUST GNMA, SERIES 109
TRUST AGREEMENT
Dated: January 20, 2010
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 The First Trust GNMA, Series 96 and certain subsequent
Series, Effective January 20, 2005" (herein called the "Standard
Terms and Conditions of Trust"), 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 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 FOR
THE FIRST TRUST GNMA, SERIES 109
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 and shall include any securities deposited in the Fund
pursuant to Section 2.01 hereof.
(B) The number of Units in the Trust referred to in
Section 2.03 is set forth under "Summary of Essential
Information - Initial Number of Units" in the Prospectus.
(C) For the Trust the First General Record Date shall be set
forth under "Summary of Essential Information" in the Prospectus.
(D) For the Trust the First Settlement Date shall be set
forth under "Summary of Essential Information - First Settlement
Date" in the Prospectus.
(E) For the Trust the Record Dates and the Distribution
Dates shall be set forth under "Summary of Essential Information"
in the Prospectus.
(F) 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 3.17 of
the Standard Terms and Conditions of Trust shall collectively be
an annual fee in the amount of $0.0060 per Unit.
PART III
A. 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.
B. Section 1.01 of the Standard Terms and Conditions of
Trust shall be amended to include the following:
"Section 1.01(18). "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 FTP Services
LLC is acting as FTPS Unit Servicing Agent."
"Section 1.01(19). "FTPS Unit Servicing Agent" shall
mean FTP Services LLC or any successor FTPS Unit servicing
agent appointed as hereinafter provided."
C. Section 3.05. of the Standard Terms and Conditions of
Sub-Trust shall be amended to include the following at the end of
sub-section (a)-(d):
"(e) deduct from the Interest Account or, to the
extent funds are not available in such Account, from the
Principal Account and pay to the FTPS Unit Servicing Agent
the amount that it is entitled to receive pursuant to
Section 3.17."
D. Paragraphs 4 and 5 of Section 3.05 of the Standard
Terms and Conditions of Trust shall be replaced in their entirety
with the following:
The share of the balance in the Interest Account to be
distributed to a Holder of Units shall be computed as of
each Record Date, commencing with the first Record Date
subsequent to the date of the Holder's Certificate (or in
the case of Units held in uncertificated form, the date of
the Holder's initial transaction statement), and
distribution made as provided herein on or shortly after the
next following Distribution Date; provided, however, that
any distribution which would be made in respect of the
Distribution Date occurring in December shall be made not
later than December 31. In making such computation, the
Trustee shall treat as received the interest amounts
receivable by the Trust Fund on the Securities prior to the
next following Distribution Date in respect of a record date
for the Securities occurring on or before the Record Date on
which the computation is being made based on estimates of
such receivable amount provided the Trustee by the
Evaluator, determined by the Evaluator in the manner
provided in Section 5.01, on which the Trustee is authorized
conclusively to rely.
Distributions of amounts represented by the cash
balance in the Principal Account shall be computed as of
each Record Date. In making such computation, the Trustee
shall subtract the amount of any unpaid advances due the
Trustee and shall treat as received principal amounts
receivable by the Trust Fund on the Securities prior to the
next following Distribution Date in respect of a record date
for the Securities occurring on or before the Record Date on
which the computation is being made based on estimates of
such receivable amount provided the Trustee by the
Evaluator, determined by the Evaluator in the manner
provided in Section 5.01, on which the Trustee is authorized
conclusively to rely and shall take into account any amounts
identified for reinvestment pursuant to Section 3.13 hereof.
On the next following Distribution Date, or within a
reasonable period of time thereafter, the Trustee shall
distribute by mail to each Holder of Units of record on the
Record Date at his post office address such Holder's pro
rata share of the cash balance of the Principal Account as
so computed on such Record Date; provided, however, that any
distribution which would be made in respect of the
Distribution Date occurring in December shall be made not
later than December 31. In the event the amount on deposit
in the Principal Account on a Distribution Date is not
sufficient for the payment of the amount of principal to be
distributed on the basis of the aforesaid computation, the
Trustee shall advance out of its own funds and cause to be
deposited in and credited to the Principal Account such
amount as may be required to permit payment of the principal
distribution to be made on such Distribution Date. The
Trustee shall be entitled to be reimbursed, without
interest, out of the principal received by the Trust Fund,
on the first Record Date following the date of such advance
on which such reimbursement may be made without reducing the
balance in the Principal Account (calculated treating as
received principal amounts receivable by the Trust Fund on
the Securities prior to the next following Distribution Date
as provided in the first sentence of this paragraph) to an
amount less than that required for the next ensuing
principal distribution. The Trustee shall not be required
to make a distribution from the Principal Account unless the
cash balance on deposit therein available for distribution,
determined as provided in this paragraph, shall be
sufficient to distribute at least $1.00 per 1,000 Units.
E. Article III of the Standard Terms and Conditions of
Trust shall be amended to include the following section:
"Section 3.17. 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) FTP Services
LLC 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
offering period 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 3.17 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 3.17, 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 3.17.
All moneys payable to the FTPS Unit Servicing Agent pursuant
to this Section 3.17 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 3.17(d) and Section 4.05.
(g) As used in this Section 3.17, 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."
F. 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.
G. The last sentence of the first paragraph of Section 3.14
shall be replaced with the following:
"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 3.14 and FTP Services LLC
for rendering the services described in Section 3.17 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."
H. Section 4.04 of the Standard Terms and Conditions of
Trust shall be amended to include the Fund/SERV Eligible Unit
Servicing Agent 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 the 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 judgement; 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."
I. The second sentence of the first paragraph of Section
5.01 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,"
J. The fifth sentence in the first paragraph of Section
5.01 shall be replaced in its entirety with the following:
During the period in any month prior to the time when
the principal to be distributed on the next distribution
date and the current outstanding principal amount of a
Security is publicly available, the Trustee will base its
calculation of (i) cash in the process of being collected
with respect to such Security and (ii) interest accruing on
the outstanding principal amount of such Security on the
average prepayment experience (as defined in Section 4.01
hereof) with respect to such Security during the three
preceding months (or since the issuance of the Security if
such Security has been outstanding less than three months)
applied to the principal amount outstanding at the end of
the second preceding month, as determined by the Evaluator
upon which determination the Trustee is authorized
conclusively to rely.
K. 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 of the Certificates
(except for the due execution thereof by the Trustee) or for
the due execution thereof by the Depositor, 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;"
L. 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;"
M. Section 8.05 of the Standard Terms and Conditions of
Trust shall be amended to add the following paragraph immediately
preceding the last paragraph of such section:
"Any notice, demand, direction or instruction to be
given to the FTPS Unit Servicing Agent shall be in writing
and shall be duly given if mailed or delivered to the FTPS
Unit Servicing Agent at ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as shall
be specified by the FTPS Unit Servicing Agent to the other
parties hereto in writing."
N. Section 6.01 shall be amended to add the following as
paragraph (n):
"(n) 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."
O. Notwithstanding anything to the contrary in the
Standard Terms and Conditions of Trust, Section 3.14 shall be
deleted in its entirety.
P. Notwithstanding anything to the contrary in the
Standard Terms and Conditions of Trust, Section 4.03 shall be
deleted in its entirety and 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 the services described in
Section 3.17 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 moneys 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."
Q. Notwithstanding anything to the contrary in the
Standard Terms and Conditions of Trust, Section 4.03 shall be
deleted in its entirety and 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(e), 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."
R. Notwithstanding anything to the contrary in the
Standard Terms and Conditions of Trust, Section 3.05 (b) shall be
deleted in its entirety and Section 3.05(d) shall refer to
Section 4.03 rather than Section 3.14.
S. Notwithstanding anything to the contrary in the
Standard Terms and Conditions of Trust, Section 1.01(3) shall be
amended to delete the reference to Securities Evaluation Service,
Inc. and replace it with First Trust Advisors L.P.
T. Notwithstanding anything to the contrary in the
Standard Conditions of Trust, paragraph (e) of Section 6.05 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."
U. Section 6.04 of the Standard Terms and Conditions of
Trust shall be amended to add the following sentence at the end
of the First paragraph thereof:
"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."
V. 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."
W. Any notice, demand, direction or instruction to be
given to either the Depositor, Portfolio Supervisor 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 or Evaluator to
the other parties hereto in writing.
X. 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."
Y. 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."
Z. Section 2.03 of the Standard Terms and Conditions of
Trust is amended by adding the following paragraph to the end
thereof:
"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."
AA. Notwithstanding anything to the contrary in the Standard
Terms and Conditions of Trust, Section 3.15 shall be amended by
adding the following sentences at the end thereof:
"To the extent permitted by applicable law and
regulatory authorization, unpaid portions of the deferred
sales charge shall be secured by a lien on the Trust in
favor of the Depositor, provided that such lien shall be
subordinate to the lien of the Trustee granted by Section
6.04 of the Standard Terms and Conditions of Trust. To the
extent of such lien, the Trustee shall hold the assets of
the Trust for the benefit of the Depositor, provided that
the Trustee is authorized to dispositions, distributions
and payments for expenses in the ordinary course of the
administration of the trust without regard to such lien."
BB. 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(b)) 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.
IN WITNESS WHEREOF, First Trust Portfolios L.P., The Bank of
New York Mellon and 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 DEPOSITED
IN
THE FIRST TRUST, SERIES 109
(Note: Incorporated herein and made a part hereof is the
"Portfolio" for Series 109 as set forth in the
Prospectus and any other securities that may be
deposited subsequent to the Initial Date of Deposit
pursuant to this Trust Agreement.)
SCHEDULE B TO TRUST AGREEMENT
THE FIRST TRUST GNMA, SERIES 109
NOTICE OF DEPOSIT OF ADDITIONAL SECURITIES
Dated: ____________, 2010
Pursuant to Section 2.01 of the Trust Agreement dated
January 20, 2010 among First Trust Portfolios L.P., as Depositor,
The Bank of New York Mellon, as Trustee, First Trust Advisors
L.P., as Evaluator, and First Trust Advisors L.P., as Portfolio
Supervisor (the "Trust Agreement"), the Depositor hereby
certifies to the Trustee as follows:
(a) The additional securities listed in Appendix A
hereto are hereby deposited in trust and have a
substantially equal percentage relationship between the
principal amounts of the Securities of specified interest
rates and years of maturity as specified in the Trust's
prospectus dated January 20, 2010.
(b) In accordance with Section 2.03 of the Trust
Agreement, an additional ______________ Units should be
issued as a result of the deposit referred to in (a) above.
Taking into account the above Units, the total number of
Units in the Trust issued as of the date of this notice
is_____________
(c) Taking into account that Units issued in (b)
above, the fractional undivided interest in and ownership of
the Trust represented by each Unit is _________
FIRST TRUST PORTFOLIOS L.P.
By