EXHIBIT 99.1.1.1
XxXXXXXXXX, PIVEN, XXXXX
FAMILY OF TRUSTS,
INDUSTRIAL TRUST SERIES II
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement (the "Agreement") dated July 20, 1999
among XxXxxxxxxx, Piven, Xxxxx Securities, Inc., and Xxxxx & Xxxx Distributors,
Inc., as Depositors and The Chase Manhattan Bank, as Trustee, sets forth certain
provisions in full and incorporates other provisions by reference to the
document entitled "XxXxxxxxxx, Piven, Xxxxx Family of Trusts, The Pinnacle
Trust, and Subsequent Series, Trust Indenture and Agreement" dated September 23,
1998 and as amended in part by this Agreement (collectively, such documents
hereinafter called the "Indenture and Agreement"). This Agreement and the
Indenture, as incorporated by reference herein, will constitute a single
instrument.
WITNESSETH THAT:
WHEREAS, this Agreement is a Reference Trust Agreement as defined in
Section 1.1 of the Indenture, and shall be amended and modified from time to
time by an Addendum as defined in Section 1.1 (1) of the Indenture, such
Addendum setting forth any Additional Securities as defined in Section 1.1 (2)
of the Indenture;
WHEREAS, the Depositors wish to deposit Securities, and any Additional
Securities as listed on any Addendums hereto, into the Trust and issue Units,
and Additional Units as the case maybe, in respect thereof pursuant to Section
2.5 of the Indenture; and
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the Depositors and the Trustee as follows:
Part I
STANDARD TERMS AND CONDITIONS OF TRUST
Section 1. Subject to the provisions of Part II hereof, all the
provisions contained in the Indenture 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 except that the following section of the Indenture hereby are amended
as follows:
(a) Section 1.1 of the Agreement is amended to add the following
definitions:
"Distribution Agent" shall mean the Distribution Agent appointed in the
Distribution Agency Agreement, or its successor as appointed pursuant to
the Distribution Agency Agreement.
"Distribution Agency Agreement" shall mean the Distribution Agency
Agreement among the Depositors, Trustee and the Distribution Agent dated as
of July 20, 1999.
Definitions following these definitions shall be renumbered.
(b) Section 2.1 of the Agreement is amended by adding the following
paragraph after the second paragraph thereof:
"When and as directed by the Depositors, the Trustee or Distribution
Agent shall accept securities and cash to be deposited in a New Series
in exchange for Units of the New Series from persons other than
Unitholders participating in a rollover option. Notwithstanding the
fact that any Unitholder may acquire Units of the Trust by purchase or
by in-kind contribution, the Depositors will not deposit Securities
received by the Depositors on termination, or through a redemption of
Units, of a series of the Trust to a subsequent series of the Trust."
(c) Section 5.2 of the Agreement is amended by adding the following
prior to the first paragraph thereof:
"In connection with each redemption of Units, the Depositors
shall direct the Trustee to redeem Units in accordance with the
procedures set forth in either (a) or (b) of this Section 5.2. (a)
Trustee."
(d) Section 5.2 of the Agreement is further amended by adding the
following three paragraphs after the ninth paragraph of such Section 5.2.:
"(b) Distribution Agent-On any Business Day on which any Unit or
Units are tendered for redemption (the "Redemption Day") by a
Unitholder or his duly authorized attorney to the Trustee at its unit
investment trust office in the City of New York not later than the
Evaluation Time, such Units shall be redeemed by the Trustee on that
Redemption Day. Units in uncertificated form shall be tendered by
means of an appropriate request for redemption in form approved by the
Trustee. Unitholders must sign exactly as their name appears on the
register with the signature guaranteed by a participant in a signature
guarantee program acceptable to the Trustee, or in such other manner
as may be acceptable to the Trustee. The Trustee may also require
additional documents such as, but not limited to, trust instruments,
certificates of death, appointments as executor or administrator or
certificates of corporate authority. Subject to payment by such
Unitholder of any tax or other governmental charges which may be
imposed thereon, such redemption
-2-
is to be made by distribution to the Distribution Agent on behalf of
the redeeming Unitholder on the Redemption Day of (i) the Unitholder's
pro rata portion as of the Redemption Day of the Securities in the
Trust as designated by the Depositor and (ii) the Unitholder's pro
rata portion of the cash in the Trust as of the Redemption Day (herein
called the "Redemption Distribution"). The Distribution Agent will
dispose of such assets in accordance with the provisions of the
Distribution Agent Agreement. Fractional interests in shares
distributed to the Distribution Agent, which are not included in the
Redemption Distribution, shall be held in trust by the Distribution
Agent, which is hereby designated a subcustodian of the Trustee with
respect to such fractional interests, and shall be subject to such
disposition as the Depositor shall direct. Units received for
redemption by the Trustee on any date after the Evaluation Time will
be held by the Trustee until the next Business Day on which the New
York Stock Exchange is open for trading and will be deemed to have
been tendered on such day for redemption at the Redemption Price
computed on that day. Units tendered for redemption by the Depositors
on any Business Day shall be deemed to have been tendered before the
Evaluation Time on such Business Day provided that the Depositors
advise the Trustee before the later of the Trustee's close of business
and 5:00 pm New York City time. By such advice, the Depositors will be
deemed to certify that all Units so tendered were either (a) tendered
to the Depositors or to a retail dealer between the Evaluation Time on
the preceding Business Day and the Evaluation Time on such Business
Day or (b) acquired previously by the Depositors but which the
Depositors determined to redeem prior to the Evaluation Time on such
Business Day.
The portion of the Redemption Distribution which represents the
Unitholder's interest in the Income Account shall be withdrawn from
the Income Account to the extent available. The balance paid on any
redemption, including dividends receivable on stocks trading ex
dividend, if any, shall be withdrawn from the Principal Account to the
extent that funds are available for such purpose. If such available
balance shall be insufficient, the Trustee shall advance funds
sufficient to pay such amount to the Unitholder and shall be entitled
to reimbursement of such advance upon the deposit of additional monies
in the Income Account or Principal Account, whichever happens first.
Should any amounts so advanced with respect to declared but unreceived
dividends prove uncollectible because of default in payment of such
dividends, the Trustee shall have the right immediately to liquidate
Securities in amount sufficient to reimburse itself for such advances,
without interest. In the event that funds are withdrawn from the
Principal Account for payment of any portion of the Redemption
Distribution representing dividends receivable on stocks trading ex
dividend, the Principal Account shall be reimbursed when sufficient
funds are next available in the Income Account for such funds so
applied.
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Unitholders requesting or required to receive a cash distribution
shall receive such distribution in accordance with the applicable
provisions of the Distribution Agency Agreement."
(e) Section 6.2 of the Agreement is amended by adding the following at
the end of the second paragraph thereof:
"The Trustee shall maintain and provide, upon the request of a
Unitholder or the Depositors, the Unitholders or the Unitholder's
designated representative with the cost basis of the Securities
represented by the Unitholder's Units."
(f) Section 9.2 of the Agreement is amended by deleting the fourth
paragraph thereof and by adding the following paragraph in its place:
"In the event that the Trust terminates on the Termination Date,
the Trustee shall, not less than 30 days prior to the Termination
Date, send a written notice to each Unitholder. Such notice shall
allow each Unitholder of record, to elect to redeem his Units at the
net asset value on the Termination Date and to receive, in partial
payment of the Redemption Price per Unit, an in-kind distribution of
such Unitholder's pro rata share of the Securities, to the extent of
whole shares. The Trustee will honor duly executed requests for such
in-kind distribution received by the close of business on the
Termination Date. Redemption of the Units of Unitholders electing
such in-kind distribution shall be made on the third business day
following the Termination Date and shall consist of (1) such
Unitholder's pro rata share of Securities (valued as of the
Termination Date) to the extent of whole shares and (2) cash equal to
the balance of such Unitholder's Redemption Price. Unitholders who do
not effectively request an in-kind distribution shall receive their
distribution upon termination in cash. The Trustee shall distribute
the Unitholder's Securities to the account of the Unitholder's bank or
broker-dealer at Depositary Trust Company. An in-kind distribution
shall be reduced by customary transfer and registration charges
incurred by the Trustee."
(g) Section 9.2 of the Agreement is further amended by deleting the
last paragraph thereof and by adding the following paragraph in its place:
"Upon the Depositors' request, the Trustee will include in the
written notice to be sent to Unitholders referred to in the fourth
paragraph of this section a form of election whereby Unitholders may
express interest in investing their terminating distribution in units
of another series of the XxXxxxxxxx, Piven, Xxxxx Family of Trusts
(the "New Series"). The Trustee will inform the Depositors of all
Unitholders who, within the time period specified in such notice,
express such interest. The Depositors will provide to such
Unitholders applicable sales material with respect to the New Series
and a form, acceptable to the Trustee, whereby a
-4-
Unitholder may appoint the Distribution Agent the Unitholder's agent
to apply the Unitholder's distribution for the acquisition of a unit
or units of the New Series (a "Rollover"). Such form will specify,
among other things, the time by which it must be returned to the
Trustee in order to be effective and the manner in which such purchase
shall be made. Redemption of the Units of the Unitholders electing
such Rollover shall be made by distribution to the Distribution Agent
on behalf of redeeming Unitholder on a date on or prior to the
Termination Date selected by the Depositors and specified in the
notice (the "Rollover Date") and shall consist of (1) such
Unitholder's pro rata share of Securities (valued as of the Rollover
Date) and (2) cash equal to the balance of the Unitholder's Redemption
Price. The Distribution Agent will dispose of such assets in
accordance with the provisions of the Distribution Agency Agreement.
In the event that the Depositors determine that an in-kind deposit
into the New Series pursuant to Section 1.02 of the Distribution
Agency Agreement will not be permitted, the Units owned by the
Unitholders electing investment in a New Series will be redeemed
pursuant to Section 5.2(a) and the above-described notice will include
a form, acceptable to the Trustee, whereby a Unitholder may appoint
the Trustee the Unitholder's agent to apply the Unitholder's cash
distribution for the purchase of a unit or units of the New Series.
This paragraph shall not obligate the Depositors to create any New
Series or to provide any such investment election."
Section 2. This Reference Trust Agreement may be amended and modified
by Addendums, attached hereto, evidencing the purchase of Additional Securities
which have been deposited to effect an increase over the number of Units
initially specified in Part II of this Reference Trust Agreement ("Additional
Closings"). The Depositors and Trustee hereby agree that their respective
representations, agreements and certifications contained in the Closing
Memorandum dated July 20, 1999, relating to the initial deposit of Securities
continue as if such representations, agreements and certifications were made on
the date of such Additional Closings and with respect to the deposits made
therewith, except as such representations, agreements and certifications relate
to their respective By-Laws and as to which they each represent that their has
been no amendment affecting their respective abilities to perform their
respective obligations under the Indenture.
Part II
SPECIAL TERMS AND CONDITIONS OF TRUST
Section 1. The following special terms and conditions are hereby
agreed to:
(a) The Securities (including Contract Securities) listed in the
Prospectus relating to this series of XxXxxxxxxx, Piven, Xxxxx Family of Trusts
(the "Prospectus") have been
-5-
deposited in the Trust under this Agreement (see "Portfolio" in Part A of the
Prospectus which for purposes of this Indenture and Agreement is the Schedule of
Securities or Schedule A).
(b) The number of Units delivered by the Trustee in exchange for the
Securities referred to in Section 2.3 is 15,749.
(c) For the purposes of the definition of Unit in item (24) of Section
1.1, the fractional undivided interest in and ownership of the Trust initially
is 1/15,749 as of the date hereof.
(d) The term Record Date shall mean the fifteenth day of June and
December commencing on December 15, 1999.
(e) The term Distribution Date shall mean the last business day of
June and December commencing on December 31, 1999.
(f) The First Settlement Date shall mean July 23, 1999.
(g) For purposes of Section 6.1(g), the liquidation amount is hereby
specified to be 40% of the aggregate value of the Securities as of the last
deposit of Additional Securities.
(h) For purposes of Section 6.4, the Trustee shall be paid per annum
an amount computed according to the following schedule, determined on the basis
of the number of Units outstanding as of the Record Date preceding the Record
Date on which the compensation is to be paid, provided, however, that with
respect to the period prior to the first Record Date, the Trustee's compensation
shall be computed at $.86 per 100 Units:
rate per 100 units number of Units outstanding
$0.86 5,000,000 or less
$0.80 5,000,001 - 10,000,000
$0.74 10,000,001 - 20,000,000
$0.62 20,000,001 or more
(i) For purposes of Section 7.4, the Depositors' maximum annual
supervisory fee is hereby specified to be $.25 per 100 Units outstanding.
(j) The Termination Date shall be October 18, 2000 or the earlier
disposition of the last Security in the Trust.
(k) The fiscal year for the Trust shall end on June 30 of each year.
IN WITNESS WHEREOF, the parties hereto have caused this Reference
Trust Agreement to be duly executed on the date first above written.
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XxXXXXXXXX, XXXXX, XXXXX SECURITIES, INC.
Depositor
By: /s/ Xxxxx X. Xxxxx
-------------------------------
President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 15th day of July, 1999, before me personally appeared Xxxxx X.
Xxxxx, to me known, who being by me duly sworn, said that he is the President of
XxXxxxxxxx, Piven, Xxxxx Securities, Inc., the Depositor, one of the
corporations described in and which executed the foregoing instrument, and that
he signed his name thereto by authority of the Board of Directors of said
corporation.
/s/ Xxxxx Xxxxx
----------------------------------
Notary Public
XXXXX XXXXX
Notary Public, State of New York
No. 02V05019906
Qualified in Bronx County
Commission Expires November 1, 1999
XXXXX & XXXX DISTRIBUTORS, INC.
Depositor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Executive Vice President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 20th day of July, 1999, before me personally appeared Xxxxx X.
XxXxxxx, to me known, who being by me duly sworn, said that he is Executive Vice
President of the Depositor, one of the corporations described in and which
executed the foregoing instrument, and that he signed his name thereto by
authority of the Board of Directors of said corporation.
/s/ Xxxxxx Xxxxxxxx
----------------------------------
Notary Public
XXXXXX XXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in New York County
Term Expires 8/31/2000
THE CHASE MANHATTAN BANK
Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Vice President
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On this 15th day of July, 1999, before me personally appeared Xxxxxxx
X. Xxxxxxx, to me known, who being by me duly sworn, said that (s)he is an
Authorized Signator of The Chase Manhattan Bank, one of the corporations
described in and which executed the foregoing instrument; that (s)he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation and that he/she signed his/her name thereto by like authority.
/s/ Ada Xxxx Xxxx
------------------------------
Notary Public
ADA XXXX XXXX
NOTARY PUBLIC, State of New York
No. 4864106
Qualified in Xxx Xxxx Xxxxxx
Xxxxxxxxxx Xxxxxxx 0-00-0000
XxXXXXXXXX, XXXXX, XXXXX
FAMILY OF TRUSTS,
TECHNOLOGY TRUST SERIES II
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement (the "Agreement") dated July 20, 1999
among XxXxxxxxxx, Piven, Xxxxx Securities, Inc., and Xxxxx & Tang Distributors,
Inc., as Depositors and The Chase Manhattan Bank, as Trustee, sets forth certain
provisions in full and incorporates other provisions by reference to the
document entitled "XxXxxxxxxx, Piven, Xxxxx Family of Trusts, The Pinnacle
Trust, and Subsequent Series, Trust Indenture and Agreement" dated September 23,
1998 and as amended in part by this Agreement (collectively, such documents
hereinafter called the "Indenture and Agreement"). This Agreement and the
Indenture, as incorporated by reference herein, will constitute a single
instrument.
WITNESSETH THAT:
WHEREAS, this Agreement is a Reference Trust Agreement as defined in
Section 1.1 of the Indenture, and shall be amended and modified from time to
time by an Addendum as defined in Section 1.1 (1) of the Indenture, such
Addendum setting forth any Additional Securities as defined in Section 1.1 (2)
of the Indenture;
WHEREAS, the Depositors wish to deposit Securities, and any Additional
Securities as listed on any Addendums hereto, into the Trust and issue Units,
and Additional Units as the case maybe, in respect thereof pursuant to Section
2.5 of the Indenture; and
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the Depositors and the Trustee as follows:
Part I
STANDARD TERMS AND CONDITIONS OF TRUST
Section 1. Subject to the provisions of Part II hereof, all the
provisions contained in the Indenture 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 except that the following sections of the Indenture hereby are
amended as follows:
(a) Section 1.1 of the Agreement is amended to add the following
definitions:
"Distribution Agent" shall mean the Distribution Agent appointed in the
Distribution Agency Agreement, or its successor as appointed pursuant to
the Distribution Agency Agreement.
"Distribution Agency Agreement" shall mean the Distribution Agency
Agreement among the Depositors, Trustee and the Distribution Agent dated as
of July 20, 1999.
Definitions following these definitions shall be renumbered.
(b) Section 2.1 of the Agreement is amended by adding the following
paragraph after the second paragraph thereof:
"When and as directed by the Depositors, the Trustee or Distribution
Agent shall accept securities and cash to be deposited in a New Series
in exchange for Units of the New Series from persons other than
Unitholders participating in a rollover option. Notwithstanding the
fact that any Unitholder may acquire Units of the Trust by purchase or
by in-kind contribution, the Depositors will not deposit Securities
received by the Depositors on termination, or through a redemption of
Units, of a series of the Trust to a subsequent series of the Trust."
(c) Section 5.2 of the Agreement is amended by adding the following
prior to the first paragraph thereof:
"In connection with each redemption of Units, the Depositors
shall direct the Trustee to redeem Units in accordance with the
procedures set forth in either (a) or (b) of this Section 5.2. (a)
Trustee."
(d) Section 5.2 of the Agreement is further amended by adding the
following three paragraphs after the ninth paragraph of such Section 5.2.:
"(b) Distribution Agent-On any Business Day on which any Unit or
Units are tendered for redemption (the "Redemption Day") by a
Unitholder or his duly authorized attorney to the Trustee at its unit
investment trust office in the City of New York not later than the
Evaluation Time, such Units shall be redeemed by the Trustee on that
Redemption Day. Units in uncertificated form shall be tendered by
means of an appropriate request for redemption in form approved by the
Trustee. Unitholders must sign exactly as their name appears on the
register with the signature guaranteed by a participant in a signature
guarantee program acceptable to the Trustee, or in such other manner
as may be acceptable to the Trustee. The Trustee may also require
additional documents such as, but not limited to, trust instruments,
certificates of death, appointments as executor or administrator or
certificates of corporate authority. Subject to payment by such
Unitholder of any tax or other governmental charges which may be
imposed thereon, such redemption
-2-
is to be made by distribution to the Distribution Agent on behalf of
the redeeming Unitholder on the Redemption Day of (i) the Unitholder's
pro rata portion as of the Redemption Day of the Securities in the
Trust as designated by the Depositor and (ii) the Unitholder's pro
rata portion of the cash in the Trust as of the Redemption Day (herein
called the "Redemption Distribution"). The Distribution Agent will
dispose of such assets in accordance with the provisions of the
Distribution Agent Agreement. Fractional interests in shares
distributed to the Distribution Agent, which are not included in the
Redemption Distribution, shall be held in trust by the Distribution
Agent, which is hereby designated a subcustodian of the Trustee with
respect to such fractional interests, and shall be subject to such
disposition as the Depositor shall direct. Units received for
redemption by the Trustee on any date after the Evaluation Time will
be held by the Trustee until the next Business Day on which the New
York Stock Exchange is open for trading and will be deemed to have
been tendered on such day for redemption at the Redemption Price
computed on that day. Units tendered for redemption by the Depositors
on any Business Day shall be deemed to have been tendered before the
Evaluation Time on such Business Day provided that the Depositors
advise the Trustee before the later of the Trustee's close of business
and 5:00 pm New York City time. By such advice, the Depositors will be
deemed to certify that all Units so tendered were either (a) tendered
to the Depositors or to a retail dealer between the Evaluation Time on
the preceding Business Day and the Evaluation Time on such Business
Day or (b) acquired previously by the Depositors but which the
Depositors determined to redeem prior to the Evaluation Time on such
Business Day.
The portion of the Redemption Distribution which represents the
Unitholder's interest in the Income Account shall be withdrawn from
the Income Account to the extent available. The balance paid on any
redemption, including dividends receivable on stocks trading ex
dividend, if any, shall be withdrawn from the Principal Account to the
extent that funds are available for such purpose. If such available
balance shall be insufficient, the Trustee shall advance funds
sufficient to pay such amount to the Unitholder and shall be entitled
to reimbursement of such advance upon the deposit of additional monies
in the Income Account or Principal Account, whichever happens first.
Should any amounts so advanced with respect to declared but unreceived
dividends prove uncollectible because of default in payment of such
dividends, the Trustee shall have the right immediately to liquidate
Securities in amount sufficient to reimburse itself for such advances,
without interest. In the event that funds are withdrawn from the
Principal Account for payment of any portion of the Redemption
Distribution representing dividends receivable on stocks trading ex
dividend, the Principal Account shall be reimbursed when sufficient
funds are next available in the Income Account for such funds so
applied.
-3-
Unitholders requesting or required to receive a cash distribution
shall receive such distribution in accordance with the applicable
provisions of the Distribution Agency Agreement."
(e) Section 6.2 of the Agreement is amended by adding the following at
the end of the second paragraph thereof:
"The Trustee shall maintain and provide, upon the request of a
Unitholder or the Depositors, the Unitholders or the Unitholder's
designated representative with the cost basis of the Securities
represented by the Unitholder's Units."
(f) Section 9.2 of the Agreement is amended by deleting the fourth
paragraph thereof and by adding the following paragraph in its place:
"In the event that the Trust terminates on the Termination Date,
the Trustee shall, not less than 30 days prior to the Termination
Date, send a written notice to each Unitholder. Such notice shall
allow each Unitholder of record, to elect to redeem his Units at the
net asset value on the Termination Date and to receive, in partial
payment of the Redemption Price per Unit, an in-kind distribution of
such Unitholder's pro rata share of the Securities, to the extent of
whole shares. The Trustee will honor duly executed requests for such
in-kind distribution received by the close of business on the
Termination Date. Redemption of the Units of Unitholders electing
such in-kind distribution shall be made on the third business day
following the Termination Date and shall consist of (1) such
Unitholder's pro rata share of Securities (valued as of the
Termination Date) to the extent of whole shares and (2) cash equal to
the balance of such Unitholder's Redemption Price. Unitholders who do
not effectively request an in-kind distribution shall receive their
distribution upon termination in cash. The Trustee shall distribute
the Unitholder's Securities to the account of the Unitholder's bank or
broker-dealer at Depositary Trust Company. An in-kind distribution
shall be reduced by customary transfer and registration charges
incurred by the Trustee."
(g) Section 9.2 of the Agreement is further amended by deleting the
last paragraph thereof and by adding the following paragraph in its place:
"Upon the Depositors' request, the Trustee will include in the
written notice to be sent to Unitholders referred to in the fourth
paragraph of this section a form of election whereby Unitholders may
express interest in investing their terminating distribution in units
of another series of the XxXxxxxxxx, Piven, Xxxxx Family of Trusts
(the "New Series"). The Trustee will inform the Depositors of all
Unitholders who, within the time period specified in such notice,
express such interest. The Depositors will provide to such
Unitholders applicable sales material with respect to the New Series
and a form, acceptable to the Trustee, whereby a
-4-
Unitholder may appoint the Distribution Agent the Unitholder's agent
to apply the Unitholder's distribution for the acquisition of a unit
or units of the New Series (a "Rollover"). Such form will specify,
among other things, the time by which it must be returned to the
Trustee in order to be effective and the manner in which such purchase
shall be made. Redemption of the Units of the Unitholders electing
such Rollover shall be made by distribution to the Distribution Agent
on behalf of redeeming Unitholder on a date on or prior to the
Termination Date selected by the Depositors and specified in the
notice (the "Rollover Date") and shall consist of (1) such
Unitholder's pro rata share of Securities (valued as of the Rollover
Date) and (2) cash equal to the balance of the Unitholder's Redemption
Price. The Distribution Agent will dispose of such assets in
accordance with the provisions of the Distribution Agency Agreement.
In the event that the Depositors determine that an in-kind deposit
into the New Series pursuant to Section 1.02 of the Distribution
Agency Agreement will not be permitted, the Units owned by the
Unitholders electing investment in a New Series will be redeemed
pursuant to Section 5.2(a) and the above-described notice will include
a form, acceptable to the Trustee, whereby a Unitholder may appoint
the Trustee the Unitholder's agent to apply the Unitholder's cash
distribution for the purchase of a unit or units of the New Series.
This paragraph shall not obligate the Depositors to create any New
Series or to provide any such investment election."
Section 2. This Reference Trust Agreement may be amended and modified
by Addendums, attached hereto, evidencing the purchase of Additional Securities
which have been deposited to effect an increase over the number of Units
initially specified in Part II of this Reference Trust Agreement ("Additional
Closings"). The Depositors and Trustee hereby agree that their respective
representations, agreements and certifications contained in the Closing
Memorandum dated July 20, 1999, relating to the initial deposit of Securities
continue as if such representations, agreements and certifications were made on
the date of such Additional Closings and with respect to the deposits made
therewith, except as such representations, agreements and certifications relate
to their respective By-Laws and as to which they each represent that their has
been no amendment affecting their respective abilities to perform their
respective obligations under the Indenture.
Part II
SPECIAL TERMS AND CONDITIONS OF TRUST
Section 1. The following special terms and conditions are hereby
agreed to:
(a) The Securities (including Contract Securities) listed in the
Prospectus relating to this series of XxXxxxxxxx, Piven, Xxxxx Family of Trusts
(the "Prospectus") have been
-5-
deposited in the Trust under this Agreement (see "Portfolio" in Part A of the
Prospectus which for purposes of this Indenture and Agreement is the Schedule of
Securities or Schedule A).
(b) The number of Units delivered by the Trustee in exchange for the
Securities referred to in Section 2.3 is 15,715.
(c) For the purposes of the definition of Unit in item (24) of Section
1.1, the fractional undivided interest in and ownership of the Trust initially
is 1/15,715 as of the date hereof.
(d) The term Record Date shall mean the fifteenth day of June and
December commencing on December 15, 1999.
(e) The term Distribution Date shall mean the last business day of
June and December commencing on December 31, 1999.
(f) The First Settlement Date shall mean July 23, 1999.
(g) For purposes of Section 6.1(g), the liquidation amount is hereby
specified to be 40% of the aggregate value of the Securities as of the last
deposit of Additional Securities.
(h) For purposes of Section 6.4, the Trustee shall be paid per annum
an amount computed according to the following schedule, determined on the basis
of the number of Units outstanding as of the Record Date preceding the Record
Date on which the compensation is to be paid, provided, however, that with
respect to the period prior to the first Record Date, the Trustee's compensation
shall be computed at $.86 per 100 Units:
rate per 100 units number of Units outstanding
$0.86 5,000,000 or less
$0.80 5,000,001 - 10,000,000
$0.74 10,000,001 - 20,000,000
$0.62 20,000,001 or more
(i) For purposes of Section 7.4, the Depositors' maximum annual
supervisory fee is hereby specified to be $.25 per 100 Units outstanding.
(j) The Termination Date shall be October 18, 2000 or the earlier
disposition of the last Security in the Trust.
(k) The fiscal year for the Trust shall end on June 30 of each year.
IN WITNESS WHEREOF, the parties hereto have caused this Reference
Trust Agreement to be duly executed on the date first above written.
-0-
XxXXXXXXXX, XXXXX, XXXXX SECURITIES, INC.
Depositor
By: /s/ Xxxxx X. Xxxxx
------------------------------------
President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 15th day of July, 1999, before me personally appeared Xxxxx X.
Xxxxx, to me known, who being by me duly sworn, said that he is the President of
XxXxxxxxxx, Piven, Xxxxx Securities, Inc., the Depositor, one of the
corporations described in and which executed the foregoing instrument, and that
he signed his name thereto by authority of the Board of Directors of said
corporation.
/s/ Xxxxx Xxxxx
----------------------------------
Notary Public
XXXXX XXXXX
Notary Public, State of New York
No. 02V05019906
Qualified in Bronx County
Commission Expires November 1, 1999
XXXXX & XXXX DISTRIBUTORS, INC.
Depositor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Executive Vice President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 20th day of July, 1999, before me personally appeared Xxxxx X.
XxXxxxx, to me known, who being by me duly sworn, said that he is Executive Vice
President of the Depositor, one of the corporations described in and which
executed the foregoing instrument, and that he signed his name thereto by
authority of the Board of Directors of said corporation.
/s/ Xxxxxx Xxxxxxxx
----------------------------------
Notary Public
XXXXXX XXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in New York County
Term Expires 8/31/2000
THE CHASE MANHATTAN BANK
Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Vice President
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On this 15th day of July, 1999, before me personally appeared Xxxxxxx
X. Xxxxxxx, to me known, who being by me duly sworn, said that (s)he is an
Authorized Signator of The Chase Manhattan Bank, one of the corporations
described in and which executed the foregoing instrument; that (s)he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation and that he/she signed his/her name thereto by like authority.
/s/ Ada Xxxx Xxxx
------------------------------
Notary Public
ADA XXXX XXXX
NOTARY PUBLIC, State of New York
No. 4864106
Qualified in Xxx Xxxx Xxxxxx
Xxxxxxxxxx Xxxxxxx 0-00-0000
XxXXXXXXXX, XXXXX,XXXXX
FAMILY OF TRUSTS,
PINNACLE TRUST LARGE CAP SERIES III
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement (the "Agreement") dated July 20, 1999
among XxXxxxxxxx, Piven, Xxxxx Securities, Inc., and Xxxxx & Tang Distributors,
Inc., as Depositors and The Chase Manhattan Bank, as Trustee, sets forth certain
provisions in full and incorporates other provisions by reference to the
document entitled "XxXxxxxxxx, Piven, Xxxxx Family of Trusts, The Pinnacle
Trust, and Subsequent Series, Trust Indenture and Agreement" dated September 23,
1998 and as amended in part by this Agreement (collectively, such documents
hereinafter called the "Indenture and Agreement"). This Agreement and the
Indenture, as incorporated by reference herein, will constitute a single
instrument.
WITNESSETH THAT:
WHEREAS, this Agreement is a Reference Trust Agreement as defined in
Section 1.1 of the Indenture, and shall be amended and modified from time to
time by an Addendum as defined in Section 1.1 (1) of the Indenture, such
Addendum setting forth any Additional Securities as defined in Section 1.1 (2)
of the Indenture;
WHEREAS, the Depositors wish to deposit Securities, and any Additional
Securities as listed on any Addendums hereto, into the Trust and issue Units,
and Additional Units as the case maybe, in respect thereof pursuant to Section
2.5 of the Indenture; and
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the Depositors and the Trustee as follows:
Part I
STANDARD TERMS AND CONDITIONS OF TRUST
Section 1. Subject to the provisions of Part II hereof, all the
provisions contained in the Indenture 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 except that the following section of the Indenture hereby are amended
as follows:
(a) Section 1.1 of the Agreement is amended to add the following
definitions:
"Distribution Agent" shall mean the Distribution Agent appointed in the
Distribution Agency Agreement, or its successor as appointed pursuant to
the Distribution Agency Agreement.
"Distribution Agency Agreement" shall mean the Distribution Agency
Agreement among the Depositors, Trustee and the Distribution Agent dated as
of July 20, 1999.
Definitions following these definitions shall be renumbered.
(b) Section 2.1 of the Agreement is amended by adding the following
paragraph after the second paragraph thereof:
"When and as directed by the Depositors, the Trustee or Distribution
Agent shall accept securities and cash to be deposited in a New Series
in exchange for Units of the New Series from persons other than
Unitholders participating in a rollover option. Notwithstanding the
fact that any Unitholder may acquire Units of the Trust by purchase or
by in-kind contribution, the Depositors will not deposit Securities
received by the Depositors on termination, or through a redemption of
Units, of a series of the Trust to a subsequent series of the Trust."
(c) Section 5.2 of the Agreement is amended by adding the following
prior to the first paragraph thereof:
"In connection with each redemption of Units, the Depositors
shall direct the Trustee to redeem Units in accordance with the
procedures set forth in either (a) or (b) of this Section 5.2. (a)
Trustee."
(d) Section 5.2 of the Agreement is further amended by adding the
following three paragraphs after the ninth paragraph of such Section 5.2.:
"(b) Distribution Agent-On any Business Day on which any Unit or
Units are tendered for redemption (the "Redemption Day") by a
Unitholder or his duly authorized attorney to the Trustee at its unit
investment trust office in the City of New York not later than the
Evaluation Time, such Units shall be redeemed by the Trustee on that
Redemption Day. Units in uncertificated form shall be tendered by
means of an appropriate request for redemption in form approved by the
Trustee. Unitholders must sign exactly as their name appears on the
register with the signature guaranteed by a participant in a signature
guarantee program acceptable to the Trustee, or in such other manner
as may be acceptable to the Trustee. The Trustee may also require
additional documents such as, but not limited to, trust instruments,
certificates of death, appointments as executor or administrator or
certificates of corporate authority. Subject to payment by such
Unitholder of any tax or other governmental charges which may be
imposed thereon, such redemption
-2-
is to be made by distribution to the Distribution Agent on behalf of
the redeeming Unitholder on the Redemption Day of (i) the Unitholder's
pro rata portion as of the Redemption Day of the Securities in the
Trust as designated by the Depositor and (ii) the Unitholder's pro
rata portion of the cash in the Trust as of the Redemption Day (herein
called the "Redemption Distribution"). The Distribution Agent will
dispose of such assets in accordance with the provisions of the
Distribution Agent Agreement. Fractional interests in shares
distributed to the Distribution Agent, which are not included in the
Redemption Distribution, shall be held in trust by the Distribution
Agent, which is hereby designated a subcustodian of the Trustee with
respect to such fractional interests, and shall be subject to such
disposition as the Depositor shall direct. Units received for
redemption by the Trustee on any date after the Evaluation Time will
be held by the Trustee until the next Business Day on which the New
York Stock Exchange is open for trading and will be deemed to have
been tendered on such day for redemption at the Redemption Price
computed on that day. Units tendered for redemption by the Depositors
on any Business Day shall be deemed to have been tendered before the
Evaluation Time on such Business Day provided that the Depositors
advise the Trustee before the later of the Trustee's close of business
and 5:00 pm New York City time. By such advice, the Depositors will be
deemed to certify that all Units so tendered were either (a) tendered
to the Depositors or to a retail dealer between the Evaluation Time on
the preceding Business Day and the Evaluation Time on such Business
Day or (b) acquired previously by the Depositors but which the
Depositors determined to redeem prior to the Evaluation Time on such
Business Day.
The portion of the Redemption Distribution which represents the
Unitholder's interest in the Income Account shall be withdrawn from
the Income Account to the extent available. The balance paid on any
redemption, including dividends receivable on stocks trading ex
dividend, if any, shall be withdrawn from the Principal Account to the
extent that funds are available for such purpose. If such available
balance shall be insufficient, the Trustee shall advance funds
sufficient to pay such amount to the Unitholder and shall be entitled
to reimbursement of such advance upon the deposit of additional monies
in the Income Account or Principal Account, whichever happens first.
Should any amounts so advanced with respect to declared but unreceived
dividends prove uncollectible because of default in payment of such
dividends, the Trustee shall have the right immediately to liquidate
Securities in amount sufficient to reimburse itself for such advances,
without interest. In the event that funds are withdrawn from the
Principal Account for payment of any portion of the Redemption
Distribution representing dividends receivable on stocks trading ex
dividend, the Principal Account shall be reimbursed when sufficient
funds are next available in the Income Account for such funds so
applied.
-3-
Unitholders requesting or required to receive a cash distribution
shall receive such distribution in accordance with the applicable
provisions of the Distribution Agency Agreement."
(e) Section 6.2 of the Agreement is amended by adding the following at
the end of the second paragraph thereof:
"The Trustee shall maintain and provide, upon the request of a
Unitholder or the Depositors, the Unitholders or the Unitholder's
designated representative with the cost basis of the Securities
represented by the Unitholder's Units."
(f) Section 9.2 of the Agreement is amended by deleting the fourth
paragraph thereof and by adding the following paragraph in its place:
"In the event that the Trust terminates on the Termination Date,
the Trustee shall, not less than 30 days prior to the Termination
Date, send a written notice to each Unitholder. Such notice shall
allow each Unitholder of record, to elect to redeem his Units at the
net asset value on the Termination Date and to receive, in partial
payment of the Redemption Price per Unit, an in-kind distribution of
such Unitholder's pro rata share of the Securities, to the extent of
whole shares. The Trustee will honor duly executed requests for such
in-kind distribution received by the close of business on the
Termination Date. Redemption of the Units of Unitholders electing
such in-kind distribution shall be made on the third business day
following the Termination Date and shall consist of (1) such
Unitholder's pro rata share of Securities (valued as of the
Termination Date) to the extent of whole shares and (2) cash equal to
the balance of such Unitholder's Redemption Price. Unitholders who do
not effectively request an in-kind distribution shall receive their
distribution upon termination in cash. The Trustee shall distribute
the Unitholder's Securities to the account of the Unitholder's bank or
broker-dealer at Depositary Trust Company. An in-kind distribution
shall be reduced by customary transfer and registration charges
incurred by the Trustee."
(g) Section 9.2 of the Agreement is further amended by deleting the
last paragraph thereof and by adding the following paragraph in its place:
"Upon the Depositors' request, the Trustee will include in the
written notice to be sent to Unitholders referred to in the fourth
paragraph of this section a form of election whereby Unitholders may
express interest in investing their terminating distribution in units
of another series of the XxXxxxxxxx, Piven, Xxxxx Family of Trusts
(the "New Series"). The Trustee will inform the Depositors of all
Unitholders who, within the time period specified in such notice,
express such interest. The Depositors will provide to such
Unitholders applicable sales material with respect to the New Series
and a form, acceptable to the Trustee, whereby a
-4-
Unitholder may appoint the Distribution Agent the Unitholder's agent
to apply the Unitholder's distribution for the acquisition of a unit
or units of the New Series (a "Rollover"). Such form will specify,
among other things, the time by which it must be returned to the
Trustee in order to be effective and the manner in which such purchase
shall be made. Redemption of the Units of the Unitholders electing
such Rollover shall be made by distribution to the Distribution Agent
on behalf of redeeming Unitholder on a date on or prior to the
Termination Date selected by the Depositors and specified in the
notice (the "Rollover Date") and shall consist of (1) such
Unitholder's pro rata share of Securities (valued as of the Rollover
Date) and (2) cash equal to the balance of the Unitholder's Redemption
Price. The Distribution Agent will dispose of such assets in
accordance with the provisions of the Distribution Agency Agreement.
In the event that the Depositors determine that an in-kind deposit
into the New Series pursuant to Section 1.02 of the Distribution
Agency Agreement will not be permitted, the Units owned by the
Unitholders electing investment in a New Series will be redeemed
pursuant to Section 5.2(a) and the above-described notice will include
a form, acceptable to the Trustee, whereby a Unitholder may appoint
the Trustee the Unitholder's agent to apply the Unitholder's cash
distribution for the purchase of a unit or units of the New Series.
This paragraph shall not obligate the Depositors to create any New
Series or to provide any such investment election."
Section 2. This Reference Trust Agreement may be amended and modified
by Addendums, attached hereto, evidencing the purchase of Additional Securities
which have been deposited to effect an increase over the number of Units
initially specified in Part II of this Reference Trust Agreement ("Additional
Closings"). The Depositors and Trustee hereby agree that their respective
representations, agreements and certifications contained in the Closing
Memorandum dated July 20, 1999, relating to the initial deposit of Securities
continue as if such representations, agreements and certifications were made on
the date of such Additional Closings and with respect to the deposits made
therewith, except as such representations, agreements and certifications relate
to their respective By-Laws and as to which they each represent that their has
been no amendment affecting their respective abilities to perform their
respective obligations under the Indenture.
Part II
SPECIAL TERMS AND CONDITIONS OF TRUST
Section 1. The following special terms and conditions are hereby
agreed to:
(a) The Securities (including Contract Securities) listed in the
Prospectus relating to this series of XxXxxxxxxx, Piven, Xxxxx Family of Trusts
(the "Prospectus") have been
-5-
deposited in the Trust under this Agreement (see "Portfolio" in Part A of the
Prospectus which for purposes of this Indenture and Agreement is the Schedule of
Securities or Schedule A).
(b) The number of Units delivered by the Trustee in exchange for the
Securities referred to in Section 2.3 is 15,598.
(c) For the purposes of the definition of Unit in item (24) of Section
1.1, the fractional undivided interest in and ownership of the Trust initially
is 1/15,598 as of the date hereof.
(d) The term Record Date shall mean the fifteenth day of June and
December commencing on December 15, 1999.
(e) The term Distribution Date shall mean the last business day of
June and December commencing on December 31, 1999.
(f) The First Settlement Date shall mean July 23, 1999.
(g) For purposes of Section 6.1(g), the liquidation amount is hereby
specified to be 40% of the aggregate value of the Securities as of the last
deposit of Additional Securities.
(h) For purposes of Section 6.4, the Trustee shall be paid per annum
an amount computed according to the following schedule, determined on the basis
of the number of Units outstanding as of the Record Date preceding the Record
Date on which the compensation is to be paid, provided, however, that with
respect to the period prior to the first Record Date, the Trustee's compensation
shall be computed at $.86 per 100 Units:
rate per 100 units number of Units outstanding
$0.86 5,000,000 or less
$0.80 5,000,001 - 10,000,000
$0.74 10,000,001 - 20,000,000
$0.62 20,000,001 or more
(i) For purposes of Section 7.4, the Depositors' maximum annual
supervisory fee is hereby specified to be $.25 per 100 Units outstanding.
(j) The Termination Date shall be October 18, 2000 or the earlier
disposition of the last Security in the Trust.
(k) The fiscal year for the Trust shall end on June 30 of each year.
IN WITNESS WHEREOF, the parties hereto have caused this Reference
Trust Agreement to be duly executed on the date first above written.
[Signatures on separate pages]
-0-
XxXXXXXXXX, XXXXX, XXXXX SECURITIES, INC.
Depositor
By: /s/ Xxxxx X. Xxxxx
------------------------------------
President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 15th day of July, 1999, before me personally appeared Xxxxx X.
Xxxxx, to me known, who being by me duly sworn, said that he is the President of
XxXxxxxxxx, Piven, Xxxxx Securities, Inc., the Depositor, one of the
corporations described in and which executed the foregoing instrument, and that
he signed his name thereto by authority of the Board of Directors of said
corporation.
/s/ Xxxxx Xxxxx
----------------------------------
Notary Public
XXXXX XXXXX
Notary Public, State of New York
No. 02V05019906
Qualified in Bronx County
Commission Expires November 1, 1999
XXXXX & XXXX DISTRIBUTORS, INC.
Depositor
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Executive Vice President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 20th day of July, 1999, before me personally appeared Xxxxx X.
XxXxxxx, to me known, who being by me duly sworn, said that he is Executive Vice
President of the Depositor, one of the corporations described in and which
executed the foregoing instrument, and that he signed his name thereto by
authority of the Board of Directors of said corporation.
/s/ Xxxxxx Xxxxxxxx
----------------------------------
Notary Public
XXXXXX XXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in New York County
Term Expires 8/31/2000
THE CHASE MANHATTAN BANK
Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Vice President
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On this 15th day of July, 1999, before me personally appeared Xxxxxxx
X. Xxxxxxx, to me known, who being by me duly sworn, said that (s)he is an
Authorized Signator of The Chase Manhattan Bank, one of the corporations
described in and which executed the foregoing instrument; that (s)he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation and that he/she signed his/her name thereto by like authority.
/s/ Ada Xxxx Xxxx
------------------------------
Notary Public
ADA XXXX XXXX
NOTARY PUBLIC, State of New York
No. 4864106
Qualified in New York County
Commission Expires 6-30-2000