EXHIBIT 99.1.1
XxXXXXXXXX, PIVEN, XXXXX
FAMILY OF TRUSTS,
XXXXXXXXXX, PIVEN, XXXXX INDUSTRIAL TRUST
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement (the "Agreement") dated April 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
Sec tion 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 April 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
Unitholder may appoint the Distribution
-4-
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."
-5-
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 April 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 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 15,511.
(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 1/15,511 as of the date hereof.
(d) The term Record Date shall mean the fifteenth day of June and
December commencing on June 15, 1999.
(e) The term Distribution Date shall mean the last business day of
June and December commencing on June 30, 1999.
(f) The First Settlement Date shall mean April 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.
-6-
(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 July 17, 2000 or the earlier
disposition of the last Security in the Trust.
(k) The fiscal year for the Trust shall end on December 31 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]
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XXX XXXXX XXXXXXXXX BANK
Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Vice President
(SEAL)
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On this 16th day of April, 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 June 30, 2000
XXXXX & TANG DISTRIBUTORS, INC.
By: /s/ Xxxxx X. Xx Xxxxx
-------------------------------------
Executive Vice President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 16th day of April, 1999, before me personally appeared Xxxxx
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.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Notary Public
XXXXXX XXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in New York County
Term Expires August 31, 2000
XxXXXXXXXX, PIVEN, XXXXX SECURITIES, INC.
Depositor
By: /a/ Xxxxx X. Xxxxx
-------------------------------------
President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 16th day of April, 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. 02VO5019906
Qualified in Bronx County
Commission Expires November 1, 1999
XxXXXXXXXX, PIVEN, XXXXX
FAMILY OF TRUSTS,
XXXXXXXXXX, PIVEN, XXXXX TECHNOLOGY TRUST
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement (the "Agreement") dated April 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
Sec tion 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 April 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
Unitholder may appoint the Distribution
-4-
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 April 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 15,451.
(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 1/15,451 as of the date hereof.
(d) The term Record Date shall mean the fifteenth day of June and
December commencing on June 15, 1999.
(e) The term Distribution Date shall mean the last business day of
June and December commencing on June 30, 1999.
(f) The First Settlement Date shall mean April 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 July 17, 2000 or the earlier
disposition of the last Security in the Trust.
(k) The fiscal year for the Trust shall end on December 31 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-
XXX XXXXX XXXXXXXXX BANK
Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Vice President
(SEAL)
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On this 16th day of April, 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 June 30, 2000
XXXXX & TANG DISTRIBUTORS, INC.
Depositor
By: /s/ Xxxxx X. Xx Xxxxx
-------------------------------------
Executive Vice President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 16th day of April, 1999, before me personally appeared Xxxxx
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.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Notary Public
XXXXXX XXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in New York County
Term Expires August 31, 2000
XxXXXXXXXX, PIVEN, XXXXX SECURITIES, INC.
Depositor
By: /a/ Xxxxx X. Xxxxx
-------------------------------------
President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 16th day of April, 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. 02VO5019906
Qualified in Bronx County
Commission Expires November 1, 1999
