Xxxx Xxxxxx Select Equity Trust
Amendment to
TRUST INDENTURE AND AGREEMENT
AMENDMENT, dated July 18, 1995, to the Trust Indenture and
Agreement for the Xxxx Xxxxxx Select Equity Trust, between Xxxx Xxxxxx Xxxxxxxx
Inc., as Depositor, and United States Trust Company of New York, as Trustee,
dated January 22, 1991, as amended (the "Agreement"),
WITNESSETH that
WHEREAS, all conditions and requirements necessary to make
this Amendment a valid instrument that is legally binding on the parties hereto
and the Certificate holders have been satisfied;
NOW, THEREFORE, the parties hereto agree as follows:
A. Section 1.01 is amended to add the following
definition: (9) "Deferred Sales Charge" shall mean any deferred sales
charge payable in accordance with the provisions of Section 3.15
hereof, as set forth in the prospectus for a Trust. Definitions
following this definition (9) shall be renumbered.
B. The first sentence of Section 2.01 is amended to add
the following language at the end of such sentence: "and/or cash (or a
letter of credit in lieu of cash) with written instructions to the
Trustee to purchase one or more of such Securities which cash (or cash
in an amount equal to the face amount of the letter of credit), to the
extent not used by the Trustee to purchase such Securities within the
90-day period following the first deposit of Securities in the Trust,
shall be distributed to Unit Holders on the Distribution Date next
following such 90-day period or such earlier date as the Depositor and
the Trustee determine".
C. The first sentence of Section 2.06 is amended to add
the following language after "Securities"))": "and/or cash (or a letter
of credit in lieu of cash) with instructions to the Trustee to purchase
one or more Additional Securities which cash (or cash in an amount
equal to the face amount of the letter of credit), to the extent not
used by the Trustee to purchase such Additional Securities
-2-
within the 90-day period following the first deposit of Securities in
the Trust, shall be distributed to Unit Holders on the Distribution
Date next following such 90-day period or such earlier date as the
Depositor and the Trustee determine".
D. Article III, entitled "Administration of Trust",
Section 3.01 Initial Cost shall be amended as follows:
(i) the first part of the first sentence of
Section 3.01 Initial Cost shall be amended to substitute the
following language before the phrase "PROVIDED, HOWEVER":
"With respect to the Trust, the cost of the
preparation, printing and execution of the
Certificates, Indenture, Registration Statement and
other documents relating to the Trust, Federal and
State registration fees and costs, the initial fees
and expenses of the Trustee, legal and auditing
expenses and other out-of-pocket organizational
expenses, to the extent not borne by the Depositor,
shall be paid by the Trust;"
(ii) Section 3.01 shall be further amended to add
the following language:
"To the extent the funds in the Income and
Principal Accounts of the Trust shall be insufficient
to pay the expenses borne by the Trust specified in
this Section 3.01, the Trustee shall advance out of
its own funds and cause to be deposited and credited
to the Income Account such amount as may be required
to permit payment of such expenses. The Trustee shall
be reimbursed for such advance on each Record Date
from funds on hand in the Income Account or, to the
extent funds are not available in such Account, from
the Principal Account in the amount deemed to have
accrued as of such Record Date as provided in the
following sentence (less prior payments on account of
such advances, if any), and the provisions of Section
6.04 with respect to the reimbursement of
disbursements for Trust expenses, including, without
limitation, the lien in favor of the Trustee therefor
and the authority to sell Securities as needed to
fund such reimbursement, shall apply to the payment
of ex-
-3-
penses and the amounts advanced pursuant to this
Section. For the purposes of the preceding sentence
and the addition provided to clause (a)(3) of Section
5.01, the expenses borne by the Trust pursuant to
this Section shall be deemed to have been paid on the
date of the Reference Trust Agreement and to accrue
at a daily rate over the time period specified for
their amortization provided in the Prospectus;
PROVIDED, however, that nothing herein shall be
deemed to prevent, and the Trustee shall be entitled
to, full reimbursement for any advances made pursuant
to this Section no later than the termination of the
Trust. For purposes of calculating the accrual of
organizational expenses under this Section 3.01, the
Trustee shall rely on the written estimates of such
expenses provided by the Depositor pursuant to
Section 5.01.11.
E. The third paragraph of Section 3.05 is hereby amended
to add the following sentence after the first sentence thereof:
"Depositor may direct the Trustee to invest the proceeds of any sale of
Securities not required for the redemption of Units in eligible money
market instruments selected by the Depositor which will include only
negotiable certificates of deposit or time deposits of domestic banks
which are members of the Federal Deposit Insurance Corporation and
which have, together with their branches or subsidiaries, more than $2
billion in total assets, except that certificates of deposit or time
deposits of smaller domestic banks may be held provided the deposit
does not exceed the insurance coverage on the instrument (which
currently is $100,000), and provided further that the Trust's aggregate
holding of certificates of deposit or time deposits issued by the
Trustee may not, unless the Trustee is protecting the deposited funds
in accordance with 12 C.F.R. 9.10 (or successor regulations), exceed
the insurance coverage of such obligations and U.S. Treasury notes or
bills (which shall be held until the maturity thereof) each of which
matures prior to the earlier of the next following Distribution Date or
90 days after receipt, the principal thereof and interest thereon (to
the extent such interest is not used to pay Trust expenses) to be
distributed on the earlier of the 90th day after receipt or the next
following Distribution Date."
F. Section 3.05 is hereby amended to add the following
paragraph after the end thereof: on each Deferred
-4-
Sales Charge payment date set forth in the prospectus for a Trust, the
Trustee shall pay the account created pursuant to Section 3.15 the
amount of the Deferred Sales Charge payable on each such date as stated
in the prospectus for a Trust. Such amount shall be withdrawn from the
Principal Account from the amounts therein designated for such purpose.
G. Section 3.06B(3) shall be amended by adding the
following: "and any Deferred Sales Charge paid".
H. Section 3.08 shall be amended by adding the following
at the end thereof: "In order to pay the Deferred Sales Charge, the
Trustee shall sell or liquidate an amount of Securities at such time
and from time to time and in such manner as the Depositor shall direct
such that the proceeds of such sale or liquidation shall equal the
amount required to be paid to the Depositor pursuant to the Deferred
Sales Charge program as set forth in the prospectus for a Trust.
I. The first sentence of each of Sections 3.10, 3.11 and
3.12 is amended to insert the following language at the beginning of
such sentence, "Except as otherwise provided in Section 3.14,".
J. The following new Section 3.14 is added
Section 3.14. EXTRAORDINARY EVENT - SECURITY RETENTION AND
VOTING. In the event the Trustee is notified of any action to be taken
or proposed to be taken by holders of the securities held by the Trust
in connection with any proposed merger, reorganization, spin-off,
split-off or split-up by the issuer of stock or securities held in the
Trust, the Trustee shall take such action or refrain from taking any
action, as appropriate, so as to insure that the securities are voted
as closely as possible in the same manner and in the same general
proportion as are the securities held by owners other than the Trust.
If stock or securities are received by the Trustee, with or without
cash, as a result of any merger, reorganization, spin-off, split-off or
split-up by the issuer of stock or securities held in the Trust, the
Trustee at the direction of the Depositor may retain such stock or
securities in the Trust. Neither the Depositor nor the Trustee shall be
liable to any person for any action or failure to take action with
respect to this section.
-5-
K. Section 3.15 shall be added as follows:
Section 3.15. DEFERRED SALES CHARGE. If the prospectus for a
Trust specifies a Deferred Sales Charge, the Trustee shall, on the
dates specified in and as permitted by the prospectus, withdraw from
the Income Account if such account is designated in the prospectus as
the source of the payments of the Deferred Sales Charge, or to the
extent funds are not available in that account or if such account is
not so designated, from the Principal Account, an amount per Unit
specified in the prospectus and credit such amount to a special,
non-Trust account maintained at the Trustee out of which the Deferred
Sales Charge will be distributed to the Depositor. If the Income
Account is not designated as the source of the Deferred Sales Charge
payment or if the balances in the Income and Principal Accounts are
insufficient to make any such withdrawal, the Trustee shall, as
directed by the Depositor, either advance funds, if so agreed to by the
Trustee, in an amount equal to the proposed withdrawal and be entitled
to reimbursement of such advance upon the deposit of additional monies
in the Income Account or the Principal Account, sell Securities and
credit the proceeds thereof to such special Depositor's account or
credit Securities in kind to such special Depositor's Account. Such
directions shall identify the Securities, if any, to be sold or
distributed in kind and shall contain, if the Trustee is directed by
the Depositor to sell a Security, instructions as to execution of such
sales. If a Unit Holder redeems Units prior to full payment of the
Deferred Sales Charge, the Trustee shall, if so provided in the
prospectus, on the Redemption Date, withhold from the Redemption Price
payment to such Unit Holder an amount equal to the unpaid portion of
the Deferred Sales Charge and distribute such amount to such special
Depositor's account or, if the Depositor shall purchase such Unit
pursuant to the terms of Section 5.02 hereof, the Depositor shall pay
the Redemption Price for such Unit less the unpaid portion of the
Deferred Sales Charge. The Depositor may at any time instruct the
Trustee to distribute to the Depositor cash or Securities previously
credited to the special Depositor's account.
L. Article V, entitled "Trust Evaluation, Redemption,
Transfer of Units," section 5.01 Trust Evaluation shall be amended as
follows:
-6-
(i) The second sentence of the first paragraph
of Section 5.01 shall be amended by deleting the word "and"
appearing at the end of subsection (a)(2) of such sentence and
inserting the following after "(a)(3)": "amounts representing
organizational expenses paid from the Trust less amounts
representing accrued organizational expenses of the Trust, and
(a)(4)".
(ii) The following shall be added at the end of
the first paragraph of Section 5.01:
Until the Depositor has informed the Trustee
that there will be no further deposits of Additional
Securities pursuant to section 3.06, the Depositor
shall provide the Trustee with written estimates of
(i) the total organizational expenses to be borne by
the Trust pursuant to Section 3.01 and (ii) the total
number of Units to be issued in connection with the
initial deposit and all anticipated deposits of
Additional Securities. For purposes of calculating
the value of the Trust and Unit Value, the Trustee
shall treat all such anticipated expenses as having
been paid and all liabilities therefor as haying been
incurred, and all Units as having been issued, in
each case on the date of the Reference Trust
Agreement, and, in connection with each such
calculation, shall take into account a PRO RATA
portion of such expense and liability based on the
actual number of Units issued as of the date of such
calculation. In the event the Trustee is informed by
the Depositor of a revision in its estimate of total
expenses or total Units and upon the conclusion of
the deposit of Additional Securities, the Trustee
shall base calculations made thereafter on such
revised estimates or actual expenses, respectively,
but such adjustment shall not affect calculations
made prior thereto and no adjustment shall be made in
respect thereof.
M. Section 6.05(a) is amended to delete the clause
beginning "in the event" and ending with "determination by the
Depositor" and insert in place thereof "if the Depositor shall
determine in good faith that there has occurred either (1) a material
deterioration in the creditworthiness of the Trustee or (2) one or more
negligent acts on
-7-
the part of the Trustee having a materially adverse effect, either
singly or in the aggregate, on the Trust or on one or more Trusts, such
that the replacement of the Trustee is in the best interests of the
Unit Holders,".
N. Sections 6.01 (b) , 601(j) and 6.04 are amended to
delete the word "gross" immediately prior to the word negligence.
This Amendment shall apply to any Reference Trust Agreement
incorporating the Agreement by reference dated on or after the date hereof.
-8-
FORM OF SIGNATURE PAGE
IN WITNESS WHEREOF, Xxxx Xxxxxx Xxxxxxxx Inc. and United
States Trust Company of New York have caused this amendment to be executed by
one of their authorized officers as of the day and year first above written.
XXXX XXXXXX XXXXXXXX INC.,
as Depositor
By:
-----------------------------
Title: Vice President
[SEAL]
Attest:
By:
-----------------------------------
Title: First Vice President
-0-
XXXXXX XXXXXX TRUST COMPANY OF
NEW YORK, as Trustee
By:
--------------------------------
Title: Assistant Vice
President
[SEAL]
Attest:
------------------------------
Title: Assistant Secretary
