Exhibit 4.15
Xxxx Xxxxxx Select Equity Trust
First Amendment to
Trust Indenture and Agreement
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AMENDMENT, dated December 30, 1997, to the Trust In-
denture and Agreement for the Xxxx Xxxxxx Select Equity Trust,
between Xxxx Xxxxxx Xxxxxxxx Inc., as Depositor, and The Bank
of New York, as Trustee, dated September 30, 1993, 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 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 Dis-
tribution Agency Agreement among the Depositor, Trustee
and the Distribution Agent dated as of December 30, 1997.
Definitions following these definitions shall be re-
numbered.
B. Section 2.06 of the Agreement is amended to in-
sert the following after the second use of the word
Depositor in the first sentence thereof:
"and such other persons authorized by the Depositor"
C. Section 5.02 of the Agreement is amended by add-
ing the following prior to the first paragraph
thereof:
"In connection with each redemption of Units, the De-
positor shall direct the Trustee to redeem Units in
accordance with the procedures set forth in either
(a) or (b) of this Section 5.02. (a) Trustee-"
D. Section 5.02 of the Agreement is amended by add-
ing the following three paragraphs after the fourth
paragraph of such Section 5.02.
(b) Distribution Agent-On any Business Day on which
any Unit or Units are tendered for redemption (the
"Redemption Day") by a Unit Holder or his duly
authorized attorney to the Trustee at its corporate
trust office in the City of New York, 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. Unit Holders must sign
exactly as their name appears on the register with
the signature guaranteed by an officer of a national
bank or trust company, or by a member firm of either
the New York, Midwest, or Pacific Coast Stock Ex-
changes, or in such other manner as may be acceptable
to the Trustee. The Trustee may also require addi-
tional documents such as, but not limited to, trust
instruments, certificates of death, appointments as
executor or administrator or certificates of corpo-
rate authority. Subject to payment by such Unit
Holder of any tax or other governmental charges which
may be imposed thereon, such redemption is to be made
by distribution to the Distribution Agent on behalf
of the redeeming Unit Holder on the Redemption Day of
(i) the Unit Holder's pro rata portion as of the Re-
demption Day of the Securities in the Trust as desig-
nated by the Depositor and (ii) the Unit Holder's pro
rata portion of the cash in the Trust as of the Re-
demption Day (herein called the "Redemption Distribu-
tion"). The Distribution Agent will dispose of such
assets in accordance with the provisions of the Dis-
tribution Agency 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 De-
positor 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 com-
puted on that day. Units tendered for redemption by
the Depositor on any Business Day shall be deemed to
have been tendered before the Evaluation Time on such
Business Day provided that the Depositor advises the
Trustee before the later of the Trustee's close of
business and 5:00 PM New York City time. By such ad-
vice, the Depositor will be deemed to certify that
all Units so tendered were either (a) tendered to the
Depositor or to a retail dealer between the Evalua-
tion Time on the preceding Business Day and the
Evaluation Time on such Business Day or (b) acquired
previously by the Depositor but which the Depositor
determined to redeem prior to the Evaluation Time on
such Business Day.
The portion of the Redemption Distribution which rep-
resents the Unit Holder's interest in the Income Ac-
count shall be withdrawn from the Income Account to
the extent available. The balance paid on any re-
demption, 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 bal-
ance shall be insufficient, the Trustee shall advance
funds sufficient to pay such amount to the Unit
Holder and shall be entitled to reimbursement of such
advance upon the deposit of additional monies in the
Income Account or Principal Account, whichever hap-
pens first. Should any amounts so advanced with re-
spect to declared but unreceived dividends prove un-
collectable because of default in payment of such
dividends, the Trustee shall have the right immedi-
ately to liquidate Securities in amount sufficient to
reimburse itself for such advances, without interest.
In the event that funds are withdrawn from the Prin-
cipal Account for payment of any portion of the Re-
demption Distribution representing dividends receiv-
able on stocks trading ex dividend, the Principal Ac-
count shall be reimbursed when sufficient funds are
next available in the Income Account for such funds
so applied.
Unit Holders requesting or required to receive a cash
distribution shall receive such distribution in ac-
cordance with the applicable provisions of the Dis-
tribution Agency Agreement.
E. Section 6.02 of the Agreement is amended by add-
ing the following at the end of the second paragraph
thereof:
The Trustee shall maintain and provide, upon the re-
quest of a Unit Holder or the Depositor, the Unit Holder
or the Unit Holder's designated representative with the
cost basis of the Securities represented by the Unit
Holder's Units.
IN WITNESS WHEREOF, Xxxx Xxxxxx Xxxxxxxx Inc. and The
Bank 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:
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Title: First Vice President
(SEAL)
Attest:
By:
----------------------------
Title: First Vice President
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------
Title:
Attest:
By:
---------------------------
Title:
DISTRIBUTION AGENCY AGREEMENT
This Distribution Agency Agreement ("Agreement") dated as of December
30, 1997 among Xxxx Xxxxxx Xxxxxxxx Inc., as the Depositor (the "Depositor"),
The Bank of New York, as Trustee (the "Trustee") pursuant to the Trust Indenture
and Agreement dated September 30, 1993, as amended on December 30, 1997,
(collectively, the "Indenture"), relating to series of the Xxxx Xxxxxx Select
Equity Trust Select 10 Industrial Portfolio and Select Global 30 Portfolio
(each, a "Trust") and The Bank of New York, as Distribution Agent (the "Agent"),
sets forth procedures for the distribution of proceeds of redemptions of Units
from the Trust to the Unit Holders. All capitalized terms used but not defined
herein that are defined in the Indenture are used herein as defined therein.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor, the Trustee and the Agent agree as follows:
ARTICLE I
SECTION 1.01. Redemption of Units.
(a) IN KIND REDEMPTION OF UNITS: Units tendered as set forth in
Section 5.02 of the Indenture for redemption shall be redeemed on the
Redemption Day. Subject to payment by a tendering Unit Holder of any tax
or other governmental charges which may be imposed thereon, such redemption
shall be made by the distribution by the Trustee to the Agent on the
Redemption Day of the Redemption Distribution. The Agent shall distribute
to the redeeming Unit Holder no later than the third Business Day
subsequent to the Redemption Day the whole securities received by it plus
the cash component of the Redemption Distribution in an amount equal to the
Unit Cash Value (the Unit Value less the value determined pursuant to
Section 5.01(a)(2) of the Indenture shall be the "Unit Cash Value") plus
cash equal to the value of fractional shares, provided, however, that the
Agent will not transfer to a Unit Holder Securities distributed in kind
unless the Unit
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Holder tenders in excess of 25,000 Units (based on Units offered at
approximately $10.00 per Unit).
(b) CASH REDEMPTION OF UNITS: Unit Holders tendering fewer than
25,000 Units (based on Units offered at approximately $10.00 per Unit) and
other Unit Holders not desiring to retain Securities in-kind will receive a
distribution in cash as set forth in this paragraph (b). Units tendered
for redemption in connection with a cash redemption shall be tendered and
redeemed in the manner and at the time set forth in (a) above for in kind
redemptions, except that on the Redemption Date related to such tender by a
Unit Holder or as soon thereafter as possible, the Agent shall sell the
Securities which comprise the Redemption Distribution, using its best
reasonable efforts to secure the best price obtainable for such Securities,
and shall distribute to the Unit Holder, subject to payment by the Unit
Holder of any tax or governmental charges that may be imposed thereon or
any brokerage commission charged on the sale, for each Unit tendered (i) an
amount in cash equal to the proceeds from the sale of the Securities which
comprise the Redemption Distribution; (ii) an amount in cash equal to the
Unit Cash value (determined as of the Evaluation Time on the date of
tender); and (iii) cash equal to the value of any fractional shares
included in the Unit Holder's pro rata portion of the Securities as of the
Redemption Day distributed to the Agent by the Trustee. Such cash
distribution shall be made within seven calendar days of the Redemption
Day. Neither the Agent nor the Depositor shall be liable or responsible in
any way for depreciation or loss incurred by reason of any sale or sales
made in accordance with this Section 1.01(b).
With respect to either (a) or (b) above, if the Unit Cash Value is an amount
less than zero, the Agent shall remit to the Trustee (or the Trustee shall, in
the case of (X) or (y) below, withhold from distribution to the redeeming Unit
Holder) for each redeemed Unit the negative amount, obtained from the following
sources in the following order until such amount has been remitted to the
Trustee in full:
(x) amounts due the Unit Holder of such redeemed Units from the sale of
fractional shares of Securities otherwise part of the Redemption
Distribution;
(y) amounts otherwise due to the Unit Holder of such redeemed Units in the
form of an Income Distribution;
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(z) proceeds from the sale of other shares of Securities otherwise part of
the Redemption Distribution.
SECTION 1.02. In-Kind Rollover: The provisions of this section shall
apply to distributions from such series of the Xxxx Xxxxxx Select Equity Trust
as the Depositor shall specify to the Trustee and Agent prior to one or more
dates designated by the Depositor (each a "Rollover Date") for such series. As
directed by the Depositor, the Trustee shall notify Unit Holders of the
availability of any election provided under this sub-section.
A Unit Holder who holds at least the minimum Unit holding, if any,
specified by the Depositor and Agent may, by notice to the Agent or Depositor,
elect to invest in a subsequent trust ("New Trust") through an in-kind deposit
into the New Trust and to have his Securities and cash comprising the in-kind
Redemption Distribution in respect of his Units (the "Termination Distribution")
held by the Agent on his behalf and the following actions taken on his behalf.
1. The Agent shall determine the number of whole and fractional shares of
each issue of Securities included in the Unit Holders' Termination
Distribution from the terminating series of the trust ("Old Trust").
2. The Agent shall estimate the aggregate number of Units of the New
Trust ("New Trust Units") which can be created from the Termination
Distributions by totalling the value (determined as provided in the
Indenture) of the Securities identified in paragraph 1 and cash
included in the electing Unit Holders' Termination Distributions,
subtracting from such amount transaction costs, and dividing such
number by the then net asset value of the New Trust Units, as
increased by any applicable sales charge.
3. The Agent shall determine the number of shares of each issue of
Securities which is common to both the Old Trust and New Trust
("Common Securities") required to create the number of Units estimated
in paragraph 2. The Agent shall segregate from the Securities
identified in paragraph 1 (to the extent included therein) such number
of shares of Common Securities to the extent of whole shares and shall
transfer such whole shares to a separate account for the electing Unit
Holders.
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4. The balance of the Securities identified in paragraph 1 shall be sold,
on behalf of the electing Unit Holders, by the Depositor as sub-agent
for the Agent, or by such other sub-agent as shall be designated by
the Depositor or absent such designation, such other sub-agent as the
Agent shall determine (any such sub-agent, the "Sub-Agent") on the
Rollover Date of the Old Trust, or during such other period as the
Depositor shall select ("Sale Date"), such Sub-Agent using its best
reasonable efforts to secure the best price obtainable for the
Securities (the "Sales Proceeds"). The Agent shall deduct from the
Sales Proceeds and pay any tax or governmental charges and commissions
in connection with the sales. The net proceeds shall be transferred
to a separate account for the electing Unit Holders.
5. On the Sale Date, the Sub-Agent, on behalf of the electing Unit
Holders, shall purchase Securities required to constitute the New
Trust Units which are not Common Securities ("New Trust Securities")
and any additional shares of Common Securities necessary to constitute
the New Trust Units. If the available Sales Proceeds and other cash
amounts included in the Termination Distribution shall be insufficient
to purchase the number of shares of New Trust Securities and any
additional shares of Common Securities required to create the number
of New Trust Units estimated by the Agent as provided in paragraph 2,
such estimated number of New Trust Units shall be reduced and the
excess shares of Common Securities and New Trust Securities shall be
promptly sold by the Sub-Agent on behalf of the electing Unit Holders.
6. Following the execution of contracts for all of the above sales and
purchases, the Common Securities and the New Trust Securities, or
contracts to purchase such New Trust Securities, and cash, if any,
required to be deposited in connection with the issuance of the New
Trust Units, shall be deposited by the Agent on behalf of the electing
Unit Holders in the New Trust. The Agent shall cause to be credited
to each such Unit Holder the New Trust Units attributable to such Unit
Holder's Termination Distribution. Fractional Units shall be promptly
sold to the Depositor or, if the Depositor declines to purchase the
fractional Units, redeemed in accordance with the Indenture, provided,
however, that no deferred sales
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charge shall be deducted from the proceeds of such sale or redemption.
7. Within a reasonable time thereafter, the Agent shall (i) distribute to
the Depositor the sales charge, if any, payable to the Depositor (as
certified to the Agent by the Depositor, on which certification the
Agent shall rely) in connection with the issuance of New Trust Units
to the Unit Holders, (ii) distribute, in accordance with this
Agreement, to each Unit Holder such Unit Holder's pro rata share of
any cash not applied to the purchase of New Trust Securities and (iii)
mail to each Unit Holder a report showing the number of New Trust
Units credited to the Unit Holder and the sales charge, if any, paid
to the Depositor to acquire the New Trust Units.
8. The Agent shall have no liability to any person for any loss or
depreciation resulting from any estimate made pursuant to this section
so long as such estimate was made in good faith on the basis of
information reasonably available to the Agent. Neither the Depositor,
the Trustee, the Agent nor any Sub-Agent shall be liable for or
responsible in any way for depreciation or loss incurred by reason of
any estimate, sale or sales, or purchase or purchases, including,
without limitation, sales or redemptions of fractional Units, made in
accordance with this section.
ARTICLE II
DISTRIBUTION BETWEEN AGENT AND UNIT HOLDERS
SECTION 2.01. CASH DISTRIBUTIONS: (a) Upon receipt of any cash to
be distributed as a result of the sale of Securities or other actions taken as
provided in Sections 1.01 and 1.02 hereof, the Agent shall deposit such cash in
an account entitled The Bank of New York as Agent pursuant to the Distribution
Agency Agreement dated December , 1997 or other similar title (the "Agency
Account"). All distributions to be made pursuant to this Agreement shall be
made from such account.
(b) Cash to be distributed to Unit Holders shall be distributed by
the Agent to such Unit Holders in the manner
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generally used by the Trustee for cash Income Distributions made to Unit
Holders.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. FEES AND EXPENSES: The Agent shall receive no fee for
its services hereunder; PROVIDED, however, that the Trustee may pay the Agent an
amount equal to the costs incurred by the Agent in connection with the
performance by the Agent of its services hereunder, which costs shall be allowed
the Trustee as a cost of its services as Trustee, but the Trustee shall not be
entitled to be reimbursed by the Trust for any such fee paid to the Agent to the
extent the Trustee would thereby receive a fee greater than the Trustee's fee
set forth in the Indenture. Out-of-pocket expenses incurred by the Agent (E.G.,
mailing costs) shall be reimbursed by the Trustee and shall be treated as
expenses of the Trust under the Indenture. The Agent shall be indemnified and
held harmless against any loss or liability accruing to it without negligence,
bad faith or willful misfeasance on its part (or by reason of its reckless
disregard of its obligations and duties hereunder), arising out of or in
connection with the acceptance or administration of this Agreement, including
the costs and expenses (including counsel fees) of defending itself against any
claim of liability in the premises.
SECTION 3.02. GENERAL MATTERS RELATING TO AGENT:
(a) All moneys deposited with or received by the Agent hereunder
shall be held by it without interest until required to be disbursed in
accordance with the provisions of this Agreement.
(b) The Agent shall be under no liability for any action taken in
good faith in reliance on any appraisal, paper, order, list, demand,
request, consent, affidavit, notice, opinion, direction, evaluation,
endorsement, assignment, resolution, draft or other document provided by
the Trustee or the Depositor, whether or not of the same kind, prima facie
properly executed, or for the disposition of moneys or Securities pursuant
to this Agreement; or in respect of any evaluation which it is required to
make or is required or permitted to have made by others under this
Agreement or otherwise, except by reason of its
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own willful misfeasance, bad faith or negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
hereunder. The Agent may construe any of the provisions of this Agreement,
insofar as the same may appear to be ambiguous or inconsistent with any
other provisions hereof, which construction shall be binding upon the Unit
Holders and the parties hereto.
SECTION 3.03. RESIGNATION, DISCHARGE OR REMOVAL OF AGENT; SUCCESSORS:
(a) The Agent may resign and be discharged from the duties created by
this Agreement by executing a written resignation as such Agent, and filing
the same with the Trustee and the Depositor at least 60 days prior to the
date on which the Agent intends such resignation to become effective. Upon
receiving such notice of resignation, the Depositor shall use its best
efforts promptly to appoint a successor Agent in the manner and meeting the
qualifications hereinafter provided. In case at any time the Agent shall
not meet the requirements set forth in Section 3.04 hereof, or shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of such Agent or of its property shall be appointed, or any public
officer shall take charge or control of such Agent or of any of its
property or affairs for the purposes of rehabilitation, conservation or
liquidation or upon the determination of the Depositor to remove the Agent
for any reason, either with or without cause, including, but not limited
to, a determination by the Depositor that the Agent has materially failed
to perform its duties under this Agreement and the interest of Unit Holders
has been substantially impaired as a result, then in any such case, the
Depositor may remove such Agent and appoint a successor Agent by written
instrument or instruments delivered to the Trustee, the Agent so removed
and the successor.
(b) In case at any time the Agent shall resign and no successor Agent
shall have been appointed within thirty days after notice of resignation
has been received by the Depositor, the Depositor shall serve as Agent
until a qualified successor Agent is appointed.
SECTION 3.04. QUALIFICATION OF AGENT: The Agent and any successor
Agent shall be a banking or trust corporation meeting the requirements of the
Investment Company Act of 1940
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for trustees, organized and doing business under the laws of the United States
or any state thereof, having at all times an aggregate capital, surplus, and
undivided profits of not less than $5,000,000.
SECTION 3.05. PROCEDURE UPON TERMINATION: This Agreement and the
duties created hereby shall terminate upon the disposition of the last Security
and the proceeds of such Security held under the Indenture and this Distribution
Agency Agreement.
SECTION 3.06. AMENDMENT AND WAIVER: This Agreement may be amended
from time to time by the Depositor, the Trustee and the Agent (a) to cure any
ambiguity or to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provision contained herein; or
(b) to make such other provisions in regard to matters or questions arising
hereunder as shall not materially adversely affect the interests of the Unit
Holders.
SECTION 3.07. NEW YORK LAW TO GOVERN: The internal laws of the State
of New York shall govern the rights of the parties hereto and the interpretation
of the provisions hereof.
SECTION 3.08. NOTICES: Any notice, demand, direction or instruction
to be given to the Depositor hereunder shall be in writing and shall be duly
given if mailed or delivered to Xxxx Xxxxxx Xxxxxxxx Inc., 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other address as shall be specified by the
Depositor to the other parties hereto in writing. Any notice, demand,
direction, or instruction to be given to the Trustee or Agent shall be in
writing and shall be duly given if mailed or delivered to its office at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 0000, or such other address as shall be
specified to the other parties hereto by the Trustee or Agent, as the case may
be, in writing.
SECTION 3.09. SEVERABILITY: If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 3.10. SEPARATE AND DISTINCT SERIES: Each Trust established
as a Series of the Xxxx Xxxxxx Select Equity
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Trust shall, for all financial and administrative purposes, be considered
separate and distinct from every other Trust, and the assets of one Trust shall
not be commingled with the assets of another Trust nor shall the expenses of any
one Trust be charged against any other Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
XXXX XXXXXX XXXXXXXX INC.
Depositor
By
---------------------------------
Title: First Vice President
ATTEST:
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Assistant Secretary
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XXX XXXX XX XXX XXXX,
Trustee
By
---------------------------------
Title: Vice President
ATTEST:
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Assistant Treasurer
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XXX XXXX XX XXX XXXX,
Agent
By
---------------------------------
Title: Vice President
ATTEST:
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Assistant Treasurer
