Exhibit 4.15
Xxxx Xxxxxx Select Equity Trust
Third Amendment to
Trust Indenture and Agreement
-----------------------------
AMENDMENT, dated December 30, 1997, to the Trust Inden-
ture and Agreement for the Xxxx Xxxxxx Select Equity Trust, be-
tween Xxxx Xxxxxx Xxxxxxxx Inc., as Depositor, and United States Trust
Company of New York (predecessor, as Trustee, to the undersigned The Chase
Manhattan Bank), 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 satis-
fied;
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 Distribution Agency Agree-
ment among the Depositor, Trustee and
the Distribution Agent dated as of
December 30, 1997.
Definitions following these defini-
tions shall be renumbered.
B. Section 2.06 of the Agreement is amended to insert
the following after the second use of the word Deposi-
tor in the first sentence thereof:
"and such other persons authorized by the Depositor"
C. Section 5.02 of the Agreement is amended by adding
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 ac-
cordance 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 adding
the following three paragraphs after the fourth para-
graph 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 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. Unit Holders 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 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 Redemption Day
of the Securities in the Trust as designated by the Depositor and
(ii) the Unit Holder'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 Redemp-
tion Price computed 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 advice, 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 Evalua-
tion Time on such Business Day or (b) acquired previ-
ously by the Depositor but which the Depositor deter-
mined to redeem prior to the Evaluation Time on such
Business Day.
The portion of the Redemption Distribution which repre-
sents the Unit Holder's interest in the Income Account
shall be withdrawn from the Income Account to the ex-
tent 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 insuffi-
cient, the Trustee shall advance funds sufficient to
pay such amount to the Unit Holder and shall be enti-
tled 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 uncollectable 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, with-
out 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.
Unit Holders requesting or required to receive a cash
distribution shall receive such distribution in accor-
dance with the applicable provisions of the Distribu-
tion Agency Agreement.
E. Section 6.02 of the Agreement is amended by adding
the following at the end of the second paragraph
thereof:
The Trustee shall maintain and pro-
vide, upon the request of a Unit
Holder or the Depositor, the Unit
Holder or the Unit Holder's desig-
nated representative with the cost
basis of the Securities represented
by the Unit Holder's Units.
This Amendment shall be effective with respect to any Trust created
by a Reference Trust Agreement incorporating the Trust Indenture and
Agreement dated on or after the date hereof.
IN WITNESS WHEREOF, Xxxx Xxxxxx Xxxxxxxx Inc. and The
Chase Manhattan Bank 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: First Vice President
(SEAL)
Attest:
By:
----------------------------
Title: First Vice President
THE CHASE MANHATTAN BANK,
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 Chase Manhattan Bank, as Trustee (the "Trustee") pursuant
to the Trust Indenture and Agreement dated January 22, 1991, as amended on
March 16, 1993, July 18, 1995 and December 30, 1997, (collectively, the
"Indenture"), relating to series of the Xxxx Xxxxxx Select Equity Trust
Select 5 Industrial Portfolio (each, a "Trust") and The Chase Manhattan Bank,
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 Chase Manhattan Bank 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 own willful misfeasance, bad faith or
negligence in the performance of its duties or by reason of its
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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
if the Depositor shall determine in good faith that there has occurred either
(1) a material deterioration in the creditworthiness of the Agent or (2) one
or more negligent or otherwise wrongful acts on the part of the Agent having
a materially adverse effect, either singly or in the aggregate, on the
Securities and proceeds thereof and interests of the Unit Holders, such that
the replacement of the Agent is in the best interests of the Units Holders,
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 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.
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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., Xxx
Xxxxx Xxxxx 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 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 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.
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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:
-----------------------------------
Assistant Secretary
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XXX XXXXX XXXXXXXXX BANK,
Trustee
By
-------------------------------------
Title: Vice President
ATTEST:
-----------------------------------
Assistant Treasurer
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XXX XXXXX XXXXXXXXX BANK,
Agent
By
-------------------------------------
Title: Vice President
ATTEST:
-----------------------------------
Assistant Treasurer
