THE PINNACLE
FAMILY OF TRUSTS,
LARGE CAP SERIES IV
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement (the "Agreement") dated December 28,
1999 among XxXxxxxxxx, Piven, Xxxxx Securities, Inc., and Xxxxx & Xxxx
Distributors, Inc., as Depositors and The Chase Manhattan Bank, as Trustee, sets
forth certain provisions in full and incorporates other provisions by reference
to the document entitled "XxXxxxxxxx, Piven, Xxxxx Family of Trusts, The
Pinnacle Trust, and Subsequent Series, Trust Indenture and Agreement" dated
September 23, 1998 and as amended in part by this Agreement (collectively, such
documents hereinafter called the "Indenture and Agreement"). This Agreement and
the Indenture, as incorporated by reference herein, will constitute a single
instrument.
WITNESSETH THAT:
WHEREAS, this Agreement is a Reference Trust Agreement as defined in
Section 1.1 of the Indenture, and shall be amended and modified from time to
time by an Addendum as defined in Section 1.1 (1) of the Indenture, such
Addendum setting forth any Additional Securities as defined in Section 1.1 (2)
of the Indenture;
WHEREAS, the Depositors wish to deposit Securities, and any Additional
Securities as listed on any Addendums hereto, into the Trust and issue Units,
and Additional Units as the case maybe, in respect thereof pursuant to Section
2.5 of the Indenture; and
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the Depositors and the Trustee as follows:
Part I
STANDARD TERMS AND CONDITIONS OF TRUST
Section 1. Subject to the provisions of Part II hereof, all the
provisions contained in the Indenture are herein incorporated by reference in
their entirety and shall be deemed to be a part of this instrument as fully and
to the same extent as though said provisions had been set forth in full in this
instrument except that the following section of the Indenture hereby are amended
as follows:
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(a) All references to "XxXxxxxxxx, Piven Xxxxx Family of Trusts" are
replaced with "The Pinnacle Family of Trusts".
(b) 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 December 28, 1999.
Definitions following these definitions shall be renumbered.
(c) 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."
(d) Section 3.8 is amended to add a new paragraph (6), immediately
following paragraph (5), as follows:
"(6) that there has been a public tender offer made for a
Security or a merger or acquisition is announced affecting a
Security, and that in the opinion of the Depositors the sale
or tender of the Security is in the best interest of the
Unitholders."
(e) 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."
(f) Section 5.2 of the Agreement is further amended by adding the
following three paragraphs after the ninth paragraph of such Section 5.2.:
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"(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 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
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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.
Unitholders requesting or required to receive a
cash distribution shall receive such distribution in
accordance with the applicable provisions of the
Distribution Agency Agreement."
(g) 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."
(h) 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."
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(i) 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 Pinnacle Family of Trusts, (formerly known as
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 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 December 28, 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
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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 The Pinnacle 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 15,464.
(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 1/15,464 as of the date hereof.
(d) The term Record Date shall mean the fifteenth day of June and
December commencing on June 15, 2000.
(e) The term Distribution Date shall mean the last business day of
June and December commencing on June 30, 2000.
(f) The First Settlement Date shall mean December 31, 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
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$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 March 27, 2001 or the earlier
disposition of the last Security in the Trust.
(k) The fiscal year for the Trust shall end on June 30 of each year.
IN WITNESS WHEREOF, the parties hereto have caused this Reference
Trust Agreement to be duly executed on the date first above written.
[Signatures on separate pages]
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XxXXXXXXXX, XXXXX, XXXXX SECURITIES, INC.
Depositor
By: /s/ Xxxxx X. Xxxxx
-----------------------------
President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 21st day of December, 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
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XXXXX & TANG DISTRIBUTORS, INC.
Depositor
By: /s/ Xxxxx X. XxXxxxx
------------------------------
Executive Vice President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 21st day of December, 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.
/s/ Xxxxx Xxxxx
--------------------------------
Notary Public
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THE CHASE MANHATTAN BANK
Trustee
By: /s/ Xxxxxx Xxxxxx
-----------------------------
Vice President
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On this 22nd day of December, 1999, before me personally appeared
Xxxxxxx 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
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