Exhibit 4.2
XXXX XXXXXX SELECT EQUITY TRUST
SELECT 10 INDUSTRIAL PORTFOLIO 97-2
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated , 1997
between XXXX XXXXXX XXXXXXXX INC., as Depositor, and The Bank of
New York, as Trustee, sets forth certain provisions in full and
incorporates other provisions by reference to the document enti-
tled "Xxxx Xxxxxx Select Equity Trust, Trust Indenture and Agree-
ment" (the "Basic Agreement") dated September 30, 1993. Such
provisions as are incorporated by reference constitute a single
instrument (the "Indenture").
WITNESSETH THAT:
In consideration of the premises and of the mutual
agreements herein contained, the Depositor and the Trustee agree
as follows:
I.
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II hereof, all the
provisions contained in the Basic Agreement are herein incorpo-
rated 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 Basic Agreement is hereby amended as follows:
A. 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
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 Distribu-
tion Date next following such 90-day period or such earlier
date as the Depositor and the Trustee determine".
B. 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 instruc-
tions to the Trustee to purchase one or more Additional Secu-
rities 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 within the
90-day period following the first deposit of Securities in
the Trust, shall be distributed to Unit Holders on the Dis-
tribution Date next following such 90-day period or such ear-
lier date as the Depositor and the Trustee determine".
C. 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 Certifi-
xxxxx, 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 Sponsor,
shall be paid by the Trust;"
D. The third paragraph of Section 3.05 is hereby
amended to add the following sentence after the first sen-
tence 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 Corpora-
tion and which have, together with their branches or subsid-
iaries, 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 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."
E. 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 3.13,".
F. The following new Section 3.13 is added:
Section 3.13. 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.
G. Section 1.01 is amended to add the following defi-
nition: (9) "Deferred Sales Charge" shall mean any deferred
sales charge payable in accordance with the provisions of
Section 3.12 hereof, as set forth in the prospectus for a
Trust. Definitions following this definition (9) shall be
renumbered.
H. Section 3.05 is hereby amended to add the following
paragraph after the end thereof: On each Deferred Sales
Charge payment date set forth in the prospectus for a Trust,
the Trustee shall pay the account created pursuant to Section
3.12 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.
I. Section 3.06B(3) shall be amended by adding the
following: "and any Deferred Sales Charge paid".
J. Section 3.08 shall be amended by adding the follow-
ing 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.
K. Section 3.12 shall be added as follows:
Section 3.12. 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 pro-
spectus, 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 desig-
nated, from the Principal Account, an amount per Unit speci-
fied 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 Depos-
itor, 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 addi-
tional monies in the Income Account or the Principal Account,
sell Securities and credit the proceeds thereof to such spe-
cial 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 dis-
tribute 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.
II.
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby
agreed to:
A. The Trust is denominated Xxxx Xxxxxx Select Equity
Trust, Select 10 Industrial Portfolio 97-2 (the "Select 10
Trust").
B. The publicly traded stocks listed in Schedule A
hereto are those which, subject to the terms of this Indenture,
have been or are to be deposited in trust under this Indenture.
C. The term, "Depositor" shall xxxx Xxxx Xxxxxx
Xxxxxxxx Inc.
D. The aggregate number of Units referred to in Sec-
tions 2.03 and 9.01 of the Basic Agreement is for the
Select 10 Trust.
E. A Unit is hereby declared initially equal to
1/ th for the Select 10 Trust.
F. The term "In-Kind Distribution Date" shall mean
, .
G. The term "Record Dates" shall mean ,
, , , , and ,
and such other date as the Depositor may direct.
H. The term "Distribution Dates shall mean
, , , , , and
, and such other date as the Depositor may direct.
I. The term "Termination Date" shall mean
, .
J. For purposes of this Series -- Xxxx Xxxxxx Select
Equity Trust, Select 10 Industrial Portfolio 97-2 -- the form of
Certificate set forth in this Indenture shall be appropriately
modified to reflect the title of this Series and such of the Spe-
cial Terms and Conditions of Trust set forth herein as may be
appropriate.
K. The Depositor's Annual Portfolio Supervision Fee
shall be a maximum of $0.25 per 100 Units.
L. The Trustee's Annual Fee as defined in Section 6.04
of the Indenture shall be $ per 100 Units.
M. For a Unit Holder to receive "in-kind" distribu-
tion, such Unit Holder must tender at least 2,500 Units for
redemption, either during the life of the Trust, or at its
termination.
(Signatures and acknowledgments on separate pages)
