XXXXXX XXXXXXX XXXX XXXXXX SELECT EQUITY TRUST
STRATEGIC GROWTH LARGE CAP PORTFOLIO 99-1
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated , 1999 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 entitled "Xxxx Xxxxxx Select Equity Trust, Trust Indenture and
Agreement" (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 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 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 Distribution 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
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 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. Article III, entitled "Administration of Trust", Section 3.01
Initial Cost shall be amended as follows: Section 3.01 Initial Cost shall
be amended to substitute the following language:
SECTION 3.01. INITIAL COST. The costs of organizing the Trust
and sale of the Trust Units shall, to the extent of the expenses
reimbursable to the Depositor provided below, be borne by the Unit
Holders, PROVIDED, HOWEVER, that, to the extent all of such costs are
not borne by Unit Holders, the amount of such costs not borne by Unit
Holders shall be borne by the Depositor and, PROVIDED FURTHER,
HOWEVER, that the liability on the part of the Depositor under this
section shall not include any fees or other expenses incurred in
connection with the administration of the Trust subsequent to the
deposit referred to in Section 2.01. Upon notification from the
Depositor that the primary offering period is concluded, the Trustee
shall withdraw from the Account or Accounts specified in the
Prospectus or, if no Account is therein specified, from the Principal
Account, and pay to the Depositor the Depositor's reimbursable
expenses of organizing the Trust and sale of the Trust Units in an
amount certified to the Trustee by the Depositor. If the balance of
the Principal Account is insufficient to make such withdrawal, the
Trustee shall, as directed by the Depositor, sell Securities
identified by the Depositor, or distribute to the Depositor Securities
having a value, as determined under Section 4.01 as of the date of
distribution, sufficient for such reimbursement. The reimbursement
provided for in this section shall be for the account of the
Unitholders of record at the conclusion of the
primary offering period and shall not be reflected in the computation
of the Unit Value prior thereto. As used herein, the Depositor's
reimbursable expenses of organizing the Trust and sale of the Trust
Units shall include the cost of the initial preparation and
typesetting of the registration statement, prospectuses (including
preliminary prospectuses), the indenture, and other documents relating
to the Trust, SEC and state blue sky registration fees, the cost of
the initial valuation of the portfolio and audit of the Trust, the
initial fees and expenses of the Trustee, and legal and other
out-of-pocket expenses related thereto, but not including the expenses
incurred in the printing of preliminary prospectuses and prospectuses,
expenses incurred in the preparation and printing of brochures and
other advertising materials and any other selling expenses. Any cash
which the Depositor has identified as to be used for reimbursement of
expenses pursuant to this Section shall be reserved by the Trustee for
such purpose and shall not be subject to distribution or, unless the
Depositor otherwise directs, used for payment of redemptions in excess
of the per-Unit amount allocable to Units tendered for redemption.
D. 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 in vest 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 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 definition: (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 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."
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 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. Reference to "Xxxx Xxxxxx Select Equity Trust" is replaced by
"Xxxxxx Xxxxxxx Xxxx Xxxxxx Select Equity Trust".
II.
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
A. The Trust is denominated Xxxxxx Xxxxxxx Xxxx Xxxxxx Select Equity
Trust, Strategic Growth Large Cap Portfolio 99-1 (the "Strategic 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 Sections 2.03 and
9.01 of the Basic Agreement is for the Strategic Trust.
E. A Unit is hereby declared initially equal to 1/ th for the
Strategic 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. The Depositor's Annual Portfolio Supervision Fee shall be a
maximum of $0.25 per 100 Units.
K. The Trustee's Annual Fee as defined in Section 6.04 of the
Indenture shall be $ per 100 Units.
L. For a Unit Holder to receive "in-kind" distribution during the
life of the Trust other than in connection with a rollover, such Unit
Holder must tender at least 25,000 Units for redemption. On the In-Kind
Date there is no minimum amount of Units that a Unit Holder must tender in
order to receive an "in-kind" distribution.
M. The Indenture is amended to provide that the period during which
the Trustee shall liquidate the Trust Securities shall not exceed 14
business days commencing on the first business day following the In-Kind
Date.
(Signatures and acknowledgments on separate pages)
