Exhibit 4.2
XXXX XXXXXX SELECT EQUITY TRUST
SELECT 10 INDUSTRIAL PORTFOLIO 97-1
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated , 1996 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
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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:
(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 Certificates,
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 sentence 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 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
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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".
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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
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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 97-1 (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 Sections 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 97-1 -- the form of Certificate set forth
in this Indenture shall be appropriately modified to reflect the title of this
Series and such of the
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Special 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" distribution, 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)
