EQUITY SECURITIES TRUST, SERIES 16
SIGNATURE SERIES, ZACKS ALL-STAR ANALYSTS TRUST III
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement (the "Agreement") dated
February 3, 1998 between Xxxxx & Xxxx Distributors, Inc., as Depositor and The
Chase Manhattan Bank, as Trustee, sets forth certain provisions in full and
incorporates other provisions by reference to the document entitled "Equity
Securities Trust, Series 6, Signature Series, Gabelli Entertainment and Media
Trust, and Subsequent Series, Trust Indenture and Agreement" dated November 16,
1995 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 Depositor wishes 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 Sections 2.1 and 2.6 of the Indenture; and
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the Depositor 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 sections of the Indenture hereby are
amended as follows:
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(a) All references to "The Chase Manhattan Bank
(National Association)" are replaced with "The Chase Manhattan
Bank".
(b) Notwithstanding any provision of the Indenture to the
contrary, ownership of Units of this series of Equity Securities Trust shall not
be certificated and shall be evidenced solely by registration on the transfer
books of the Trustee, and the registered holder of uncertificated Units shall
have all of the rights and obligations (excluding the right to the issuance of a
Certificate) specified for a registered Certificateholder under the Indenture.
The Depositor and the Trustee shall cause all Units of the Trust issued to the
Depositor (upon both the initial deposit and any deposits of Additional
Securities pursuant to Section 2.6) to be deposited at The Depository Trust
Company ("DTC") and to be credited there to the account of the Depositor. On and
after such deposit, for all purposes under the Indenture and Agreement, the sole
registered holder of Units of the Trust shall be DTC, or its nominee, unless and
until DTC has notified the Trustee and the Depositor that it is no longer
willing to act as depository with respect to the Units. Accordingly, so long as
DTC, or its nominee, is the registered owner of the Trust Units, beneficial
ownership of Units may only be maintained by or through a participant in DTC and
shall be subject to the rules and operating procedures of DTC as in effect from
time to time. The Trustee shall not be liable for any loss or liability
resulting from the actions of DTC as registered holder and depository of the
Units.
(c) Sections 1.2 and 2.4 and any reference herein to the
issuance of Certificates shall be deleted.
(d) Section 2.3 shall be amended by adding after the words
"has registered on the registration books of the Trust the ownership by" the
words "the Depositor of such Units or, if requested by the Depositor, the
ownership by."
(e) Paragraph (a) of Section 2.6 shall be amended to read in
its entirety as follows:
"Section 2.6 Deposit of Additional Securities.
(a) Subject to the requirements set forth below in
this Section, the Depositor may, on any Business
Day (the "Trade Date"), subscribe for Additional
Units as follows:
(1) Prior to the Evaluation Time on the Trade Date,
the Depositor shall provide notice (the "Subscription
Notice") to the Trustee, by telecopy or by written
communication, of the Depositor's intention to
subscribe for Additional Units. The Subscription
Notice shall identify the Additional
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Securities to be acquired (unless such Additional
Securities are a precise replication of the then
existing portfolio) and shall either (i) specify the
quantity of Additional Securities to be deposited by
the Depositor on the settlement date for such
subscription or (ii) instruct the Trustee to purchase
Additional Securities with an aggregate value as
specified in the Subscription Notice.
(2) Promptly following the Evaluation Time on such
Business Day, the Depositor shall verify with the
Trustee, by telecopy, the number of Additional Units
to be created.
(3) Not later than the time on the settlement date
for such subscription when the Trustee is to deliver
the Additional Units created thereby (which time
shall not be later than the time by which the Trustee
is required to settle any contracts for the purchase
of Additional Securities entered into by the Trustee
pursuant to the instruction of the Depositor referred
to in subparagraph (1) above), the Depositor shall
deposit with the Trustee (i) any Additional
Securities specified in the Subscription Notice (or
contracts to purchase such Additional Securities
together with cash or a letter of credit in the
amount necessary to settle such contracts) or (ii)
cash or a letter of credit in the amount equal to the
aggregate value of the Additional Securities
specified in the Subscription Notice, together with,
in each case, Cash as defined below. "Cash" means, as
to the Principal Account, cash or other property
(other than Securities) on hand in the Principal
Account or receivable and to be credited to the
Principal Account as of the Evaluation Time on the
Business Day preceding the Trade Date (other than
amounts to be distributed solely to persons other
than persons receiving the distribution from the
Principal Account as holders of Additional Units
created by the deposit), and, as to the Income
Account, cash or other property (other than
Securities) received by the Trust as of the
Evaluation Time on the Business Day preceding the
Trade Date or receivable by the Trust in respect of
dividends or other distributions declared but not
received as of the Evaluation Time on the Business
Day preceding the Trade Date, reduced by the amount
of any cash or other property received or receivable
on any Security allocable (in
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accordance with the Trustee's calculation of the
monthly distribution from the Income Account pursuant
to Section 3.5) to a distribution made or to be made
in respect of a Record Date occurring prior to the
Trade Date. Each deposit made during the 90 days
following the deposit made pursuant to Section 2.1
hereof shall replicate, to the extent practicable, as
specified in subparagraph (b), the Original
Proportionate Relationship. Each deposit made after
the 90 days following the deposit made pursuant to
Section 2.1 hereof (except for deposits made to
replace Failed Securities if such deposits occur
within 20 days from the date of a failure occurring
within such initial 90 day period) shall maintain
exactly the proportionate relationship existing among
the Securities as of the expiration of such 90 day
period. Each such deposit shall exactly replicate
Cash.
(4) On the settlement date for a subscription, the
Trustee shall, in exchange for the Securities and
cash or letter of credit described above, issue and
deliver to or on the order of the Depositor the
number of Units verified by the Depositor with the
Trustee. No Unit to be issued pursuant to this
paragraph shall be issued or delivered unless and
until Securities, cash or a letter of credit is
received in exchange therefor and no person shall
have any claim to any Unit not so issued and
delivered or any interest in the Trust in respect
thereof.
(5) Each deposit of Additional Securities, shall be
listed in a Supplementary Schedule to an Addendum to
the Reference Trust Agreement stating the date of
such deposit and the number of Additional Units being
issued therefor. The Trustee shall acknowledge in
such Addendum the receipt of the Deposit and the
number of Additional Units issued in respect thereof.
The Additional Securities shall be held, administered
and applied by the Trustee in the same manner as
herein provided for the Securities.
(6) The acceptance of Additional Units by the
Depositor in accordance with the provisions of
paragraph (a) of this Section shall be deemed a
certification by the Depositor that the deposit or
purchase of Additional Securities associated
therewith complies with the conditions of this
Section 2.06.
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(7) Notwithstanding the preceding, in the event that
the Sponsor's Subscription Notice shall instruct the
Trustee to purchase Additional Securities in an
amount which, when added to the purchase amount of
all other unsettled contracts entered into by the
Trustee, exceeds 25% of the value of the Securities
then held (taking into account the value of contracts
to purchase Securities only to the extent that there
has been deposited with the Trustee cash or an
irrevocable letter of credit in an amount sufficient
to settle their purchase), the Sponsor shall deposit
with the Trustee concurrently with the Subscription
Notice such that, when added to 25% of the value of
the Securities then held (determined as above) the
aggregate value shall be not less than the purchase
amount of the securities to be purchased pursuant to
such Subscription Notice."
(f) Section 3.1 is hereby amended by deleting the phrase
provided, however, the Trust shall not bear such expenses in excess of the
amount shown in the Statement of Condition included in the Prospectus, and any
such excess shall be borne by the Depositor".
(g) Section 3.5 is hereby amended by inserting the phrase "or
Income" in the second sentence of the sixth paragraph after the words "The
Trustee shall not be required to make a distribution from the Principal..."
(h) Section 3.14 is hereby amended by inserting the phrase
"including, but not limited to securities received as a result of a spin-off" in
the first sentence after the words "Any property received by the Trustee after
the initial date of Deposit in a form other than cash or additional shares of
the Securities listed on Schedule A..."
(i) Section 9.2 is hereby amended by replacing the phrase "60
business days" with "30 days" in the first sentence of the sixth paragraph.
(j) All references to "Xxxxx & Xxxx Distributors L.P.". are
replaced with "Xxxxx & Tang Distributors, Inc."
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
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317036.1
specified in Part II of this Reference Trust Agreement ("Additional Closings").
The Depositor and Trustee hereby agree that their respective representations,
agreements and certifications contained in the Closing Memorandum dated February
3, 1998, 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 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 Equity Securities Trust (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 15,400.
(c) For the purposes of the definition of Unit in item (22) of
Section 1.1, the fractional undivided interest in and ownership of the Trust
initially is 1/15400 as of the date hereof.
(d) The term Record Date shall mean the fifteenth day of June
and December commencing on June 15, 1998.
(e) The term Distribution Date shall mean the last business
day of June and December commencing on June 30, 1998.
(f) The First Settlement Date shall mean February 6, 1998.
(g) For purposes of Section 6.1(g), the liquidation amount is
hereby specified to be 40% of the aggregate value of the Securities at the
completion of the Deposit Period.
(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
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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 $.90 per 100 Units:
rate per 100 units number of Units outstanding
$0.90 5,000,000 or less
$0.84 5,000,001 - 10,000,000
$0.78 10,000,001 - 20,000,000
$0.66 20,000,001 or more
(i) For purposes of Section 7.4, the Depositor's maximum
annual supervisory fee is hereby specified to be $.25 per 100 Units outstanding.
(j) The Termination Date shall be May 14, 1999 or the earlier
disposition of the last Security in the Trust.
(k) The fiscal year for the Trust shall end on December 31 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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THE CHASE MANHATTAN BANK
Trustee
By: /s/ XXXXXXX XXXXXXX
-------------------
Vice President
(SEAL)
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On this 28th day of January, 1998, 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 (s)he signed his/her name thereto by like authority.
/s/ ADA XXXX XXXX
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Notary Public
ADA XXXX XXXX
NOTARY PUBLIC, State of New York
No. 4864106
Qualified in New York County
Commission Expires 6/30/98
315855.1
XXXXX & TANG DISTRIBUTORS, INC.
Depositor
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Executive Vice President
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On this 29th day of January, 1998, before me personally appeared Xxxxx
X. 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/ XXXXXX XXXXXX
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Notary Public
XXXXXX XXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in the County of New York
Term Expires 8/31/98
