XXXX XXXXXX SELECT EQUITY TRUST
SELECT 10 INDUSTRIAL PORTFOLIO 97-6
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated October 31, 1997 between
XXXX XXXXXX XXXXXXXX INC., as Depositor, and The Bank of New York, as Trus-
tee, sets forth certain provisions in full and incorporates other provi-
sions by reference to the document entitled "Xxxx Xxxxxx Select Equity
Trust, Trust Indenture and Agreement" (the "Basic Agreement") dated Septem-
ber 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 ex-
tent 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".
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C. Article III, entitled "Administration of Trust", Sec-
tion 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 lan-
guage before the phrase "PROVIDED, HOWEVER":
"With respect to the Trust, the cost of the prepa-
ration, printing and execution of the Certificates, In-
denture, Registration Statement and other documents re-
lating 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 Securi-
ties not required for the redemption of Units in eligible money market
instruments selected by the Depositor which will include only negotia-
ble 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 bil-
lion in total assets, except that certificates of deposit or time de-
posits 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. Treas-
ury notes or bills (which shall be held until the maturity thereof)
each of which matures prior to the earlier of the next following Dis-
tribution Date or 90 days after receipt, the principal thereof and in-
terest thereon (to the extent such interest is not used to pay Trust
expenses) to be distributed on the earlier of the 90th day after re-
ceipt 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, reorganiza-
tion, 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 in-
sure that the securities are voted as closely as possible in the
same manner and in the same general proportion as are the securi-
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ties 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 secu-
rities 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 pay-
able in accordance with the provisions of Section 3.14 hereof, as set
forth in the prospectus for a Trust. Definitions following this defi-
nition (9) shall be renumbered.
H. Section 3.05 is hereby amended to add the following para-
graph 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 3.14 the amount of the De-
ferred Sales Charge payable on each such date as stated in the pro-
spectus for a Trust. Such amount shall be withdrawn from the Princi-
pal 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 3.14 shall be added as follows:
Section 3.14. 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, with-
draw 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 Ac-
count, 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 distrib-
uted to the Depositor. If the Income Account is not designated
as the source of the Deferred Sales Charge payment or if the bal-
ances 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
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reimbursement of such advance upon the deposit of additional mo-
xxxx in the Income Account or the Principal Account, sell Securi-
ties 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 Trus-
tee 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 Redemp-
tion 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 97-6 (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 25,000 for the Select 10 Trust.
E. A Unit is hereby declared initially equal to 1/25,000th for
the Select 10 Trust.
F. The term "In-Kind Distribution Date" shall mean December 11,
1998.
G. The term "Record Dates" shall mean January 1, 1998, April 1,
1998, July 1, 1998 and January 4, 1999 and such other date as the Deposi-
tor may direct.
H. The term "Distribution Dates shall mean January 15, 1998,
April 15, 1998, July 15, 1998 and on or about January 11, 1999 and such
other date as the Depositor may direct.
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I. The term "Termination Date" shall mean January 4, 1999.
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 $1.00 per 100 Units.
L. 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.
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)
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The Schedule of Portfolio Securities in the prospectus included
in this Registration Statement is hereby incorporated by reference herein
as Schedule A hereto.
