Exhibit 4.2
XXXX XXXXXX SELECT EQUITY TRUST
XXXXXX XXXXXXX XXXX XXXXXX COMPETITIVE EDGE BEST IDEAS
PORTFOLIO APRIL 1998
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated April 3, 1998
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, as
amended. 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 Securi-
ties 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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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:
(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 instru ments
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 ex-
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ceed 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 betaken 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 3.14 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
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a Trust, the Trustee shall pay the account created pursuant
to Section 3.14 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 3.14 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, 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
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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. The Distribution Agency Agreement is amended to
be applicable to the Xxxx Xxxxxx Select Equity Trust, Xxxxxx
Xxxxxxx Xxxx Xxxxxx Competitive Edge Best Ideas Portfolio
series.
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, Xxxxxx Xxxxxxx Xxxx Xxxxxx Competitive Edge Best Ideas
Portfolio April 1998 (the "Best Ideas 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
Best Ideas Trust.
E. A Unit is hereby declared initially equal to
1/25,000th for the Best Ideas Trust.
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F. The term "In-Kind Distribution Date" shall mean
December 10, 1998.
G. The term "Record Dates" shall mean September 1,
1998, March 1, 1999, and December 31, 1999 and such other date
as the Depositor may direct. (Such dates are set forth for the
purposes of distribution to Unit Holders. Trust expenses shall
be paid quarterly.)
H. The term "Distribution Dates shall mean September
15, 1998, March 15, 1999, and on or about January 7, 2000 and such
other date as the Depositor may direct. (Such dates are set
forth for the purposes of distribution to Unit Holders. Trust
expenses shall be paid quarterly.)
I. The term "Termination Date" shall mean December 31,
1999.
J. The Depositor's Annual Portfolio Supervision Fee
shall be a maximum of $.25 per 100 Units.
K. The Trustee's Annual Fee as defined in Section
6.04 of the Indenture shall be $.80 per 100 Units.
L. For a Unit Holder to receive an "in-kind"
distribution during the life of the Trust, such Unit Holder must
tender at least 25,000 Units for redemption. There is no minimum
amount of Units that a Unit Holder must tender in order to receive
an "in-kind" distribution on the In-Kind Date or in connection with
a rollover.
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.
