Exhibit 4.2
XXXXXX XXXXXXX SELECT EQUITY TRUST
FINANCIAL SERVICES PORTFOLIO 2001-2
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated , 2001 between XXXXXX XXXXXXX XX
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 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
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 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 Select Equity Trust
Financial Services Portfolio 2001-2 (the "Financial Services 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 mean Xxxxxx Xxxxxxx XX Inc.
D. The aggregate number of Units referred to in Sections 2.03 and 9.01
of the Basic Agreement is for the Financial Services Trust.
E. A Unit is hereby declared initially equal to 1/ th for the
Financial Services 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)