Exhibit 4.2
XXXX XXXXXX SELECT EQUITY TRUST
SELECT 10 INDUSTRIAL PORTFOLIO 97-5
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated , 1997 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 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 instruc-
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tions 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", 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 prepara-
tion, 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 Securi-
ties 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 obliga-
tions 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
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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 Vot-
ing. 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 securi-
ties 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 pay-
able 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 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 3.12 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.
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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 De
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positor 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.
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 97-5 (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 , .
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J. For purposes of this Series -- Xxxx Xxxxxx Select Equity
Trust, Select 10 Industrial Portfolio 97-5 -- the form of Certificate set
forth in this Indenture shall be appropriately modified to reflect the ti-
tle of this Series and such of the 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)
