Exhibit 4.2
XXXXXX XXXXXXX XXXX XXXXXX SELECT EQUITY TRUST
SELECT GLOBAL SERIES 99-1
SELECT GLOBAL 30 PORTFOLIO 99-1
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated December 31, 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 "Xxxxxx Xxxxxxx Xxxx Xxxxxx Select Equity Trust, Trust
Indenture and Agreement" (the "Basic Agreement") dated September 30, 1993 as
amended on December 30, 1997. 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
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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.
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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 3.14 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 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 prospec-
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tus 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 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
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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 following new Section 3.15 is added:
Section 3.15. Foreign Exchange Transactions; Reclaiming Foreign Taxes.
(a) For any Trust holding Securities denominated in a currency other than
U.S. dollars, the Depositor shall direct the Trustee with respect to the
circumstances under which foreign exchange transactions are to be entered
into and calculations under this Indenture are to be made, in order to
convert amounts receivable in respect of the Securities in foreign
currencies into U.S. dollars.
(b) The Trustee shall take such reasonable action as the Depositor
shall direct or, if not so directed, use reasonable efforts to reclaim or
recoup any amounts of non-U.S. tax paid by the Trust or withheld from
income received by the Trust to which the Trust may be entitled as a
refund.
M. The following paragraphs are inserted after the first paragraph in
Section 4.01:
"With respect to foreign securities, each security
listed on a securities exchange will be valued at
the last closing sale price on the relevant stock
exchange or if no such price exists at the closing
offer price thereof.
If the Trust holds securities denominated in a
currency other than U.S. dollars, the evalua-
tions shall be converted to U.S. dollars based,
during the initial offering period, on the of-
fering side of the relevant currency exchange
rate, and, subsequent to such period, on the bid
side of the relevant exchange rate, including the
cost of a forward foreign exchange contract
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in the relevant currency to correspond to the
Trustee's settlement requirement for redemption
requests as quoted to the Trustee by one or more
banks designated by the Depositor, unless the
Security is in the form of an American depository
share or receipt, in which case the evaluations
shall be based upon the U.S. dollar prices in the
market for American depository shares or receipts
(unless the Trustee deems such prices
inappropriate as a basis for valuation)."
N. Reference to "Xxxx Xxxxxx Select Equity Trust" is replaced by
"Xxxxxx Xxxxxxx Xxxx Xxxxxx 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 Xxxx Xxxxxx Select Equity
Trust, Select Global Series 99-1, Select Global 30 Portfolio 99-1 (the
"Select 30 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 30 Trust.
E. A Unit is hereby declared initially equal to 1/25,000.
F. The term "In-Kind Distribution Date" shall mean March 14, 2000.
G. The term "Record Dates" shall mean July 1, 1999 and April 3,
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2000 and such other date as the Depositor may direct.
H. The term "Distribution Dates shall mean July 15, 1999,
and April 10, 2000, and such other date as the Depositor may direct.
I. The term "Termination Date" shall mean April 3, 2000.
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 $.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.
(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.
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