Exhibit 4.2
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XXXX XXXXXX SELECT EQUITY TRUST
SELECT 10 INDUSTRIAL PORTFOLIO 97-3
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated April 30, 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 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".
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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 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 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
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
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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.
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 97-3 (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 June 11, 1998.
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G. The term "Record Dates" shall mean October 1, 1997, January 1,
1998, April 1, 1998 and July 1, 1998 and such other date as the Depositor
may direct.
H. The term "Distribution Dates shall mean October 15, 1997,
January 15, 1998, April 15, 1998 and on or about July 8, 1998 and such other
date as the Depositor may direct.
I. The term "Termination Date" shall mean July 1, 1998.
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.
