Exhibit 4.2
XXXXXX XXXXXXX XXXX XXXXXX SELECT EQUITY TRUST
SELECT GLOBAL 30 PORTFOLIO 99-3
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated , 1999
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".
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
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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
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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
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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 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.
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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
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.
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(b) The Trustee shall take such action as the Sponsor
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 evaluations
shall be converted to U.S. dollars based, during the
initial offering period, on the offering 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 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."
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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 30 Portfolio 99-3 (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 for the
Select 30 Trust.
E. A Unit is hereby declared initially equal to
1/ th for the Select 30 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
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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)
