Exhibit 4.2
XXXX XXXXXX SELECT EQUITY TRUST
SELECT 10 INDUSTRIAL PORTFOLIO 98-3
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated April 30, 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 "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 incorpo-
rated by reference constitute a single instrument (the
"Indenture").
WITNESSETH THAT:
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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 incorpo-
rated 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 in-
strument 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 Securi-
ties 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 deter-
mine".
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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 instruc-
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",
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 substi-
tute 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, Registra-
tion Statement and other documents relating
to the Trust, Federal and State registra-
tion fees and costs, the initial fees and
expenses of the Trustee, legal and auditing
expenses and other out-of-pocket organiza-
tional 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 sen-
tence 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 instru-
ments selected by the Depositor which will include only
negotiable certificates of deposit or time deposits of do-
mestic banks which are members of the Federal Deposit In-
surance Corporation and which have, together with their
branches or subsidiaries, more than $2 billion in total
assets, except that certificates of deposit or time depos-
its of smaller domestic banks may be held provided the de-
posit does not exceed the insurance coverage on the in-
strument (which currently is $100,000), and provided fur-
ther 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 ma-
turity thereof) each of which matures prior to the ear-
lier 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 ex-
penses) 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 RE-
TENTION AND VOTING. In the event the Trustee is no-
tified 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, reorganiza-
tion, 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 ac-
tion, as appropriate, so as to insure that the secu-
rities 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, reorgani-
zation, 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 De-
positor 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 pro-
visions of Section 3.14 hereof, as set forth in the pro-
spectus for a Trust. Definitions following this defini-
tion (9) shall be renumbered.
H. Section 3.05 is hereby amended to add the fol-
lowing 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 pursu-
ant to Section 3.14 the amount of the Deferred Sales
Charge payable on each such date as stated in the pro-
spectus 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 fol-
lowing 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 pro-
spectus 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 De-
ferred 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 De-
ferred Sales Charge payment or if the balances in the
Income and Principal Accounts are insufficient to
make any such withdrawal, the Trustee shall, as di-
rected 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 di-
rections 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 Secu-
rity, 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-
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 Eq-
uity Trust, Select 10 Industrial Portfolio 98-2 (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, 1999.
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G. The term "Record Dates" shall mean October 1,
1998, January 1, 1999, April 1, 1999 and July 1, 1999 and
such other date as the Depositor may direct.
H. The term "Distribution Dates shall mean
October 15, 1998, January 15, 1999, April 15, 1999 and on or about
July 8, 1999 and such other date as the Depositor may di-
rect.
I. The term "Termination Date" shall mean
July 1, 1999.
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 $.72 per 100 Units.
L. For a Unit Holder to receive an "in-kind" dis-
tribution during the life of the Trust, such Unit Holder must
tender at least 25,000 Units for redemption. There is no mini-
mum 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.
M. The Indenture is amended to provide that the pe-
riod during which the Trustee shall liquidate the Trust Securi-
ties 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 prospec-
tus included in this Registration Statement is hereby incorpo-
rated by reference herein as Schedule A hereto.
