XXXX XXXXXX SELECT EQUITY TRUST
XXXXXX XXXXXXX XXXX XXXXXX COMPETITIVE EDGE BEST IDEAS
PORTFOLIO OCTOBER 1997
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated October 2, 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 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
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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 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
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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, Xxxxxx Xxxxxxx Xxxx Xxxxxx Competitive Edge Best Ideas
Portfolio October 1997 (the "Best Ideas 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
Best Ideas Trust.
E. A Unit is hereby declared initially equal to
1/25,000th for the Best Ideas Trust.
F. The term "In-Kind Distribution Date" shall mean
June 10, 1999.
G. The term "Record Dates" shall mean March 1, 1998,
September 1, 1998, and June 30, 1999 and such other date
as the Depositor may direct. (Such dates are set forth for purposes
of distribution to Unit Holders. Trust expenses shall be paid
quarterly.)
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H. The term "Distribution Dates shall mean March 15,
1998, September 15, 1998, and on or about July 8, 1999 and
such other date as the Depositor may direct. (Such dates are set
forth for purposes of distribution to Unit Holders. Trust expenses
shall be paid quarterly.)
I. The term "Termination Date" shall mean June 30,
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 $1.50 per 100 Units.
L. For a Unit Holder to receive "in-kind" distribution,
such Unit Holder must tender at least 5,000 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.
