XXXX XXXXXX SELECT EQUITY TRUST
SELECT GLOBAL SERIES 97-4
SELECT GLOBAL 30 PORTFOLIO 97-4
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated June 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:
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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 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
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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. Treasury notes or bills (which shall be held until the
maturity thereof) each of which matures prior to the earlier
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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 prospectus for a Trust. Such
amount shall be withdrawn from the
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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 the Redemption Date,
withhold from the Redemption Price
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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 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
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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)."
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
Global Series 97-4, Select Global 30 Portfolio 97-4 (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 September 11,
1998.
G. The term "Record Dates" shall mean October 1, 1997, January 1,
1998, April 1, 1998 and October 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
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October 15, 1998 and such other date as the Depositor may direct.
I. The term "Termination Date" shall mean October 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 $2.25 per 100 Units.
L. For a Unit Holder to receive "in-kind" distribution, such Unit
Holder must tender Units with a value of at least $500,000 for redemption,
either during the life of the Trust, or at its termination.
(Signatures and acknowledgments on separate pages)
The Schedule of Portfolio Securities in the prospectus included in
this Registration Statement is hereby incorporated by reference herein as
Schedule A hereto.
