Exhibit 4.2
XXXX XXXXXX SELECT EQUITY TRUST
SELECT GLOBAL SERIES 97-5
SELECT GLOBAL 30 PORTFOLIO 97-5
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated , 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".
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
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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 deter-
mine".
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 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,".
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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, reorganiza-
tion, 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)."
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 97-5, Select Global 30 Portfolio 97-5 (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.
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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. For purposes of this Series _ Xxxx Xxxxxx Select Equity
Trust, Select Global Series 97-5, Select Global 30 Portfolio 97-5 _
the form of Certificate set forth in this Indenture shall be
appropriately modified to reflect the title of this Series and such
of the Special Terms and Conditions of Trust set forth herein as may
be appropriate.
K. The Depositor's Annual Portfolio Supervision Fee shall be a
maximum of $0.25 per 100 Units.
L. The Trustee's Annual Fee as defined in Section 6.04 of the
Indenture shall be $ per 100 Units.
M. 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.
(Signatures and acknowledgments on separate pages)
