XXXX XXXXXX SELECT EQUITY TRUST
SELECT GLOBAL SERIES 97-5
SELECT GLOBAL 30 PORTFOLIO 97-5
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated September 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 In-
denture and Agreement" (the "Basic Agreement") dated Septem-
ber 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 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".
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
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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 Cer-
tificates, Indenture, Registration Statement and
other documents relating to the Trust, Federal
and State registration fees and costs, the ini-
tial fees and expenses of the Trustee, legal and
auditing expenses and other out-of-pocket organ-
izational 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 in-
vest the proceeds of any sale of Securities not required
for the redemption of Units in eligible money market in-
struments 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 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-
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 earlier
of the next following Distribution Date or 90 days after
receipt, the principal thereof and interest thereon (to the
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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 Reten-
tion 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 De-
positor 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 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
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 prospec-
tus for a Trust. Such amount shall be withdrawn from the
Principal Account from the amounts therein designated for
such purpose
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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 pro-
spectus 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 Ac-
counts are insufficient to make any such withdrawal, the
Trustee shall, as directed by the Depositor, either ad-
xxxxx funds, if so agreed to by the Trustee, in an amount
equal to the proposed withdrawal and be entitled to xxxx-
bursement 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 dis-
tributed in kind and shall contain, if the Trustee is di-
rected 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 De-
positor shall purchase such Unit pursuant to the terms of
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Section 5.02 hereof, the Depositor shall pay the Redemp-
tion Price for such Unit less the unpaid portion of the
Deferred Sales Charge. The Depositor may at any time in-
struct 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; Re-
claiming Foreign Taxes. (a) For any Trust holding Securi-
ties 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 Inden-
ture are to be made, in order to convert amounts receiv-
able 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 re-
ceived 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 secu-
rity listed on a securities exchange will be
valued at the last closing sale price on the
relevant stock exchange or if no such price ex-
ists at the closing offer price thereof.
If the Trust holds securities denominated in a
currency other than U.S. dollars, the evalua-
tions shall be converted to U.S. dollars based,
during the initial offering period, on the of-
fering 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 deposi-
tory share or receipt, in which case the
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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 Eq-
uity 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 In-
denture, 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
1/25,000th.
F. The term "In-Kind Distribution Date" shall mean
October 13, 1998.
G. The term "Record Dates" shall mean January 1, 1998,
April 1, 1998, July 1, 1998, and November 2, 1998
and such other date as the Depositor may direct.
H. The term "Distribution Dates shall mean January 15, 1998,
April 15, 1998, July 15, 1998 and November 9, 1998
and such other date as the Depositor may direct.
I. The term "Termination Date" shall mean November 2, 1998.
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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" distribu-
tion, 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)
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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
