XXXXXX XXXXXXX SELECT EQUITY TRUST
XXXXX & STEERS REIT PORTFOLIO SERIES 2001-4
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated October 23, 2001 between XXXXXX
XXXXXXX XX INC., as Depositor, Xxxxx & Steers Capital Management Inc., as
Portfolio Supervisor and The Chase Manhattan Bank, as Trustee, sets forth
certain provisions in full and incorporates other provisions by reference to the
document entitled "Sears Equity Investment Trust, Trust Indenture and Agreement"
dated January 22, 1991, as amended on March 16, 1993, July 18, 1995 and December
30, 1997 (the "Basic Agreement"). 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 in the following
manner:
A. Article I, Section 1.01, paragraph (29) defining
"Trustee" shall be amended as follows:
"'Trustee' shall mean The Chase Manhattan Bank, or any successor
trustee appointed as hereinafter provided."
B. Reference to United States Trust Company of New
York in its capacity as Trustee is replaced by The Chase
Manhattan Bank throughout the Basic Agreement.
C. Reference to "Xxxxxx Xxxxxxx Xxxx Xxxxxx Select
Equity Trust" is replaced by "Xxxxxx Xxxxxxx Select Equity
Trust".
D. Section 1.01-Definitions shall be amended to add
the following definition at the end thereof:
"Portfolio Supervisor" of the Trust shall have the meaning assigned to
it in part II of the Reference Trust Agreement.
E. Section 2.03 is amended to add the following to the end of the
first paragraph thereof. The number of Units may be increased through a
split of the Units or decreased through a reverse split thereof, as
directed by the Depositor, which revised number of Units shall be recorded
by Trustee on its books.
F. Section 3.01 is amended to substitute the
following:
SECTION 3.01. INITIAL COST The costs of organizing the Trust and sale
of the Trust Units shall, to the extent of the expenses reimbursable to the
Depositor provided below, be borne by the Trust, PROVIDED, HOWEVER, that,
to the extent all of such costs are not borne by the Trust, the amount of
such costs not borne by the Trust shall be borne by the Depositor and,
PROVIDED FURTHER, HOWEVER, that the liability on the part of the Depositor
under this Section shall not include any fees or other expenses incurred in
connection with the administration of the Trust subsequent to the deposit
referred to in Section 2.01. Upon notification from the Depositor that the
primary offering period is concluded, the Trustee shall withdraw from the
Account or Accounts specified in the Prospectus or, if no Account is
therein specified, from the Principal Account, and pay to the Depositor the
Depositor's reimbursable expenses of organizing the Trust and sale of the
Trust Units in an amount certified to the Trustee by the Depositor. If the
balance of the Principal Account is insufficient to make such withdrawal,
the Trustee shall, as directed by the Depositor, sell Securities identified
by the Depositor, or distribute to the Depositor Securities having a value,
as determined under Section 4.01 as of the date of distribution, sufficient
for such reimbursement. The reimbursement provided for in this Section
shall be for the account of the Unitholders of record at the conclusion of
the primary offering period and shall not be
reflected in the computation of the Unit Value prior thereto. As used
herein, the Depositor's reimbursable expenses of organizing the Trust and
sale of the Trust Units shall include the cost of the initial preparation
and typesetting of the registration statement, prospectuses (including
preliminary prospectuses), the indenture, and other documents relating to
the Trust, SEC and state blue sky registration fees, the cost of the
initial valuation of the portfolio and audit of the Trust, the initial fees
and expenses of the Trustee, Portfolio Consultant fee and legal and other
out-of-pocket expenses related thereto, but not including the expenses
incurred in the printing of preliminary prospectuses and prospectuses,
expenses incurred in the preparation and printing of brochures and other
advertising materials and any other selling expenses. Any cash which the
Depositor has identified as to be used for reimbursement of expenses
pursuant to this Section shall be reserved by the Trustee for such purpose
and shall not be subject to distribution or, unless the Depositor otherwise
directs, used for payment of redemptions in excess of the per-Unit amount
allocable to Units tendered for redemption.
G. Article III, entitled "Administration of Trust",
shall be amended as follows:
Section 3.05(c)- shall be amended by (a) deleting the first two
references to Depositor and replacing each such reference with
Portfolio Supervisor, (b) deleting the provisions of Section 3.05(c)
following the first sentence thereof ending with the word "below" and
(c) adding the following in place of the deleted sentences:
"The Trustee shall pay to the Portfolio Supervisor from
the amount so held pursuant to the immediately preceeding
sentence the amounts the Portfolio Supervisor is entitled
to receive pursuant to Section 8.07."
H. The third through fifth paragraphs of
Section 3.05 shall be amended to provide as follows:
On each Distribution Date or within a reasonable period of time
thereafter, the Trustee shall distribute by mail to each Unit Holder of
record at the close of business on the preceding Record Date at his address
appearing on the registration books of the Trustee such Unit
Holder's income distribution, computed as hereinafter provided, plus such
holder's pro rata share of the cash balance of the Principal Account, each
computed as of the preceding Record Date; provided, however, that funds
credited to the Principal Account in the event of the failure of
consummation of a contract to purchase Securities pursuant to Section 2.01
hereof, funds representing the proceeds of the sale of Securities pursuant
to Section 3.08 hereof, and funds representing the proceeds of the sale of
Securities under Sections 5.02 or 6.04 in excess of the amounts needed for
the purposes of said Sections shall not be distributed until the next
Distribution Date or at such earlier date as shall be determined by the
Trustee. The Trustee shall not be required to make a distribution from the
Principal Amount unless the cash balance on deposit therein available for
distribution shall be sufficient to distribute at least $1.00 per Unit in
the case of Units initially offered at approximately $1,000 or a
proportionately lower amount in the case of Units initially offered at less
that $1,000 (e.g. $.001 per Unit in the case of Units initially offered at
approximately $1.00).
The Trustee shall, as of each Record Date, compute and report to the
Depositor the per-Unit amount of the monthly income distribution to be made
on the next following Distribution Date (the "Monthly Income Distribution")
by (i) estimating the annual income of the Trust for the ensuing twelve
months (by reference to the most recent distributions made on Securities
and any information received by the Trustee with respect to future
dividends or other income), (ii) deducting therefrom the estimated costs
and expenses to be incurred during the twelve-month period for which such
income has been estimated and (iii) dividing the amount so obtained by the
result of 12 multiplied by the number of Units outstanding on such Record
Date. However, unless the Trustee or the Sponsor determines that the
Monthly Income Distribution should be adjusted as provided hereafter, the
amount of the Monthly Income Distribution shall be the amount computed by
the Trustee on the most recent prior, or concurrently occurring, Quarterly
Computation Date (such "Quarterly Computation Date" being the first Record
Date and each Record Date occurring at three-month intervals thereafter).
The Trustee will adjust the amount of the Monthly Income Distribution
computed on each Quarterly Computation Date to reconcile, over the ensuing
three Monthly Income Distributions, any variance between net income and
distributions made during the preceding three months. Notwithstanding
the preceding, the Trustee may reduce the amount of any Monthly Income
Distribution in the event the Trustee or the Sponsor determines that such
adjustment is necessary to avoid, or to respond to, a significant
discrepancy between estimated and actual net income. Notwithstanding the
foregoing, the Trustee may adjust the amount of the Monthly Income
Distribution in order to maintain an average annual cash balance in the
Income Account of $0.
In the event the amount on deposit in the Income Account of the Trust
on a Distribution Date is not sufficient for the payment of the amount of
income to be distributed on the basis of the aforesaid computation, the
Trustee shall advance out of its own funds and cause to be deposited in and
credited to the Income Account such amount as may be required to permit
payment of the income distribution to be made on such Distribution Date and
shall be entitled to be reimbursed, without interest, out of the income
subsequently received on the first Record Date following the date of such
advance on which such reimbursement may be made without reducing the cash
balance of the Income Account to an amount less than that required for the
next ensuing distribution. The Trustee shall have a priority claim on any
dividends or other income received by the Trust to the extent of all
amounts advanced by it pursuant to this paragraph, and such advances shall
be considered a lien on the Trust prior to the interest of Unit Holders.
The amounts to be distributed to each Unit Holder shall be that
per-Unit income distribution and pro rata share of the cash balance of the
Principal Account of the Trust, computed as hereinabove provided, as shall
be represented by the Units owned by such Unit Holder as evidenced by the
record books of the Trustee as of the applicable Record Date.
In computing the distribution to be made to any Unit Holder, fractions
of one cent shall be omitted. After any such distribution, any cash balance
remaining in the Income Account or the Principal Account shall be held in
the same manner as other amounts subsequently deposited in each of such
Accounts, respectively.
I. Section 3.15 shall be amended by adding the
following to the end thereof:
The Depositor represents that the price paid by any Unit holder for
Units acquired through reinvestment of Trust distributions will be reduced
by the aggregate amount of unpaid deferred sales charge at the time of the
purchase to offset any subsequent collection by the Depositor of deferred
sales charge in respect of the Units so acquired.
J. Reference to "Xxxx Xxxxxx Xxxxxxxx Inc." is
replaced by "Xxxxxx Xxxxxxx XX Inc."
K. Article VIII, entitled "Depositor", shall be
amended as follows:
Section 8.07-Compensation shall be amended by deleting such section
and replacing it with the following:
The Portfolio Supervisor shall be paid on a quarterly basis in
arrears on a Record Date beginning with the January 1, 2002
Record Date, as compensation for providing portfolio
supervisory services, an annual fee equal to 0.05% of the
average daily net asset value of the Trust, which fee shall
accrue daily based on the daily net asset value of the Trust
computed pursuant to Section 5.01 (the fee for any day on
which an evaluation under Section 5.01 is not made shall be
based on the last preceding evaluation under such Section).
The Portfolio Supervisor shall also be paid a license fee for
licensing a service mark for use by the Trust determined and
paid as set forth in the previous sentence except that the
license fee shall be an annual fee of 0.10% of the average
daily net asset value of the Trust. Such fees shall be
deducted from the Income and Principal Accounts as provided
in Section 3.05. The Portfolio Supervisor may be removed by
the Depositor at any time upon 30 days written notice and
the Depositor may appoint a succesor portfolio supervisor
(including itself) having qualifications and a rate of
compensation satisfactory to the Depositor and the Trustee.
In connection with any disposition or other action to be
taken in respect of any Security, the Depositor and the
Trustee may rely conclusively on the advice of the
Portfolio Supervisor and shall have no liability for any
loss or depreciation resulting from any action taken in
reliance upon such advice.
The Portfolio Supervisor shall be under no liability to the
Unitholders for any action taken or for refraining from the
taking of any action in good faith pursuant to this
Indenture or for errors in judgment, but shall be liable only
for its own willful misfeasance, bad faith or gross negligence
in the performance of its duties or by reason of its reckless
disregard of its obligations and duites hereunder. The
Portfolio Supervisor may rely in good faith on any paper,
order, notice, list, affidavit, receipt, opinion,
endoresement, assignment, draft or any other document of any
kind prima facie properly executed and submitted to it by the
Trustee, counsel or any other persons pursuant to this
Indenture and in furtherance of its duties.
II.
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
A. The Trust is denominated Xxxxxx Xxxxxxx Select
Equity Trust Xxxxx & Steers REIT Portfolio Series 2001-4
(the "REIT" 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 mean Xxxxxx Xxxxxxx
XX Inc.
D. The aggregate number of Units referred to in
Sections 2.03 and 9.01 of the Basic Agreement is 25,051
for the REIT Trust.
E. A Unit is hereby declared initially equal to
1/25,051th for the REIT Trust.
F. The term "In-Kind Distribution Date" shall mean
October 17, 2003.
G. The term "Record Date" shall mean monthly on the
1st day of each month beginning November 1, 2001.
H. The term "Distribution Dates" shall mean monthly
on the 15th day of each month beginning November 15, 2001.
I. The term "Termination Date" shall mean
December 1, 2003.
J. The "Portfolio Supervisor" shall mean Xxxxx & Steers Capital
Management Inc.
K. The Trustee's annual fee as defined in Section 6.04 of the
Indenture shall be $0.90 per 100 Units if the greatest number of Units
outstanding during the period is 10,000,000 or more; $0.96 per 100 Units
if the greatest number of Units outstanding during the period is between
5,000,000 and 9,999,999; and $1.00 per 100 Units if the greatest number of
Units outstanding during the period is 4,999,999 or less.
L. For a Unit Holder to receive an "in--kind" distribution during the
life of the Trust, such Unit Holder must tender at least 25,000 Units for
redemption. There is no minimum 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 period during which
the Trustee shall liquidate the Trust Securities shall not exceed 30
business days commencing on the first business day following the In-Kind
Date.
(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.
