XXXXXX XXXXXXX SELECT EQUITY TRUST
SELECT TURNAROUND FOCUS LIST SERIES 2001
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated September 20, 2001 between XXXXXX
XXXXXXX XX 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 "Xxxxxx Xxxxxxx Xxxx Xxxxxx Select Equity Trust, Trust
Indenture and Agreement" (the "Basic Agreement") dated September 30, 1993 as
amended on December 30, 1997. 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. 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 of decreased through a reverse split thereof, as
directed by the Depositor, which revised number of Units shall be recorded
by Trustee on its books.
C. 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".
D. Article III, entitled "Administration of Trust", Section 3.01
Initial Cost shall be amended as follows:
Section 3.01 Initial Cost shall be amended to substitute the following
language:
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 Unit Holders, PROVIDED, HOWEVER,
that, to the extent all of such costs are not borne by Unit Holders, the
amount of such costs not borne by Unit Holders 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 di-
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rected 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, 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.
E. 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 ex-
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ceed 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."
F. 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,".
G. 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.
H. 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.
I. 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
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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.
J. Section 3.06B(3) shall be amended by adding the following:
"and any Deferred Sales Charge paid".
K. 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.
L. 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
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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.
M. Reference to "Xxxx Xxxxxx Select Equity Trust" is replaced
by "Xxxxxx Xxxxxxx Select Equity Trust".
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 Select Turnaround Focus List Series 2001 (the "Focus List
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 25,831 for the Focus List Trust.
E. A Unit is hereby declared initially equal to
1/25,831th for the Focus List Trust.
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F. The term "In-Kind Distribution Date" shall mean December 23,
2002.
G. The term "Record Dates" shall mean June 3, 2002, and
January 10, 2003 and such other date as the Depositor may
direct.
H. The term "Distribution Dates shall mean June 17, 2002 and
on or about January 17, 2003 and such other date as the
Depositor may direct.
I. The term "Termination Date" shall mean January 10, 2003.
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 $0.72 per 100 Units.
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 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.
