XXXXXX XXXXXXX SELECT EQUITY TRUST
THE COMPETITIVE EDGE BEST IDEAS PORTFOLIO SERIES 2001-4
This Reference Trust Agreement dated , 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 "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 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
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 3.12 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 3.12 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.
K. Section 3.12 shall be added as follows:
Section 3.12. 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. Reference to "Xxxxxx Xxxxxxx Xxxx Xxxxxx Select Equity Trust"
is replaced by "Xxxxxx Xxxxxxx Select Equity Trust".
M. Reference to "Xxxx Xxxxxx Xxxxxxxx Inc." is replaced by
"Xxxxxx Xxxxxxx XX Inc."
N. 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.
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
The Competitive Edge Best Ideas Portfolio Series 2001-4 (the
"Competitive Edge 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 for the Competitive Edge Trust.
E. A Unit is hereby declared initially equal to 1/ th
for the Competitive Edge 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 -- Xxxxxx Xxxxxxx Select Equity
Trust The Competitive Edge Best Ideas Portfolio Series 2001-4-- 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)
