XXXXXX XXXXXXX SELECT EQUITY TRUST
TELECOMMUNICATIONS PORTFOLIO 2001-3
REFERENCE TRUST AGREEMENT
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 Telecommunications Portfolio 2001-3 (the
"Telecommunications 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 Telecommunications Trust.
E. A Unit is hereby declared initially equal to
1/ th for the Telecommunications Trust.
F. The term "In-Kind Distribution Date" shall mean
, 2002.
G. The term "Record Dates" shall mean ,
2001, , 2001, , 2002 and ,
2002 and such other date as the Depositor may direct.
H. The term "Distribution Dates shall mean
, 2001, , 2001, , 2002 and
, 2002 and such other date as the Depositor may direct.
I. The term "Termination Date" shall mean ,
2002.
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 $ per 100 Units.
L. For a Unit Holder to receive "in-kind" distribution during the
life of the Trust other than in connection with a rollover, such Unit Holder
must tender at least 25,000 Units for redemption. On the In-Kind Date there is
no minimum amount of Units that a Unit Holder must tender in order to receive an
"in-kind" distribution.
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)
