XXXXXX XXXXXXX XXXX XXXXXX SELECT EQUITY TRUST
THE COMPETITIVE EDGE BEST IDEAS PORTFOLIO SERIES 2001-1
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated January 30, 2001 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
Indenture and Agreement" (the "Basic Agreement") dated September 30, 1993, as
amended. Such provisions as are incorporated by reference constitute a single
instrument (the "Indenture").
WITNESSETH THAT:
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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 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.
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. The Distribution Agency Agreement is amended to be applicable
to the Xxxxxx Xxxxxxx Xxxx Xxxxxx Select Equity Trust, The Competitive
Edge Best Ideas Portfolio series.
N. Reference to "Xxxx Xxxxxx Select Equity Trust" is replaced by
"Xxxxxx Xxxxxxx Xxxx Xxxxxx 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 Xxxx Xxxxxx Select
Equity Trust The Competitive Edge Best Ideas Portfolio Series 2001-1 (the
"Best Ideas 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 xxxx Xxxx Xxxxxx Xxxxxxxx Inc.
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D. The aggregate number of Units referred to in Sections 2.03 and
9.01 of the Basic Agreement is 25,066 for the Best Ideas Trust.
E. A Unit is hereby declared initially equal to 1/25,066th for
the Best Ideas Trust.
F. The term "In-Kind Distribution Date" shall mean April 11, 2002.
G. The term "Record Dates" shall mean October 1, 2001, and May 1,
2002 and such other date as the Depositor may direct. (Such dates are set forth
for the purposes of distribution to Unit Holders. Trust expenses shall be paid
quarterly.)
H. The term "Distribution Dates shall mean October 15, 2001 and on
or about May 8, 2002 and such other date as the Depositor may direct. (Such
dates are set forth for the purposes of distribution to Unit Holders. Trust
expenses shall be paid quarterly.)
I. The term "Termination Date" shall mean May 1, 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 $0.80 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.
