XXXXXX XXXXXXX XXXX XXXXXX SELECT EQUITY TRUST
SELECT 10 INDUSTRIAL PORTFOLIO 2001-2
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated February 28, 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 "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:
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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. 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 Select 10 Industrial Portfolio 2001-2 (the "Select 10 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.
D. The aggregate number of Units referred to in Sections 2.03 and
9.01 of the Basic Agreement is 25,014 for the Select 10 Trust.
E. A Unit is hereby declared initially equal to 1/25,014th for the
Select 10 Trust.
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F. The term "In-Kind Distribution Date" shall mean April 11, 2002.
G. The term "Record Dates" shall mean October 1, 2001, January 1,
2002 and May 1, 2002 and such other date as the Depositor may direct.
H. The term "Distribution Dates shall mean October 15, 2001,
January 15, 2002 and on or about May 8, 2002 and such other date as the
Depositor may direct.
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 $0.72 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.
