XXXXXX XXXXXXX XXXX XXXXXX SELECT EQUITY TRUST
THE COMPETITIVE EDGE BEST IDEAS PORTFOLIO SERIES 2000-1
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated January 25, 2000 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 2000-1 (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 24,982 for the Best Ideas Trust.
E. A Unit is hereby declared initially equal to 1/24,982th
for the Best Ideas Trust.
F. The term "In-Kind Distribution Date" shall mean
April 5, 2001.
G. The term "Record Dates" shall mean September 1, 2000, and
April 26, 2001 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 September 15, 2000
and on or about May 3, 2001 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 April 26, 2001.
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.
