XXXXXX XXXXXXX SELECT EQUITY TRUST
HEALTHCARE PORTFOLIO 2001-3
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated July 12, 2001 between XXXXXX
XXXXXXX XX INC., as Depositor, and The Chase Manhattan Bank, as Trustee, sets
forth certain provisions in full and incorporates other provisions by reference
to the document entitled "Sears Equity Investment Trust, Trust Indenture and
Agreement" dated January 22, 1991, as amended on March 16, 1993, July 18, 1995
and December 30, 1997 (the "Basic Agreement"). 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 in the following
manner:
A. Article I, Section 1.01, paragraph (29) defining "Trustee" shall
be amended as follows:
"'Trustee' shall mean The Chase Manhattan Bank, or any successor
trustee appointed as hereinafter provided."
B. Reference to United States Trust Company of New York in its
capacity as Trustee is replaced by The Chase Manhattan Bank
throughout the Basic Agreement.
C. Reference to "Xxxx Xxxxxx Select Equity Trust" is replaced by
"Xxxxxx Xxxxxxx Select Equity Trust".
D. Section 3.01 is amended to substitute the following:
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 directed 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. Reference to "Xxxx Xxxxxx Xxxxxxxx Inc." is replaced by "Xxxxxx
Xxxxxxx XX Inc."
F. 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
Healthcare Portfolio 2001-3 (the "Healthcare 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 25,149 for the Healthcare Trust.
E. A Unit is hereby declared initially equal to 1/25,149th
for the Healthcare Trust.
F. The term "In-Kind Distribution Date" shall mean July 11,
2003
G. The term "Record Dates" shall mean January 1, 2002, June 1,
2002, January 1, 2003 and July 31, 2003 and such other date as the
Depositor may direct.
H. The term "Distribution Dates" shall mean January 15, 2002,
June 15, 2002, January 15, 2003 and on or about August 7, 2003 and such
other date as the Depositor may direct.
I. The term "Termination Date" shall mean July 31, 2003.
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 $1.00 per 100 Units if the greatest number of
Units outstanding during the period is 10,000,000 or more; $1.06 per
100 Units if the greatest number of Units outstanding during the period
is between 5,000,000 and 9,999,999; and $1.10 per 100 Units if the
greatest number of Units outstanding during the period is 4,999,999 or
less.
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. Paragraph (b)(ii) of Section 9.03 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)
The Schedule of Portfolio Securities in the prospectus included in this
Registration Statement is hereby incorporated by reference herein as Schedule A
hereto.
