XXXXXX XXXXXXX XXXX XXXXXX SELECT EQUITY TRUST
FINANCIAL SERVICES PORTFOLIO 2001-1
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated March 14, 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:
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 Financial Services Portfolio 2001-1 (the "Financial Services
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 24,907 for the Financial
Services Trust.
E. A Unit is hereby declared initially equal to 1/24,907th
for the Financial Services Trust.
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F. The term "In-Kind Distribution Date" shall mean March 11, 2003.
G. The term "Record Dates" shall mean September 1, 2001, March 1,
2002, September 1, 2002 and March 31, 2003 and such other date as the
Depositor may direct.
H. The term "Distribution Dates shall mean September 15, 2001,
March 15, 2002, September 15, 2002 and on or about April 7, 2003 and such
other date as the Depositor may direct.
I. The term "Termination Date" shall mean March 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 $.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.
