Exhibit 4.2
XXXXXX XXXXXXX SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 2002-1
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated , 2002 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 and July 18,
1995 (the "Basic Agreement"). 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 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 "Xxxxxx Xxxxxxx 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 of 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
Select 5 Industrial Portfolio 2002-1 (the "Select 5 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 for the Select 5 Trust.
E. A Unit is hereby declared initially equal to 1/ th
for the Select 5 Trust.
F. The term "In-Kind Distribution Date" shall mean , 2002.
G. The term "Record Dates" shall mean , 2001, , 2001,
, 2001 and , 2001 and such other date as the Depositor
may direct.
H. The term "Distribution Dates shall mean , 2001,
, 2001, , 2001 and , 2001 and such other
date as the Depositor may direct.
I. The term "Termination Date" shall mean , 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 $ per 100 Units if the greatest number of
Units outstanding during the period is 10,000,000 or more; $ per
100 Units if the greatest number of Units outstanding during the
period is between 5,000,000 and 9,999,999; and $ 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 "in-kind" distribution during the
life of the Trust other than in connection with a rollover, such Unit
Holder must tender at least 25,000 Units for redemption. On the
In-Kind Date there is no minimum amount of Units that a Unit Holder
must tender in order to receive an "in-kind" distribution.
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)
