XXXXXX XXXXXXX SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 2001-3
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated July 2, 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:
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 Select 5 Industrial Portfolio 2001-3 (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 24,927 for
the Select 5 Trust.
E. A Unit is hereby declared initially equal to
1/24,927th for the Select 5 Trust.
F. The term "In-Kind Distribution Date" shall mean
September 11, 2002.
G. The term "Record Dates" shall mean February 1, 2002,
May 1, 2002, and October 1, 2002 and such other date as the
Depositor may direct.
H. The term "Distribution Dates" shall mean February 15,
2001, May 15, 2002 and on or about October 8, 2002 and such other
date as the Depositor may direct.
I. The term "Termination Date" shall mean October 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 $0.90 per 100 Units if the greatest number of Units
outstanding during the period is 10,000,000 or more; $0.96 per 100 Units
if the greatest number of Units outstanding during the period is between
5,000,000 and 9,999,999; and $1.00 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.
