XXXXXX XXXXXXX SELECT EQUITY TRUST
SELECT 5 INDUSTRIAL PORTFOLIO 2001-2
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated April 5, 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."
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 2001-2 (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 25,002 for the Select 5 Trust.
E. A Unit is hereby declared initially equal to 1/25,002nd for the
Select 5 Trust.
F. The term "In-Kind Distribution Date" shall mean June 11, 2002.
G. The term "Record Dates" shall mean November 1, 2001, February 1,
2002, and July 1, 2002 and such other date as the Depositor may direct.
H. The term "Distribution Dates" shall mean November 15, 2001,
February 15, 2002 and on or about July 8, 2002 and such other date as the
Depositor may direct.
I. The term "Termination Date" shall mean July 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.
