EQUITY OPPORTUNITY TRUST DIVIDEND INCOME VALUE STRATEGY SERIES 2009D TRUST INDENTURE AND AGREEMENT Dated as of August 18, 2009 Incorporating Standard Terms and Conditions of Trust, as amended, Dated as of July 1, 1998, Between UBS FINANCIAL SERVICES...
Exhibit 99.A2
EQUITY OPPORTUNITY TRUST
DIVIDEND INCOME VALUE STRATEGY SERIES 2009D
DIVIDEND INCOME VALUE STRATEGY SERIES 2009D
Dated as of August 18, 2009
Incorporating
Standard Terms and Conditions of Trust, as amended,
Dated as of July 1, 1998,
Dated as of July 1, 1998,
Between
UBS FINANCIAL SERVICES INC.,
as Depositor
as Depositor
and
STATE STREET BANK AND TRUST COMPANY
as Trustee
as Trustee
THIS TRUST INDENTURE AND AGREEMENT dated as of August 18, 2009 between UBS Financial
Services Inc., as Depositor and State Street Bank and Trust Company, as Trustee, which sets forth
certain of its provisions in full and incorporates other of its provisions by reference to a
document entitled “Standard Terms and Conditions of Trust” dated as of July 1, 1998, as amended,
among the parties hereto (hereinafter called the “Standard Terms”), such provisions as are set
forth in full and such provisions as are incorporated by reference constituting a single
instrument.
W I T N E S S E T H T H A T:
WHEREAS, the parties hereto have heretofore or concurrently herewith entered into the Standard
Terms in order to facilitate creation of a series of securities issued under a unit investment
trust pursuant to the provisions of the Investment Company Act of 1940, as amended, and the laws of
the State of New York, each of which series will be composed of redeemable securities representing
undivided interests in a trust fund composed of publicly traded common or preferred stocks issued
by domestic or foreign companies, and, in certain cases, interest-bearing United States Treasury
Obligations (“Treasury Obligations”); and
WHEREAS, the parties hereto desire to reflect the corporate name change effective June 9, 2003
whereby the name “UBS PaineWebber Inc.” was changed to “UBS Financial Services Inc.”; and the
succession of State Street Bank and Trust Company, as Trustee, following the merger of Investors
Financial Services Corporation, the parent company of Investors Bank & Trust Company into State
Street Corporation, the parent of State Street Bank and Trust Company, as of July 2, 2007;
WHEREAS, the parties now desire to create Dividend Income Value Strategy Series 2009D of the
aforesaid series;
NOW THEREFORE, in consideration of the premises and of the mutual agreements herein contained,
the Depositor and the Trustee agree as follows:
Section 1. Incorporation of Standard Terms and Conditions of Trust. Subject to the
provisions of Section 2 and 3 of this Trust Indenture and Agreement set forth below, all of the
provisions of the Standard Terms are incorporated by reference in their entirety and shall be
deemed to be a part of this instrument as fully to all intents and purposes as though said
provisions had been set forth in full in this instrument. Unless otherwise stated, section
references shall refer to sections in the Standard Terms.
Section 2. Corporate Name Change; Trustee Succession. All references to the name “UBS
PaineWebber Inc.” in the Standard Terms shall be deleted and shall be replaced with the name “UBS
Financial Services Inc.”. All references to Investors Bank & Trust Company shall be deleted
and replaced by State Street Bank and Trust Company.
Section 3. Specific Terms of this Series. The following terms are hereby agreed to for this
series of Equity Opportunity Trust, which series shall be known and designated as “Equity
Opportunity Trust Dividend Income Value Strategy Series 2009D”.
A. (1) The aggregate number of Units outstanding on the date hereof for this Series is
1,000,000.
(2) The initial fractional undivided interest represented by each Unit of this series shall be
1/1,000,000th of the Trust Fund. A receipt evidencing the ownership of this total number of Units
outstanding on the date hereof is being delivered by the Trustee to the Depositor.
(3) The Securities deposited into the Trust on the Initial Date of Deposit are set forth on
Schedule A hereto.
B. The term “Record Date” shall mean September 10, 2009 and monthly thereafter; provided,
however, that with respect to a distribution required by Section 2.02(b), the Record Date shall be
the last Business Day of the month during which the contract to purchase the Security fails.
Record Date shall also include such date or dates determined by the Sponsor and the Trustee as
necessary or desirable and in the best interest of the Unitholders for federal or state tax
purposes, or for other purposes (hereinafter a “Special Record Date”), which date may replace a
regularly scheduled Record Date if such regularly scheduled Record Date is within 30 days of a
Special Record Date.
C. The term “Distribution Date” shall mean the 15th day following each Record Date; the
Distribution Dates with respect to Income Account Distributions (the “Income Account Distribution
Dates”) shall mean September 25, 2009 and monthly thereafter and on or after the Mandatory
Termination Date, and shall mean December 25, 2009 and on or after the Mandatory Termination Date
with respect to Capital Account Distributions (the “Capital Account Distribution Dates”). With
respect to a distribution required by Section 2.02(b), the Distribution Date shall be the fifteenth
(15) day after the Record Date with respect thereto.
In the event a Special Record Date is declared, “Distribution Date” shall also include such
date as is determined by the Sponsor and the Trustee to be the Distribution Date in respect of such
Special Record Date.
D. The Discretionary Liquidation Amount shall be forty per centum (40%) of the aggregate value
of the Securities originally deposited on the date hereof and subsequently deposited pursuant to
any Supplemental Indenture pursuant to Section 2.02.
E. (1) The Mandatory Termination Date shall be October 31, 2010.
(2) Section 9.01(b) of the Standard Terms is hereby amended by deleting the text of
such subparagraph in its entirety and substituting the following text in its place:
“Unless advised to the contrary by the Sponsor, the Trustee shall sell the Securities held in
the Trust within 15 days of the Mandatory Termination Date, pursuant to instructions from the
Sponsor. The Sponsor, in its sole discretion, may direct the Trustee (i) to sell some or all of the
Securities on one date or on a more gradual basis, (ii) to utilize program or block trades, (iii)
to sell the Securities having the greatest amount of capital appreciation first and in a manner to
effectuate orderly sales and minimal market impact, or (iv) in any other manner permitted herein.
In the event that the Sponsor does not so direct, Securities shall be sold on a pro rata basis.”
F. The Trustee’s annual compensation as referred to in Section 8.05 shall be $.00170 per Unit
computed monthly based on the largest number of Units outstanding during the preceding month.
G. The Sponsor’s annual compensation pursuant to Section 7.02 shall be computed as $.00035 per
Unit, based on the largest number of Units outstanding in a calendar year.
H. The balance in the Income Account below which no distribution need be made, as referred to
in Section 3.04, is 0.1% of NAV. The balance in the Capital Account below which no distribution
need be made, as referred to in Section 3.04, is $0.005 per Unit outstanding.
I. The calendar year to be specified pursuant to Section 3.05 shall be calendar year 2009, so
that the Trustee’s first annual report will be furnished to Unitholders within a reasonable period
of time following calendar year 2009.
X. The Trust hereby elects to qualify as a “grantor trust” under the Internal Revenue Code of
1986, as amended. The taxable year for this Trust shall end on December 31.
K. The Sponsor’s Initial Costs are estimated to be $0.0075 per Unit.
L. The Trust hereby elects to make available a Reinvestment Plan for this Series.
M. Units of this Trust shall not be held in certificated form.
N. The Trust may receive Supplemental Deposits and issue Additional Units in accordance with
Section 2.02(c).
O. 1. Section 1.01 is hereby amended as follows:
The definition of “Distribution Date” contained in Section 1.01 is hereby amended by deleting
the definition in its entirety and substituting the following text in its place:
“Distribution Date: The date(s) specified as such in the Trust Indenture which may, if so
specified therein, be different for Income Account Distributions (“Income Account Distribution
Dates”) and Capital Account Distribution Dates (“Capital Account Distribution Dates”). If any
distribution date does not fall on a Business Day, such distribution date shall be the next
Business Day immediately following such specified distribution date.”
The definition of “Record Date” contained in Section 1.01 is hereby amended by deleting the
definition in its entirety and substituting the following text in its place:
“Record Date: The record date for a Capital Account Distribution and/or an Income Account
Distribution, as the case may be, specified as such in the Trust Indenture. Such record dates may
be specified as Capital Account Record Dates or Income Account Record Dates as the case may be. If
any record date does not fall on a Business Day, such record date shall be the Business Day
immediately preceding such specified record date.”
P. Section 3.04(g) is amended by adding the words “the Income Account or” prior to the words
“Capital Account”.
Q. 1. Section 3.06(a) is hereby amended by deleting the text of Section 3.06(a) in its
entirety and substituting the following text in its place:
“(a) The Sponsor by written notice may direct the Trustee to sell Securities at such price and
time and in such manner as shall be deemed appropriate by the Sponsor if the Sponsor shall have
determined that any materially adverse market or credit factors have occurred that, in the opinion
of the Sponsor the retention of such Securities would not be in the best interests of the
Unitholders. In making such determination, the Sponsor shall be entitled to consider any one or
more of the following conditions or events:
(1) that there has been a failure to declare or pay anticipated dividends or interest;
(2) that any materially adverse action or proceeding has been instituted at law or in equity
seeking to restrain or enjoin the declaration or payment of dividends or interest on any such
Securities or that there exists any other materially adverse legal question or impediment affecting
such Securities or the declaration or payment of dividends or interest on the same;
(3) that there has occurred any breach of covenant or warranty in any trust indenture or other
document relating to the issuer or obligor or guarantor which might materially and adversely affect
either immediately or contingently the declaration or payment of dividends or interest on such
Securities;
(4) that there has been a default in the payment of the principal or par or stated value of
premium, if any, or income on any other outstanding securities of the issuer or the guarantor of
such securities which might materially and adversely, either immediately or contingently, affect
the declaration or payment of dividends or interest on the Securities;
(5) that a decline in price of the Securities has occurred;
(6) that the sale of such Securities is desirable in order to maintain the qualification of
the Trust Fund as a “Regulated Investment Company” in the case of a trust which has elected to qualify
as such;
(7) that there has been a decrease in the Sponsor’s internal rating of the Security; or
(8) that there has been a happening of events which, in the opinion of the Sponsor, negatively
affects the economic fundamentals of the issuer of the Security or the industry of which it is a
part.
(b) The Sponsor may by written notice direct the Trustee to sell or tender for cash Securities
at such price and time and in such manner as shall be deemed appropriate by the Sponsor if the
Sponsor shall have determined that a public tender offer has been made for a security, or a merger
or acquisition has been announced affecting a security, that in the opinion of the Sponsor, the
sale or tender of such Securities is in the best interest of the Unitholders.
2. Section 3.06 is further amended by re-lettering the existing paragraphs (b) and (c) to
become (c) and (d), respectively.
R. The Units of this Trust shall be subject to a Deferred Sales Charge in an amount, and that
shall be paid in the manner, as set forth below and in the Prospectus. Commencing in the seventh
(7th) month (February, 2010) and continuing through the twelfth (12th) month (July, 2010) of the
Trust’s 15-month life, the Deferred Sales Charge per 1,000 Units shall be $15.00 for such period.
S. For purposes of this Trust, the In-Kind Distribution Amount shall be $500,000, and the
Sponsor shall direct whether an In-Kind Distribution shall be made.
T. The Rollover Notification Date shall be October 18, 2010. If, however, such specified date
does not fall on a Business Day, such specified date shall be the next Business Day immediately
following such specified date.
U. The Special Redemption Rollover Date shall be October 19, 2010. If, however, such specified
date does not fall on a Business Day, such specified date shall be the next Business Day
immediately following such specified date.
V. The Special Liquidation Period shall be October 18, 2010 through October 22, 2010. If,
however, one or more of such specified dates does not fall on a Business Day, such specified
date(s) shall be the next Business Day immediately following such specified date(s).
W.
Section 4.01 of the Standard Terms is hereby amended by adding new
subsection 4.01(f) below. For the avoidance of doubt, nothing in
subparagraph (f) shall be interpreted or construed to modify, alter
or otherwise change anything contained in subparagraphs 4.01(a)
through 4.01(e) of the Standard Terms.
“(f)
The Trust shall classify its Portfolio Securities in accordance with
the three levels specified in The Statement of Financial Accounting
Standards No. 157, Fair Value Measurements, and shall include
such classification(s) in the footnotes to the Trust’s financial
statements(s).”
X. Section 5.01(a)(Y)(iii) is amended to add the phrase “and
C&D Fees” following “Initial Costs”.
Y. Section 5.02 (b)(1) is amended to add the phrase “and C&D Fees” following “Initial Costs”.
Z. Section 5.02 (b) is amended to add the phrase “and C&D Fees” following “Initial Costs”.
AA. Section 10.02 of the Standard Terms is hereby amended by adding new subsections 10.02(f)
through (i) below, to provide for the deduction and payment of the Creation and Development Fee
described in the Prospectus (the “C&D Fee”):
(f) The Sponsor shall be paid the C&D Fee in the manner described below and the payment of the
C&D Fee shall be for the account of Unitholders of record at the conclusion of the initial public
Offering Period the (“Computation Date”) and shall not be reflected in the computation of Unit
Value prior thereto.
(g) The Sponsor shall submit a written certification to the Trustee stating the Computation
Date, the percentage rate of the C&D Fee set forth in the Prospectus (the “Percentage Rate”) and
the total dollar amount of the C&D Fee calculated in the manner set forth in subsection (h)
immediately below (the “C&D Certification”).
(h) The Sponsor shall compute the total dollar amount of the C&D Fee by (a) multiplying the
Trust Fund’s average daily net asset value per Unit during the period from the Initial Date of
Deposit through and including the Computation Date by (b) the number of Units outstanding on the
Computation Date and then (c) multiplying that product by the Percentage Rate.
(i) Promptly after receipt of the C&D Certification, the Trustee shall pay to the Sponsor,
from the assets of the Trust Fund, the C&D Fee specified therein or any lessor amount as may be
requested by the Sponsor. If so directed by the Sponsor, and upon receipt of directions to sell
those Securities selected by the Sponsor, the Trustee shall sell those Securities having a value,
as determined under Section 4.01 of the Standard Terms as of the date of such sale sufficient for
the payment of the C&D fee specified in the C&D Certification and shall distribute the proceeds of
such sale to or upon the order of the Sponsor, but only to the extent of such C&D Fee.
BB. The Trustee’s address for notices under Section 10.06 is:
State Street Bank and Trust Company
Xxxxxxx Tower
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx Tower
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
CC. This Trust shall be designated as a “Rollover Series”.
IN WITNESS WHEREOF, UBS Financial Services Inc. has caused this Trust Indenture and Agreement
to be executed by one of its Associate Directors and its corporate seal to be hereto affixed and
attested by one of its Assistant Secretaries, and State Street Bank and Trust Company has caused
this Trust Indenture to be executed by one of its Authorized Signatories and its corporate seals to
be hereto affixed and attested by one of its Authorized Signatories, all as of the date first above
written.
| UBS FINANCIAL SERVICES INC. | ||||||
| as Depositor and Sponsor | ||||||
SEAL
|
By | |||||
| Associate Director | ||||||
Attest: |
||||||
Secretary |
||||||
STATE OF NEW YORK
|
) | |
:ss.: |
||
COUNTY OF NEW YORK
|
) |
On this 18th day of August , 2009 before me personally appeared Xxxxxx Xxxxxx, to me
known, who being by me duly sworn, said that he is an Associate Director of UBS Financial Services
Inc., one of the corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.
| Notary Public |
SCHEDULE A TO TRUST INDENTURE
As of
Initial Date of Deposit, August 18, 2009
|
Primary Industry Source and |
Number of |
Cost of Securities |
||||||
|
Name of Issuer
|
Shares
|
to Trust (1)(2)(3)
|
||||||
|
Value S&P Industrial Strategy Stocks (50.00%)
|
||||||||
|
Aerospace/Defense (3.33%)
|
||||||||
|
General Dynamics Corporation
|
600 | $ | 33,018.00 | |||||
|
Apparel Manufacturers (3.31%)
|
||||||||
|
VF Corporation
|
510 | 32,808.30 | ||||||
|
Beverages (3.35%)
|
||||||||
|
PepsiCo, Inc.
|
590 | 33,146.20 | ||||||
|
Commercial Services-Finance (3.34%)
|
||||||||
|
Paychex, Inc.
|
1,210 | 33,081.40 | ||||||
|
Consumer Products (6.71%)
|
||||||||
|
Xxxxxxxx-Xxxxx Corporation
|
570 | 33,276.60 | ||||||
|
The Clorox Company
|
580 | 33,187.60 | ||||||
|
Cosmetics & Toiletries (6.64%)
|
||||||||
|
Avon Products, Inc.
|
1,050 | 32,928.00 | ||||||
|
Colgate-Palmolive Company
|
460 | 32,816.40 | ||||||
|
Data Processing/Management (3.34%)
|
||||||||
|
Automatic Data Processing, Inc.
|
880 | 33,105.60 | ||||||
|
Diversified Manufacturing Operations (3.33%)
|
||||||||
|
Illinois Tool Works Inc.
|
820 | 32,947.60 | ||||||
|
Electric (3.33%)
|
||||||||
|
Xxxxxxx Electric Co.
|
970 | 32,970.30 | ||||||
|
Foods (6.64%)
|
||||||||
|
Xxxxxxx Company
|
710 | 32,702.60 | ||||||
|
Sysco Corporation
|
1,370 | 33,071.80 | ||||||
|
Industrial Gases (3.32%)
|
||||||||
|
Air Products and Chemicals, Inc.
|
450 | 32,864.30 | ||||||
|
Tobacco (3.36%)
|
||||||||
|
Altria Group, Inc.
|
1,890 | 33,112.80 | ||||||
EQUITY
OPPORTUNITY TRUST
DIVIDEND INCOME VALUE STRATEGY SERIES 2009D
SCHEDULE OF INVESTMENTS—(Continued)
DIVIDEND INCOME VALUE STRATEGY SERIES 2009D
SCHEDULE OF INVESTMENTS—(Continued)
|
Primary Industry Source and |
Number of |
Cost of Securities |
||||||
|
Name of Issuer
|
Shares
|
to Trust (1)(2)(3)
|
||||||
|
Value Select Ten Strategy Stocks (50.00%)
|
||||||||
|
Aerospace/Defense (5.00%)
|
||||||||
|
The Boeing Company
|
1,120 | $ | 49,459.20 | |||||
|
Chemical (4.99%)
|
||||||||
|
E.I. du Pont de Nemours and Company
|
1,590 | 49,385.40 | ||||||
|
Foods (5.00%)
|
||||||||
|
Kraft Foods Inc.
|
1,780 | 49,466.20 | ||||||
|
Machinery-Construction & Mining (5.06%)
|
||||||||
|
Caterpillar Inc.
|
1,140 | 50,103.00 | ||||||
|
Oil Companies — Integrated (4.98%)
|
||||||||
|
Chevron Corporation
|
740 | 49,276.60 | ||||||
|
Pharmaceuticals (9.99%)
|
||||||||
|
Merck & Co., Inc.
|
1,600 | 49,408.00 | ||||||
|
Pfizer Inc.
|
3,120 | 49,545.60 | ||||||
|
Retail — Restaurants (5.01%)
|
||||||||
|
XxXxxxxx’x Corporation
|
910 | 49,595.00 | ||||||
|
Telecommunications (9.97%)
|
||||||||
|
AT&T Inc.
|
1,980 | 49,539.90 | ||||||
|
Verizon Communications Inc.
|
1,630 | 49,258.60 | ||||||
|
TOTAL INVESTMENTS
|
$ | 990,075.00 | ||||||
| (1) | All Securities are represented entirely by contracts to purchase such Securities. | |
| (2) | Valuation of the Securities by the Trustee was made as described in “Valuation” in Part B of this Prospectus as of the close of business on the Business Day prior to the Initial Date of Deposit. | |
| (3) | There was no gain or loss to the Sponsor on the Initial Date of Deposit. |
| (4) | In accordance with Statement of Financial Accounting Standards No. 157 (“FAS 157”), Fair Value Measurements. The Trust classifies its investment securities into three levels based on the method used to value the investment securities. Level 1 values are based on quoted prices in active markets for identical securities. Level 2 values are based on significant observable market inputs, such as quoted prices for similar securities and quoted prices in inactive markets. Level 3 values are based on significant unobservable inputs that reflect the Trust’s determination of assumptions that market participants might reasonably use in valuing the securities. The valuation levels are not necessarily an indication of the risk or liquidity associated with the underlying investment. At August 18, 2009, all of the Trust’s investment securities were classified as Level 1. | |
