Exhibit 99.A2
UBS PAINEWEBBER EQUITY TRUST,
VALUE SELECT TEN SERIES 2001D
TRUST INDENTURE AND AGREEMENT
Dated as of September 21, 2001
Incorporating
Standard Terms and Conditions of Trust
Dated as of July 1, 1998,
Between
UBS PAINEWEBBER INC.,
as Depositor
and
INVESTORS BANK & TRUST COMPANY
as Trustee
THIS TRUST INDENTURE AND AGREEMENT dated as of September 21, 2001
between UBS PaineWebber Inc., as Depositor and Investors Bank & 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, 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 now desire to create the second Value Select Ten
Trust 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 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. Specific Terms of this Series. The following terms are
hereby agreed to for this series of UBS PaineWebber Equity Trust, which series
shall be known and designated as "UBS PaineWebber Equity Trust, Value Select Ten
Series 2001D".
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 December 10, 2001, March 10, 2002,
June 10, 2002 and September 10, 2002; 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 December 25, 2001, March
25, 2002, June 25, 2002, September 25, 2002 and on or after the Mandatory
Termination Date, and shall mean December 25, 2001 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. The Mandatory Termination Date shall be November 29, 2002. Unless
advised to the contrary by the Sponsor, the date on which the Trustee shall
begin to sell equity Securities in accordance with Section 9.01 shall be 15 days
before the Mandatory Termination Date. .
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 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 2001, so that the Trustee's first annual report will be furnished
to Unitholders within a reasonable period of time following calendar year 2001.
J. 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 $0.0020 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 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.
P. 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 fourth (4th) month (December, 2001) and
continuing through the thirteenth (13th) month (September, 2002) of the Trust's
fifteen month life, the Deferred Sales Charge per 1,000 Units shall be $15.00
per year for such period.
Q. 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.
R. The Rollover Notification Date shall be October 22, 2002.
S. The Special Redemption Rollover Date shall be October 23, 2002 .
T. The Special Liquidation Period shall be October 22, 2002 through
October 26, 2002.
U. Section 5.01(a)(Y)(iii) is amended to add the phrase "and C&D Fees"
following "Initial Costs".
V. Section 5.02 (b)(1) is amended to add the phrase "and C&D Fees"
following "Initial Costs".
W. Section 5.02 (b) is amended to add the phrase "and C&D Fees"
following "Initial Costs".
X. 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.
Y. The Trustee's address for notices under Section 10.06 is:
Xxxxxxx Tower
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
IN WITNESS WHEREOF, UBS PaineWebber Inc. has caused this Trust
Indenture and Agreement to be executed by one of its Corporate Vice
Presidents and its corporate seal to be hereto affixed and attested by
one of its Assistant Secretaries, and Investors Bank & 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 PAINEWEBBER INC.
as Depositor and Sponsor
SEAL By
-------------------------------
Corporate Vice President
Attest:
--------------------------
Secretary
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On this 21st day of September, 2001 before me personally
appeared Xxxxxxxxx Xxxxx Xxxxxxx, to me known, who being by me duly
sworn, said that she is a Corporate Vice President of UBS PaineWebber
Inc., one of the corporations described in and which executed the
foregoing instrument; that she 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 she signed her name thereto by like authority.
----------------------------
Notary Public
SCHEDULE A TO TRUST INDENTURE
UBS PAINEWEBBER EQUITY TRUST
VALUE SELECT TEN SERIES 2001D
SCHEDULE OF INVESTMENTS
AS OF INITIAL DATE OF DEPOSIT, SEPTEMBER 21, 2001
COMMON STOCKS (1)
PRIMARY INDUSTRY SOURCE AND NUMBER OF COST OF SECURITIES
NAME OF ISSUER SHARES TO TRUST(2)(3)
-------------- ------ --------------
Automobile (9.99%)
General Motors Corporation .................. 2,430 $ 98,901.00
Chemicals (10.02%)
E.I. du Pont de Nemours and Company ......... 2,910 99,231.00
Diversified Manufacturing Operations (20.07%)
Honeywell International Inc. ................ 4,210 99,313.90
Minnesota Mining and Manufacturing
Company (3M) ............................... 1,100 99,352.00
Financial Institutions/Banks (10.01%)
X.X. Xxxxxx Xxxxx & Co. ..................... 3,140 99,098.40
Machinery--Construction & Mining (9.98%)
Caterpillar Inc. ............................ 2,370 98,828.70
Oil/Gas (9.95%)
Exxon Mobil Corporation ..................... 2,660 98,473.20
Paper & Related Products (10.05%)
International Paper Company ................. 3,060 99,450.00
Photo Equipment & Supplies (9.97%)
Xxxxxxx Kodak Company ....................... 3,030 98,717.40
Tobacco (9.96%)
Xxxxxx Xxxxxx Companies Inc. ................ 2,080 98,654.40
TOTAL INVESTMENTS ............................. $ 990,020.00
============
----------
(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.
PLEASE NOTE THAT IF THIS PROSPECTUS IS USED AS A PRELIMINARY PROSPECTUS
FOR A FUTURE TRUST IN THIS SERIES, THE PORTFOLIO WILL CONTAIN
DIFFERENT SECURITIES FROM THOSE DESCRIBED ABOVE.
UBS PaineWebber Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 September 21, 2001
Investors Bank & Trust Company
Xxxxxxx Towers
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: UBS PaineWebber Equity Trust,
Value Select Ten Series 2001D
---------------------------------
Ladies and Gentlemen:
We have served as counsel for UBS PaineWebber Inc. as sponsor and
depositor (the "Sponsor") of UBS PaineWebber Equity Trust, Value Select Ten
Series 2001D (hereinafter referred to as the "Trust") in connection with
the issuance by the Trust of an initial 1,000,000 units of fractional
undivided interest in the Trust (hereinafter referred to as the "Units").
In this regard, we have examined executed originals or copies of the
following:
(a) The Restated Certificate of Incorporation, as amended, and the
By-Laws of the Sponsor, as amended, certified by the Secretary of the
Sponsor on the date hereof;
(b) Resolutions of the Board of Directors of the Sponsor adopted on
December 3, 1971 relating to the Trust and the sale of the Units,
certified by the Secretary of the Sponsor on the date hereof;
(c) Resolutions of the Executive Committee of the Sponsor adopted on
September 24, 1984, certified by the Secretary of the Sponsor on the
date hereof;
(d) Powers of Attorney as set forth in the certificate of the
Secretary of the Sponsor dated the date hereof;
(e) The Registration Statement on Form S-6 (File No. 333-67146)
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder (collectively,
the "1933 Act") and amendments thereto including Amendment No. 1
("Amendment No. 1") proposed to be filed on September 21, 2001 (the
"Registration Statement");
(f) The Notification of Registration of the Trust filed with the
Commission under the Investment Company Act of 1940, as amended
(collectively, the "1940 Act") on Form N-8A, as amended, (the "1940 Act
Notification");
(g) The registration of the Trust filed with the Commission under
the 1940 Act on Form N-8B-2 (File No. 811-3722), as amended (the "1940
Act Registration");
(h) The prospectus included in Amendment No. 1 (the "Prospectus");
(i) The Standard Terms and Conditions of the Trust dated as of July
1, 1998, between the Sponsor and Investors Bank & Trust Company, (the
"Trustee") (the "Standard Terms");
(j) The Trust Indenture dated as of September 21, 2001 between the
Sponsor and the Trustee (the "Trust Indenture" and, collectively with
the Standard Terms, the "Indenture and Agreement");
(k) The Closing Memorandum dated September 21, 2001, between the
Sponsor and the Trustee (the "Closing Memorandum");
(l) Officers Certificates required by the Closing Memorandum; and
(m) Such other pertinent records and documents as we have deemed
necessary.
With your permission, in such examination, we have assumed the
following: (a) the authenticity of original documents and the genuineness of all
signatures; (b) the conformity to the
originals of all documents submitted to us as copies; (c) the truth, accuracy,
and completeness of the information, representations, and warranties contained
in the records, documents, instruments and certificates we have reviewed; (d)
except as specifically covered in the opinions set forth below, the due
authorization, execution, and delivery on behalf of the respective parties
thereto of documents referred to herein and the legal, valid, and binding effect
thereof on such parties; and (e) the absence of any evidence extrinsic to the
provisions of the written agreement(s) between the parties that the parties
intended a meaning contrary to that expressed by those provisions. However, we
have not examined the securities deposited pursuant to the Indenture and
Agreement (the "Securities") nor the contracts for the Securities.
We express no opinion as to matters of law in jurisdictions other than
the laws of the State of New York (except "Blue Sky" laws) and the federal laws
of the United States, except to the extent necessary to render the opinion as to
the Sponsor and the Indenture and Agreement in paragraphs (i) and (iii) below
with respect to Delaware law. As you know we are not licensed to practice law in
the State of Delaware, and our opinion in paragraph (i) and (iii) as to Delaware
law is based solely on review of the official statutes of the State of Delaware.
Based upon such examination, and having regard for legal considerations
which we deem relevant, we are of the opinion that:
(i) The Sponsor is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Delaware with full corporate
power to conduct its business as described in the Prospectus;
(ii) The Sponsor is duly qualified as a foreign corporation and is in
good standing as such within the State of New York;
(iii) The Indenture and Agreement has been duly authorized, executed
and delivered by the Sponsor and, assuming the due authorization, execution and
delivery by the Trustee, is a valid and binding agreement of the Sponsor,
enforceable against the Sponsor in accordance with its terms;
(iv) The Trust has been duly formed and is validly existing as an
investment trust under the laws of the State of New York and has been duly
registered under the Investment Company Act of 1940;
(v) The terms and provisions of the Units conform in all material
respects to the description thereof contained in the Prospectus;
(vi) The consummation of the transactions contemplated under the
Indenture and Agreement and the fulfillment of the terms thereof will not be in
violation of the Sponsor's Restated Certificate of Incorporation, as amended, or
By-Laws, as amended and will not conflict with any applicable laws or
regulations applicable to the Sponsor in effect on the date hereof;
(vii) The Units to be issued by the Trust, and recorded on its
registration books in accordance with the Indenture and Agreement against
payment therefor, as described in the Registration Statement and Prospectus will
constitute fractional undivided interests in the Trust enforceable against the
Trust in accordance with their terms, will be entitled to the benefits of the
Indenture and Agreement and will be fully paid and non-assessable; and
(viii) While the Registration Statement has not yet become effective we
have no reason to believe that such Registration Statement will not become
effective on the date and at the time requested therein pursuant to Rule 487
promulgated under the 1933 Act.
In addition, we have participated in conferences with representatives
of the Sponsor, the Trustee, the Trust's accountants and others concerning the
Registration Statement and the Prospectus and have considered the matters
required to be stated therein and the statements contained therein, although we
have not independently verified the accuracy, completeness or fairness of such
statements. Based upon and subject to the foregoing, nothing has come to our
attention to cause us to believe that the Registration Statement, as of the date
hereof, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or that the Prospectus, as of the date hereof, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading (it being
understood that we have not been requested to and do not make any comment in
this paragraph with respect to the financial statements, schedules and other
financial and statistical information contained in the Registration Statement or
the Prospectus).
Our opinion that any document is valid, binding, or enforceable in
accordance with its terms is qualified as to:
(a) limitations imposed by bankruptcy, insolvency, reorganization,
arrangement, fraudulent conveyance, moratorium, or other laws relating to or
affecting the enforcement of creditors' rights generally;
(b) rights to indemnification and contribution which may be limited by
applicable law or equitable principles; and
(c) general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name wherever it appears in the
Registration Statement and the Prospectus.
Very truly yours,
XXXXXX, XXXXXXX & XXXXXXX
KHM:cd
