Exhibit 99.A2
UBS PAINEWEBBER EQUITY TRUST,
VALUE SELECT TEN SERIES 2002B
TRUST INDENTURE AND AGREEMENT
Dated as of March 12, 2002
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 March 12, 2002
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 Value Select Ten
Series 2002B 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 2002B".
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 June 10, 2002,
September 10, 2002, December 10, 2002 and March 10, 2003; 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
June 25, 2002, September 25, 2002, December 25, 2002, March 25, 2003 and on or
after the Mandatory Termination Date, and shall mean December 25, 2002 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 May 30, 2003.
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 2002, so that the Trustee's first annual report
will be furnished to Unitholders within a reasonable period of time following
calendar year 2002.
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 (June, 2002)
and continuing through the thirteenth (13th) month (March, 2003) of the
Trust's 15 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 March 18, 2003.
S. The Special Redemption Rollover Date shall be March 19,
2003 .
T. The Special Liquidation Period shall be March 18, 2003
through March 24, 2003.
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 12th day of March, 2002 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 2002B
SCHEDULE OF INVESTMENTS
AS OF INITIAL DATE OF DEPOSIT, MARCH 12, 2002
COMMON STOCKS (1)
PRIMARY INDUSTRY SOURCE AND NUMBER OF COST OF SECURITIES
NAME OF ISSUER SHARES TO TRUST(2)(3)
---------------------------------------------------- ----------- -------------------
Automobile (9.94%)
General Motors Corporation .................. 1,610 $ 98,435.40
Chemicals (10.07%)
E.I. du Pont de Nemours and Company ......... 2,110 99,655.30
Financial Institutions/Banks (10.05%)
X.X. Xxxxxx Xxxxx & Co. ..................... 2,740 99,462.00
Machinery--Construction & Mining (9.97%)
Caterpillar Inc. ............................ 1,670 98,697.60
Oil/Gas (10.02%)
Exxon Mobil Corporation ..................... 2,280 99,157.20
Paper & Related Products (9.97%)
International Paper Company ................. 2,190 98,703.30
Pharmaceutical (9.95%)
Merck & Co., Inc. ........................... 1,570 98,501.80
Photo Equipment & Supplies (10.04%)
Xxxxxxx Kodak Company ....................... 3,100 99,355.00
Telecommunications (10.02%)
SBC Communications Inc. ..................... 2,570 99,202.00
Tobacco (9.97%)
Xxxxxx Xxxxxx Companies Inc. ................ 1,880 98,850.40
------------
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 March 12, 2002
Investors Bank & Trust Company
Xxxxxxx Towers
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: UBS PaineWebber Equity Trust,
Value Select Ten Series 2002B
-----------------------------
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 2002B (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) Xxxxxx 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.
333-76710) 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 March 12, 2002 (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 March 12, 2002 between
the Sponsor and the Trustee (the "Trust Indenture" and, collectively
with the Standard Terms, the "Indenture and Agreement");
(k) The Closing Memorandum dated March 12, 2002, 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
