Exhibit 99.A2
EQUITY OPPORTUNITY TRUST,
SPECIAL SITUATIONS SERIES 11
TRUST INDENTURE AND AGREEMENT
Dated as of April 26, 2005
Incorporating
Standard Terms and Conditions of Trust, as amended,
Dated as of July 1, 1998,
Between
UBS FINANCIAL SERVICES INC.,
as Depositor
and
INVESTORS BANK & TRUST COMPANY
as Trustee
THIS TRUST INDENTURE AND AGREEMENT dated as of April 26, 2005
between UBS Financial Services 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, 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.";
WHEREAS, the parties now desire to create Special Situations
Series 11 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. 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.".
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, Special Situations
Series 11".
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, 2005 and
quarterly 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 June
25, 2005, and quarterly thereafter and on or after the Mandatory Termination
Date, and shall mean December 25, 2005 and December 25, 2006 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 April 30, 2007.
(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 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 2005, so that the Trustee's first annual report will be
furnished to Unitholders within a reasonable period of time following calendar
year 2005.
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 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. 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.
Q. 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 eighth (8th) month (November,
2005) and continuing through the eleventh (11th) month (February, 2006) of the
Trust's first year and from the eighth (8th) month (November, 2006) continuing
through the eleventh (11th) month (February, 2007) of the Trust's second year of
the Trust's two-year life, the Deferred Sales Charge per 1,000 Units shall be
$10.00 in the Trust's first year and $10.00 in the Trust's second year,
aggregating $20.00 per 1,000 Units for such two-year period.
R. 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.
S. Section 5.01(a)(Y)(iii) is amended to add the phrase "and
C&D Fees" following "Initial Costs".
T. Section 5.02 (b)(1) is amended to add the phrase "and C&D
Fees" following "Initial Costs".
U. Section 5.02 (b) is amended to add the phrase "and C&D
Fees" following "Initial Costs".
V. 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.
Z. The Trustee's address for notices under Section 10.06 is:
▇▇▇▇▇▇▇ Tower
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IN WITNESS WHEREOF, UBS Financial Services Inc. has caused this Trust
Indenture and Agreement to be executed by one of its First 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 FINANCIAL SERVICES INC.
as Depositor and Sponsor
SEAL By ________________________
First Vice President
Attest:
--------------------------
Secretary
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On this 26th day of April, 2005 before me personally appeared ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
to me known, who being by me duly sworn, said that she is a First Vice President
of UBS Financial Services 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.
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Notary Public
SCHEDULE A TO TRUST INDENTURE
EQUITY OPPORTUNITY TRUST
SPECIAL SITUATIONS SERIES 11
SCHEDULE OF INVESTMENTS
AS OF INITIAL DATE OF DEPOSIT, APRIL 26, 2005
COMMON STOCKS (1)
PRIMARY INDUSTRY SOURCE AND NUMBER OF COST OF SECURITIES
NAME OF ISSUER SHARES TO TRUST(1)(2)(3)
------------------------------------------------------------ ----------- -------------------
Building Products (3.84%)
Lafarge SA+ .............................................. 1,630 $ 38,027.90
Chemicals (3.88%)
BASF AG+ ................................................. 560 38,410.40
Consumer Products (3.77%)
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Corporation ............................... 590 37,311.60
Diversified Manufacturing Operations (7.70%)
3M Co. ................................................... 490 37,980.00
Siemens AG+ .............................................. 500 38,255.00
Electric (3.86%)
E.ON AG+ ................................................. 1,310 38,199.60
Financial Institutions/Banks (46.21%)
ABN AMRO Holding NV+ ..................................... 1,540 38,007.20
Australia and New Zealand Banking Group Limited+ ......... 470 37,976.00
Banco Bilbao Vizcaya Argentaria, S.A+. ................... 2,410 38,150.30
Bank of America Corporation .............................. 840 37,657.20
Barclays PLC+ ............................................ 890 38,145.40
Citigroup Inc. ........................................... 820 38,359.60
▇▇▇▇▇▇▇ Mac .............................................. 630 38,398.50
HSBC Holdings plc+ ....................................... 480 38,356.80
MBNA Corporation ......................................... 2,010 38,089.50
The Toronto-Dominion Bank+ ............................... 960 38,198.40
▇▇▇▇▇ Fargo & Company .................................... 640 37,856.00
Westpac Banking Corporation+ ............................. 530 38,287.20
Home Furnishings (3.83%)
▇▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated ............................ 1,390 37,933.10
Insurance--Life/Health (3.84%)
Lincoln National Corporation ............................. 870 38,027.70
Insurance--Multi-Line (3.86%)
Allianz AG+ .............................................. 3,140 38,182.40
Insurance--Property/Casualty (3.86%)
ACE Limited .............................................. 960 38,198.40
Multimedia (3.83%)
Tribune Company .......................................... 1,000 37,950.00
Oil/Gas (3.85%)
Total SA+ ................................................ 330 38,115.00
Pharmaceuticals (3.88%)
Pfizer Inc. .............................................. 1,420 38,382.60
Tools (3.79%)
The ▇▇▇▇▇▇▇ Works ........................................ 820 37,564.20
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TOTAL INVESTMENTS ....................................... $ 990,020.00
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(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.
+ These are American Depositary Receipts which are U.S. dollar denominated
and pay dividends in U.S. dollars but are subject to investment risks
generally facing common stocks of foreign issuers (see "Risk Factors and
Special Considerations" in Part B.)
