Exhibit 99.A2
EQUITY OPPORTUNITY TRUST,
SPECIAL SITUATIONS SERIES 12
TRUST INDENTURE AND AGREEMENT
Dated as of April 12, 2006
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 12, 2006 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 12 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
12".
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, 2006 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, 2006, and
quarterly thereafter, and on or after the Mandatory Termination Date, and shall
mean 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 July 31, 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 2006, so that the Trustee's first annual report will be furnished
to Unitholders within a reasonable period of time following calendar year 2006.
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 seventh (7th) month (October, 2006) and continuing
through the twelfth (12th) month (March, 2007) of the Trust's 16-month life, the
Deferred Sales Charge per 1,000 Units shall be $15.00 for such 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.
W. 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 Directors 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 ___________________________
Director
Attest:
--------------------------
Secretary
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On this 12th day of April, 2006 before me personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
to me known, who being by me duly sworn, said that he is a 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.
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Notary Public
SCHEDULE A TO TRUST INDENTURE
EQUITY OPPORTUNITY TRUST
SPECIAL SITUATIONS SERIES 12
SCHEDULE OF INVESTMENTS
AS OF INITIAL DATE OF DEPOSIT, APRIL 12, 2006
COMMON STOCKS (1)
PRIMARY INDUSTRY SOURCE AND NUMBER OF COST OF SECURITIES
NAME OF ISSUER SHARES TO TRUST(2)(3)
----------------------------------------------------------- ----------- -------------------
Beverages (3.46%)
The Coca-Cola Company .................................... 830 $ 34,270.70
Building Products (3.47%)
Lafarge SA+ .............................................. 1,220 34,306.40
Consumer Products (3.52%)
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Corporation ............................... 610 34,861.50
Diversified Manufacturing Operations (13.75%)
3M Co. ................................................... 420 33,931.90
General Electric Company ................................. 1,010 34,390.50
▇▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated ............................ 1,420 34,080.00
Siemens AG+ .............................................. 370 33,744.00
Electric (3.47%)
Enel S.p.A+ .............................................. 830 34,328.80
Financial Institutions/Banks (30.86%)
Australia and New Zealand Banking Group Limited+ ......... 340 33,456.00
Bank of America Corporation .............................. 750 34,170.00
Bank of Ireland+ ......................................... 470 34,103.20
Barclays PLC+ ............................................ 720 34,214.40
HSBC Holdings plc+ ....................................... 400 33,664.00
KeyCorp .................................................. 930 34,251.90
SunTrust Banks, Inc. ..................................... 460 33,741.00
▇▇▇▇▇ Fargo & Company .................................... 530 34,121.40
Westpac Banking Corporation+ ............................. 380 33,823.80
Finance--Mortgage Loan/Banker (3.54%)
▇▇▇▇▇▇▇ Mac .............................................. 590 35,010.60
Foods (3.44%) .............................................
The Hershey Company ...................................... 680 34,102.00
Industrial Gases (3.45%)
Air Products and Chemicals, Inc. ......................... 520 34,200.40
Insurance--Life/Health (3.44%)
Lincoln National Corporation ............................. 610 34,019.70
Insurance--Multi-Line (3.46%)
The Hartford Financial Services Group, Inc. .............. 420 34,251.00
EQUITY OPPORTUNITY TRUST
SPECIAL SITUATIONS SERIES 12
SCHEDULE OF INVESTMENTS--CONTINUED
PRIMARY INDUSTRY SOURCE AND NUMBER OF COST OF SECURITIES
NAME OF ISSUER SHARES TO TRUST(2)(3)
------------------------------- ----------- -------------------
Medical--Drugs (6.91%)
Altana AG+ ................... 570 $ 34,302.60
Pfizer Inc. .................. 1,400 34,090.00
Medical Products (3.44%)
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ............ 590 34,072.50
Metal--Aluminum (3.44%)
Alcoa, Inc. .................. 1,000 34,090.00
Oil--Integrated (6.87%)
BP plc+ ...................... 460 33,299.40
Total SA+ .................... 260 34,730.80
Tools (3.48%)
The ▇▇▇▇▇▇▇ Works ............ 650 34,391.50
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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.)
