Exhibit 1.1
CLAYMORE SECURITIES DEFINED PORTFOLIOS,
SERIES 125
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated as of June 4, 2002, between Claymore
Securities, Inc., as Depositor, and The Bank of New York, as Trustee, sets forth
certain provisions in full and incorporates other provisions by reference to the
document entitled "Standard Terms and Conditions of Trust For Series Formed on
or Subsequent to February 6, 2002" (herein called the "Standard Terms and
Conditions of Trust"), and such provisions as are set forth in full and such
provisions as are incorporated by reference constitute a single instrument. All
references herein to Articles and Sections are to Articles and Sections of the
Standard Terms and Conditions of Trust.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
PART I.
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II hereof, all the provisions contained
in the Standard Terms and Conditions of Trust are herein incorporated by
reference in their entirety and shall be deemed to be a part of this instrument
as fully and to the same extent as though said provisions had been set forth in
this instrument.
PART II.
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
(1) The securities listed in the Schedule hereto have been deposited
in the Trust under this Reference Trust Agreement as indicated on the
attached Schedule A.
(2) For the purposes of the definition of the term "Unit" in Article
I, it is hereby specified that the fractional undivided interest in and
ownership of a Trust is the amount described in Amendment No. 1 to the
Trust's Registration Statement (Registration No. 333-88942) as filed with
the Securities and Exchange Commission today. The fractional undivided
interest may (a) increase by the number of any additional Units issued
pursuant to Section 2.05, (b) increase or decrease in connection with an
adjustment to the number of Units pursuant to Section 2.05, or (c) decrease
by the number of Units redeemed pursuant to Section 5.02.
(3) The term "Record Date" shall mean the first day of each month for
principal distributions and the dates set forth in the Prospectus for
interest distributions.
(4) The term "Distribution Date" shall mean the fifteenth day of each
month for principal distributions and the dates set forth in the Prospectus
for interest distributions.
(5) The term "Initial Date of Deposit" shall mean the date of this
Reference Trust Agreement as set forth above.
(6) The number of Units of the Trust referred to in Section 2.03 shall
be equal to the "Number of Units" in the Statement of Financial Condition
in the Prospectus.
(7) For the purposes of Section 6.01(g)(i), the liquidation amount
shall be 40% of the total value of all Securities deposited in the Trust at
the end of the Trust's initial offering period.
(8) Article I is hereby amended to add the following definitions:
"Book Entry Position" shall mean any position in Units of a Trust
which ownership is recorded on the books of the Trustee which notation
evidences ownership of an undivided fraction interest in a Trust in book
entry form.
"Certificate" shall mean any one of the Certificates manually executed
by the Trustee and the Depositor in substantially the following form with
the blanks appropriately filled in:
CERTIFICATE OF
No. ____ OWNERSHIP Units _____
Description of Trust Plan of Distribution:
Monthly
Semi-Annual
CUSIP _________________
This is to certify that _______________________________________ is the
owner and registered holder of this Certificate evidencing the ownership of
________________ units of undivided interest in the above-named Trust created
pursuant to the Trust Indenture and Agreement between Claymore Securities, Inc.,
and The Bank of New York (the "Trustee"), a copy of which is available at the
office of the Trustee. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Indenture to which the Holder of this
Certificate by virtue of the acceptance hereof assents and is bound, a summary
of which Indenture is contained in the Prospectus relating to the Trust. This
Certificate is transferable and interchangeable by the registered owner in
person or by his duly authorized attorney at the Trustee's office upon surrender
of this Certificate properly endorsed or accompanied by a written instrument of
transfer and any other documents that the Trustee may require for transfer, in
form satisfactory to the Trustee and payment of the fees and expense provided in
the Indenture.
IN WITNESS WHEREOF, Claymore Securities, Inc. has caused this Certificate
to be executed in facsimile by its Chairman of the Board and The Bank of New
York, as Trustee, has caused this Certificate to be executed in facsimile in its
corporate name by an authorized officer.
Date:
CLAYMORE SECURITIES, INC., Depositor
By
THE BANK OF NEW YORK, Trustee
By
FORM OF ASSIGNMENT
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
UNIF GIFT MIN ACT
TEN COM - as tenants in common __________ Custodian
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with Under Uniform Gifts to
right of survivor-ship and Minors Act
not as tenants in common ________________________
State
Additional abbreviations may also be used though not in the above list.
For Value Received, ___________________________________ hereby sell, assign
and transfer ____________ Units represented by this Certificate unto
________________________________
SOCIAL SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE MUST BE PROVIDED
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and does hereby irrevocably constitute and appoint ____________________________,
attorney, to transfer said Units on the books of the Trustee, with full power
and substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the Certificate in every particular, without alteration
or enlargement or any change whatever.
SIGNATURE(S) GUARANTEED BY
_____________________________________
Firm or Bank
Authorized Signature
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| Signatures must be guaranteed by a participant in the |
| Securities Transfer Agents Medallion Program ("STAMP") or |
| such other guarantee program in addition to, or in substitution |
| for, STAMP, as may be accepted by the Trustee. |
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(9) The definition of "Unitholder" is hereby amended as follows:
"Unitholder" shall mean the registered holder of any Unit of
beneficial interest as recorded on the registration books of the Trustee,
or the registered holder of any Certificate, his legal representative and
heirs, or the successors of any corporation, partnership or other legal
entity which is a registered holder of any Certificate and as such shall be
deemed a beneficiary of the related Trust created by this Indenture to the
extent of his pro rata share thereof.
(10) Section 2.03 is hereby amended and replaced in its entirety as
follows:
Section 2.03. Issue of Certificates and Establishment of Book Entry
Positions. By executing the Reference Trust Agreement and receipt for
deposited Securities, the Trustee will thereby acknowledge receipt of the
deposit of the Securities listed under "The Trust Portfolio" in the
Prospectus and referred to in Section 2.01 hereof, and simultaneously with
the receipt of said deposit, has recorded on its books, for each of the
monthly or semi-annual plans of distribution, the ownership by the
Depositor or such other person or persons as may be indicated by the
Depositor, of the aggregate number of Units specified in the Prospectus and
has delivered, or on the order of the Depositor will deliver, in exchange
for such Securities, documentation evidencing the ownership of the number
of Units specified or, if requested by the Depositor, the ownership by DTC
of all such Units and will cause such Units to be credited at DTC to the
account of the Depositor or, pursuant to the Depositor's direction and as
hereafter provided, the account of the issuer of the Letter of Credit
referred to in Section 2.01. The Trustee hereby agrees that on the date of
any Supplemental Indenture it shall acknowledge that the additional
Securities identified therein have been deposited with it by recording on
its books the ownership, by the Depositor or such other person or aggregate
number of Units to be issued in respect of such additional Securities so
deposited.
Upon the sale of Units to a purchaser, the Units will be evidenced by
a Book Entry Position unless such purchaser expressly requests that the
purchased Units be evidenced in Certificate form. Upon sale of the Units
to a purchaser who requests Units in certificated form, the Trustee shall
issue a Certificate or Certificates in the name of the purchaser and note
that such Unitholder holds units in certificated form on the books of the
Trustee. The Trustee is entitled to specify the minimum denomination of
any Certificate issued. The rights set forth in this Indenture of any
holder of Units held in certificated form shall be the same as those of any
other Unitholder.
(11) The following Section 2.07 is hereby added to Article II:
Section 2.07. Form of Certificates. Each Certificate referred to in
Section 2.03 is, and each Certificate hereafter issued shall be, in
substantially the form hereinabove recited, numbered serially for
identification, in fully registered form, transferable only on the books of
the Trustee as herein provided, executed either manually or in facsimile by
an authorized officer of the Trustee and in facsimile by the Chairman of
the Board, President or one of the Vice Presidents of the Depositor and
dated the date of execution and delivery by the Trustee. In case any
authorized officer of the Trustee or the Depositor who has signed or whose
facsimile signature has been placed upon any Certificate shall have ceased
to be such officer before any such Certificate is issued, it may be issued
with the same effect as if he were such officer at the date of issue.
(12) The last sentence of Section 3.01 is hereby amended as follows:
As used herein, the Depositor's reimbursable expenses of organizing
the Trust and sale of the Trust Units shall include the cost of the initial
preparation and typesetting of the registration statement, prospectuses
(including preliminary prospectuses), the indenture, and other documents
relating to the Trust, printing of Certificates, Securities and Exchange
Commission and state blue sky registration fees, the cost of the initial
valuation of the portfolio and audit of the Trust, the initial fees and
expenses of the Trustee, and legal and other out-of-pocket expenses related
thereto but not including the expenses incurred in the printing of
preliminary prospectuses and prospectuses, expenses incurred in the
preparation and printing of brochures and other advertising materials and
any other selling expenses.
(13) Section 3.06(b)(ii) is hereby amended as follows:
(ii) (a) For the purposes of this Section 3.06, the "Interest
Distribution" of a Unitholder who has elected to receive monthly
distributions shall be made on the basis of one-twelfth of the estimated
annual interest income to the Trust for the ensuing twelve months, after a
pro-rated initial payment and after deduction of the estimated costs and
expenses to be incurred on behalf of such Unitholders during the twelve
month period for which such interest income has been estimated.
(b) The "Interest Distribution" of a Unitholder who has elected to
receive semi-annual distributions shall be made on the basis of one-half of
the estimated annual interest income to such Trust for the ensuing twelve
months, after a pro-rated initial payment and after deduction of the
estimated costs and expenses of such Trust to be incurred during the twelve
month period for which the interest income has been estimated.
(c) In the event the amount on deposit in the Interest Account of any
Trust on a Distribution Date is not sufficient for the payment of the
amount of interest to be distributed monthly or semi-annually on the basis
of the aforesaid computation, the Trustee shall advance out of its own
funds and cause to be deposited in and credited to such Interest Account
such amount as may be required to permit payment of the monthly or semi-
annual interest distribution to be made as described above and shall be
entitled to be reimbursed, without interest, out of interest received by
such Trust subsequent to the date of such advance and subject to the
condition that any such reimbursement shall be made only under conditions
which will not reduce the funds in or available for the Interest Account to
an amount less than required for the next ensuing distribution of interest.
The Trustee's fee takes into account the costs attributable to the outlay
of capital needed to make such advances. To the extent practicable, the
Trustee shall allocate the expenses of each Trust among Units of such
Trust, giving effect within any Trust to differences in administrative and
operational cost among those who have chosen to receive distributions
monthly or semi-annually.
(d) Unitholders of any Trust desiring to receive monthly or semi-
annual distributions may elect at the time of purchase to receive
distributions on a monthly or semi-annual basis by notice to the Trustee.
Unitholders must furnish written notice to the Trustee indicating their
desire to receive monthly or semi-annual distributions. The Trustee,
within five business days of receiving such notice, shall issue to the Book
Entry Unitholder a new Book Entry Position confirmation indicating such
Unitholder's preferred distribution plan. Such notice shall be effective
with respect to subsequent distributions until changed by further notice to
the Trustee. Those wishing to change their plan of distribution must do so
by sending written notice at any time to the Trustee; holders of
Certificates must also send to the Trustee the Certificate to which the
requested change relates. Changes may be made as soon as reasonably
practicable.
(14) Section 3.08(a)(x) is hereby amended as follows:
(x) that as of any Record Date such Bonds are scheduled to be redeemed
and paid prior to the next succeeding monthly Distribution Date; provided,
however, that as the result of such sale the Trustee will receive funds in
an amount sufficient to enable the Trustee to include in the distribution
from the Principal Account on such next succeeding monthly Distribution
Date at least $1.00 per Unit; or
(15) The first paragraph of Section 5.01 is hereby amended and
restated to read as follows:
Section 5.01. Trust Evaluation. As of the Evaluation Time (a) on the
last Business Day of each year, (b) on the day on which any Unit is
tendered for redemption and (c) on any other day desired by the Trustee or
requested by the Depositor, the Trustee shall: Add (i) all moneys on
deposit in a Trust (excluding (1) cash, cash equivalents or Letters of
Credit deposited pursuant to Section 2.01 hereof for the purchase of
Contract Securities, unless such cash or Letters of Credit have been
deposited in the Interest and Principal Accounts because of failure to
apply such moneys to the purchase of Contract Securities pursuant to the
provisions of Sections 2.01, 3.03 and 3.04 hereof and (2) moneys credited
to the Reserve Account pursuant to Section 3.05 hereof), plus (ii) the
aggregate Evaluation of all Securities (including Contract Securities and
Reinvestment Securities) on deposit in such Trust as is determined by the
Evaluator (such evaluations shall take into account and itemize separately
(i) the cash on hand in the Trust or moneys in the process of being
collected from matured interest coupons or bonds matured or called for
redemption prior to maturity, (ii) the value of each issue of the
Securities in the Trust on the bid side of the market as determined by the
Evaluator pursuant to Section 4.01, and (iii) interest accrued thereon not
subject to collection and distribution. For each such Evaluation there
shall be deducted from the sum of the above (i) amounts representing any
applicable taxes or governmental charges payable out of the respective
Trust and for which no deductions shall have previously been made for the
purpose of addition to the Reserve Account, (ii) amounts representing
estimated accrued fees of the Trust and expenses of such Trust including
but not limited to unpaid fees and expenses of the Trustee, the Evaluator,
the Supervisor, the Depositor and bond counsel, in each case as reported by
the Trustee to the Evaluator on or prior to the date of evaluation, (iii)
any moneys identified by the Trustee, as of the date of the Evaluation, as
held for distribution to Unitholders of record as of a Record Date or for
payment of the Redemption Value of Units tendered prior to such date and
(iv) unpaid organizational and offering costs in the estimated amount per
Unit set forth in the Prospectus. The resulting figure is herein called a
"Trust Fund Evaluation." The value of the pro rata share of each Unit of
the respective Trust determined on the basis of any such evaluation shall
be referred to herein as the "Unit Value."
(16) The first paragraph of Section 5.02 is hereby amended as follows:
Section 5.02. Redemptions by Trustee; Purchases by Depositor. Any
Unit tendered for redemption by a Unitholder or his duly authorized
attorney to the Trustee at its unit investment trust division office shall
be redeemed by the Trustee no later than the seventh calendar day following
the day on which tender for redemption is made in proper form, provided
that if such day of payment is not a Business Day, then such payment shall
be made no later than the first Business Day prior thereto (herein referred
to as the "Settlement Date"). Unitholders must sign the request or transfer
instrument, exactly as their name appears on the tendered Certificate or on
the records of the Trustee. If the amount of redemption is $500 or less and
the proceeds are payable to the Unitholders of record at the address of
record, no signature guarantee is necessary for redemptions by individual
account owners (including joint owners). Additional documentation may be
requested, and a signature guarantee is always required, from corporations,
executors, administrators, trustees, guardians and associations. The
signatures must be guaranteed by a participant in the Securities Transfer
Agents Medallion Program (STAMP) or such other signature guarantee program
in addition to, or in substitution for, STAMP, as may be accepted by the
Trustee. Subject payment by such Unitholder of any tax or other
governmental charges which may be imposed thereon, such redemption is to be
made by payment of cash equivalent to the Unit Value determined on the
basis of a Trust Fund Evaluation made in accordance with Section 5.01
determined by the Trustee as of the Evaluation Time on the Redemption Date,
multiplied by the number of Units tendered for redemption (herein called
the "Redemption Value"), or if the Unitholder wishes to redeem a number of
Units less than all those so tendered, multiplied by the number of Units so
designated by such Unitholder for redemption. Units received for redemption
by the Trustee on any day after the Evaluation Time will be held by the
Trustee until the next day on which the New York Stock Exchange is open for
trading and will be deemed to have been tendered on such day for redemption
at the Redemption Value computed on that day.
If applicable, any Certificates evidencing Units redeemed pursuant to
this Section 5.02 shall be cancelled by the Trustee and the Unit or Units
evidenced by such Certificates shall be extinguished by such redemptions.
(17) The heading and the first sentence of Section 5.04 are hereby
amended as follows:
Section 5.04. Units Held Through the Depository Trust Company or a
Successor Clearing Agency. With the exception of Units held in
certificated form, no Unit may be registered in the name of any person
other than DTC or its nominee (or such other clearing agency registered as
such pursuant to Section 17A of the Exchange Act of 1934 designated as
successor to DTC by the Depositors, or the Trustee or the nominee thereof)
(DTC and any such successor clearing agency are herein referred to as the
"Clearing Agency") unless the Clearing Agency advises the Trustee that it
is no longer willing or able properly to discharge its responsibilities
with respect to the Units and the Trustee is unable to locate a qualified
successor clearing agency, in which case the Trustee shall notify the
Clearing Agency and instruct it to provide the Trustee with the name and
address of all persons who are the beneficial owners of Units as registered
on the books of the Clearing Agency (the "Owners").
(18) Article V is hereby amended by adding the following sections:
Section 5.06. Transfer of Units; Interchange of Certificates. A
Unitholder may transfer any of his Units by making a written request to the
Trustee at its unit investment trust office and, in the case of Units
evidenced by a Certificate, by presenting and surrendering such Certificate
at such office properly endorsed or accompanied by a written instrument or
instruments of transfer in form satisfactory to the Trustee. Unitholders
must sign such written request, and such Certificate of transfer
instrument, exactly as their name appears on the records of the Trustee and
on any Certificate representing the Units to be transferred. Such
signature must be guaranteed by a participant in the Securities Transfer
Agents Medallion Program ("STAMP") or such other signature guarantee
program in addition to, or in substitution for, STAMP, as may be accepted
by the Trustee. Such transfer shall thereupon be made on the records of
the Trustee and, if appropriate, a new registered Certificate or
Certificates for the same number of Units of the same Trust shall be issued
in exchange and substitution therefor. Certificates issued pursuant to
this Agreement are interchangeable for one or more other Certificates of
the same Trust in an equal aggregate number of Units and all Certificates
issued shall be issued in denominations of one Unit or any whole multiple
thereof as may be requested by the Unitholder. The Trustee may deem and
treat the person in whose name any Unit or Certificate shall be registered
upon the books of the Trustee as the owner of such Unit or Certificate for
all purposes hereunder and the Trustee shall not be affected by any notice
to the contrary. The transfer books maintained by the Trustee for each
Trust for the purpose of this Section 5.06 shall be closed for an
individual Trust as such Trust is terminated pursuant to Article IX hereof.
A sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any such transfer or interchange shall be
paid to the Trustee. A Unitholder may be required to pay $2 (or such other
amount as may be specified by the Trustee and approved by the Depositor)
for each new Certificate issued on any such transfer or interchange.
All Certificates cancelled pursuant to this Agreement, other than
those endorsed for transfer, may be cremated or otherwise destroyed by the
Trustee.
Section 5.07. Replacement of Certificates. In case any Certificate shall
become mutilated or be destroyed, stolen or lost, the Trustee shall execute
and deliver a new Certificate in exchange and substitution therefor upon
the Unitholder's furnishing the Trustee with proper identification and
satisfactory indemnity, complying with such other reasonable regulations
and conditions as the Trustee may prescribe and paying such expenses as the
Trustee may incur, provided, however, that if the particular Trust has
terminated or is in the process of termination, the Trustee, in lieu of
issuing such new Certificate, may, upon the terms and conditions set forth
herein, make the distributions set forth in Section 9.02 hereof. Any
mutilated Certificate shall be duly surrendered and cancelled before any
duplicate Certificate shall be issued in exchange and substitution
therefor. Any duplicate Certificate issued pursuant to this Section 5.07
shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time. Upon issuance of any
duplicate Certificate pursuant to this Section 5.07, the Certificate
claimed to have been lost, stolen or destroyed shall become null and void
and of no effect, and any bona fide purchaser thereof shall have only such
rights as are afforded under Article 8 of the Uniform Commercial Code to a
holder presenting a Certificate for transfer in the case of an over issue.
(19) The second paragraph of Section 9.02 is hereby amended as
follows:
In the event of a termination, the Trustee shall proceed to liquidate
the Securities then held and make the payments and distributions provided
for hereinafter in this Section 9.02 based on such Unitholder's pro rata
interest in the balance of the Principal and Interest Accounts after the
deductions herein provided. Written notice shall be given by the Trustee in
connection with any termination to each Unitholder at his address appearing
on the registration books of the Trustee and in connection with a Mandatory
Termination Date such notice shall be given no later than 30 days before
the Mandatory Termination Date. For Unitholders holding units in
certificated form, written notice of any termination specifying the time or
times at which such Unitholders may surrender their Certificates for
cancellation shall be given to each such Unitholder.
(20) Subsection (d) of Section 9.02 is hereby amended as follows:
(d) make final distributions from such Trust, as follows:
(i) to each Unitholder receiving distribution in cash, upon surrender
for cancellation of his Certificate or Certificates, if applicable, such
holder's pro rata share of the cash balances of the Interest and Principal
Accounts; and
(ii) on the conditions set forth in Section 3.05 hereof, to all
Unitholders, upon surrender for cancellation of their respective
Certificate or Certificates, if applicable, their pro rata share of the
balance of the Reserve Account.
(21) Section 9.03 is amended by adding the following at the end of the
final paragraph:
In the event that all of the Unitholders holding Certificates of such
Trust shall not surrender their Certificates for cancellation within six
months after the time specified in the above-mentioned written notice, the
Trustee shall give a second written notice to such remaining Unitholders to
surrender their written Certificates for cancellation and receive the
liquidation distribution with respect thereto. If within one year after
the second notice all the Certificates of such Trust shall not have been
surrendered for cancellation, the Trustee may take steps, or may appoint an
agent to take appropriate steps, to contact such remaining Unitholders
concerning surrender of their Certificates and the cost thereof shall be
paid out of the moneys and other assets which remain in such Trust
hereunder.
This Reference Trust Agreement shall be deemed effective when executed and
delivered by the Sponsor and the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Reference Trust
Agreement to be duly executed.
CLAYMORE SECURITIES, INC. Depositor
By: /s/ Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
THE BANK OF NEW YORK, Trustee
By: /s/ Xxxxxx Xxxxxxx
Title: Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
CLAYMORE SECURITIES DEFINED PORTFOLIOS, SERIES 125
(Note: Incorporated herein and made a part hereof is the "Portfolio" as set
forth in the Prospectus.)
