Exhibit 1.1
CLAYMORE SECURITIES DEFINED PORTFOLIOS,
SERIES 239
CLAYM ORE MUNICIPAL PORTFOLIO (2011-2015), SERIES 8
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated as of August 30, 2005, 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 for each separate Trust created under this Series.
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(s) hereto have been
deposited in the Trust(s) 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.
333-126911) 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(s) referred to in Section
2.03 shall be equal to the "Number of Units" in the Statement of
Financial Condition in the Prospectus.
(7) 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:
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 __________
(Cust) (Minor)
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivor-ship Under Uniform Gifts to Minors Act
and 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 BEPROVIDED
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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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(8) The definition of "Supplemental Indenture" is hereby deleted
in its entirety.
(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 2.01 is hereby amended and replaced in its entirety
as follows:
Section 2.01. Deposit of Securities. The Depositor,
on the date of the Reference Trust Agreement, has deposited with the
Trustee in trust the Securities and contracts (or cash or a letter of
credit in the amount necessary to settle any contracts for the purchase
of securities entered into by the Trustee pursuant to the instructions
of the Depositor) for the purchase of Contract Securities listed under
"The Trust Portfolio" in the Prospectus in bearer form or duly endorsed
in blank or accompanied by all necessary instruments of assignment and
transfer in proper form or Contract Securities relating to such
Securities to be held, managed and applied by the Trustee as herein
provided. The Depositor shall deliver the Securities listed in said
Prospectus which were not actually delivered concurrently with the
execution and delivery of the Reference Trust Agreement and which were
represented by Contract Securities to the Trustee within 10 calendar
days after said execution and delivery (the "Delivery Period"). In the
event that the purchase of Contract Securities pursuant to any contract
shall not be consummated in accordance with said contract or if the
Securities represented by Contract Securities are not delivered to a
Trust in accordance with this Section 2.01 and the moneys, or, if
applicable, the moneys drawn on the Letter of Credit, deposited by the
Depositor are not utilized for Section 3.17 purchases of Replacement
Bonds, such funds, to the extent of the purchase price of failed
Contract Securities for which no Replacement Bonds were acquired
pursuant to Section 3.17, plus all amounts described in the next
succeeding sentence, shall be credited to the Principal Account and
distributed pursuant to Section 3.06 to Unitholders of record as of the
Record Date next following the failure of consummation of such
purchase. The Depositor shall cause to be refunded to each Unitholder
his pro rata portion of the sales charge levied on the sale of Units to
such Unitholder attributable to such failed Contract Security. Any
amounts remaining from moneys drawn on the Letter of Credit which are
not used to purchase Replacement Bonds or are not used to provide
refunds to Unitholders shall be paid to the Depositor. The Trustee is
hereby irrevocably authorized to effect registration or transfer of the
Securities in fully registered form to the name of the Trustee or to
the name of its nominee or to hold the Securities in a clearing agency
registered with the Securities and Exchange Commission or in a book
entry system operated by the Federal Reserve Board.
(11) 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 plans of distribution provided for in the
Prospectus, 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, cash or
a letter of credit, 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 number
of Units in a Trust may be increased through a split of the Units or
decreased through a reverse split thereof, as directed by the
Depositor, on any day on which the Depositor is the only Unitholder of
such Trust, which revised number of Units shall be recorded by the
Trustee on its books. The Trustee hereby agrees that on the date of any
deposit of additional Securities pursuant to Section 2.05 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 persons as may be indicated by the
Depositor, of the aggregate number of Units to be issued in respect of
such additional Securities so deposited.
Effective as of the Evaluation Time on August 30, 2005, in the
event that the aggregate value of Securities in the Trust has increased
since the evaluation immediately prior to the deposit of the Trust on
August 30, 2005, the Trustee shall issue such number of additional
Units to the Unitholder of outstanding Units immediately prior to the
deposit of the Trust on August 30, 2005, that the price per Unit
computed as of the Evaluation Time on August 30, 2005, including the
maximum applicable sales charge shall equal approximately $10 per Unit
(based on the number of Units outstanding as of said Evaluation Time,
including the additional Units issued pursuant to this sentence); in
the event that the aggregate value of Securities in the Trust Fund has
decreased since the evaluation immediately prior to the deposit of the
Trust on August 30, 2005, there will be a reverse split of the
outstanding Units, and said Unitholder will surrender to the Trustee
for cancellation such number of Units, that the price per Unit computed
as of the Evaluation Time on August 30, 2005, including the maximum
applicable sales charge shall equal approximately $10 per Unit (based
on the number of Units outstanding as of said Evaluation Time,
reflecting cancellation of Units pursuant to this sentence).
Upon the sale of Units to a purchaser, the Units will be
evidenced by a Book Entry Position unless, if so provided for in the
Prospectus, 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.
(12) Section 2.05(a) is hereby amended and replaced in its
entirety as follows:
Section 2.05. Deposit of Additional Securities. (a) Subject to the
requirements set forth below in this Section, the Depositor may, on any Business
Day (the "Trade Date"), subscribe for Additional Units as follows:
(1) Prior to the Evaluation Time defined in Section 4.01 on
the Trade Date, the Depositor shall provide notice (the "Subscription
Notice") to the Trustee, by telephone or by written communication, of
the Depositor's intention to subscribe for Additional Units. The
Subscription Notice shall identify the Additional Securities to be
acquired (unless such Additional Securities are a precise replication
of the then existing portfolio) and shall either (i) specify the
quantity of Additional Securities to be deposited by the Depositor on
the settlement date for such subscription or (ii) instruct the Trustee
to purchase Additional Securities with an aggregate cost as specified
in the Subscription Notice.
(2) Promptly following the Evaluation Time on such Business
Day, the Depositor shall verify with the Trustee, the number of
Additional Units to be created.
(3) Not later than the time on the settlement date for such
subscription when the Trustee is to deliver or assign the Additional
Units created thereby, the Depositor shall deposit with the Trustee (i)
any Additional Securities specified in the Subscription Notice (or
contracts to purchase such Additional Securities together with cash or
a letter of credit in the amount necessary to settle such contracts) or
(ii) cash or a letter of credit in the amount equal to the aggregate
value of the Additional Securities to be purchased by the Trustee, as
specified in the Subscription Notice, together with, in each case, Cash
as defined below. "Cash" means, as to the Principal Account, cash or
other property (other than Securities) on hand in the Principal Account
or receivable and to be credited to the Principal Account as of the
Evaluation Time on the Business Day preceding the Trade Date (other
than amounts to be distributed solely to persons other than persons
receiving the distribution from the Principal Account as holders of
Additional Units created by the deposit), and, as to the Interest
Account, interest received by the Trust as of the Evaluation Time on
the Business Day preceding the Trade Date or receivable by the Trust in
respect of interest or other distributions declared but not received as
of the Evaluation Time on the Business Day preceding the Trade Date,
reduced by the amount of any interest received or receivable on any
Security allocable (in accordance with the Trustee's calculation of the
monthly distribution from the Interest Account pursuant to Section
3.06) to a distribution made or to be made in respect of a Record Date
occurring prior to the Trade Date. Each deposit made pursuant to this
Section 2.05 during the 90 days following the initial date of deposit
shall replicate, to the extent practicable, as specified in
subparagraph (b), the Original Proportionate Relationship, as defined
hereinabove. Each deposit made pursuant to this Section 2.05 after the
90 days following the initial date of deposit made pursuant to Section
2.01 hereof (except for deposits made to replace failed Contract
Securities if such deposits occur within 20 days from the date of a
failure occurring within such initial 90 day period) shall maintain
exactly the proportionate relationship existing among the Securities as
of the expiration of such 90 day period.
(4) On the settlement date for a subscription, the Trustee
shall, in exchange for the Securities and cash or Letter of Credit
described above, issue and deliver to or assign in the name of or on
the order of the Depositor the number of Units verified by the
Depositor with the Trustee.
(5) Any Additional Securities shall be held, administered and
applied by the Trustee in the same manner as herein provided for the
Securities.
(6) In the event the Depositor fails to take such action
required by paragraph (3) above, the Trustee shall, on the settlement
date for such subscription, settle the securities transactions
specified in the Subscription Notice.
(7) Neither the Trust nor Unitholders of the Trust will be
responsible for any loss resulting from the failure of the Depositor to
take such action required by paragraph (3) above.
(8) The acceptance of Additional Units by the Depositor in
accordance with the provisions of paragraph (a) of this Section shall
be deemed a certification by the Depositor that the deposit or purchase
of Additional Securities associated therewith complies with the
conditions of this Section 2.05.
(13) 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.
(14) Section 3.01 is hereby amended as follows:
Section 3.01. Initial Costs. Subject to reimbursement as
hereinafter provided, the cost of organizing the Trust and sale of the
Trust Units shall be borne by the Depositor, provided, however, that
the liability on the part of the Depositor under this Section shall not
include any fees or other expenses incurred in connection with the
administration of the Trust subsequent to the deposit referred to in
Section 2.01. Upon notification from the Depositor that the primary
offering period is concluded, or after six months, at the discretion of
the Depositor, the Trustee shall withdraw from the Account or Accounts
specified in the Prospectus or, if no Account is therein specified,
from the Principal Account as further set forth in Section 3.04, and
pay to the Depositor the Depositor's reimbursable expenses of
organizing the Trust and sale of the Trust Units in an amount certified
to the Trustee by the Depositor but not in excess of the estimated
per-Unit amount set forth in the Prospectus multiplied by the number of
Units outstanding as of the conclusion of such period. If the cash
balance of the Principal Account is insufficient to make such
withdrawal, the Trustee shall, as directed by the Depositor, sell
Securities identified by the Depositor, or distribute to the Depositor
Securities having a value, as determined under Section 4.01 as of the
date of distribution, sufficient for such reimbursement. The
reimbursement provided for in this Section shall be for the account of
the Unitholders of record at the conclusion of the period described
above. Any assets deposited with the Trustee in respect of the expenses
reimbursable under this Section shall be held and administered as
assets of the Trust for all purposes hereunder. The Depositor shall
deliver to the Trustee any cash identified in the "Statement of
Financial Condition" of the Trust included in the Prospectus not later
than the First Settlement Date and the Depositor's obligation to make
such delivery shall be secured by cash or the Letter of Credit
deposited pursuant to Section 2.01. Any cash which the Depositor has
identified as to be used for reimbursement of expenses pursuant to this
Section shall be held by the Trustee, without interest, and reserved
for such purpose and, accordingly, prior to the conclusion of the
primary offering period or after six months, at the discretion of the
Depositor, shall not be subject to distribution or, unless the
Depositor otherwise directs, used for payment of redemptions in excess
of the per-Unit amount payable pursuant to the next sentence. If a
Unitholder redeems Units prior to the conclusion of the primary
offering period or after six months, at the discretion of the
Depositor, the Trustee shall pay to the Unitholder, in addition to the
Redemption Price of the tendered Units, an amount equal to the
estimated per-Unit cost of organizing the Trust and the sale of Trust
Units set forth in the Prospectus multiplied by the number of Units
tendered for redemption; to the extent the cash on hand in the Trust is
insufficient for such payment, the Trustee shall have the power to sell
Securities in accordance with Section 5.02. 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.
(15) 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 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) 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 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 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 a particular plan of distribution is provided for in
the Prospectus.
(c) Unitholders of any Trust desiring to receive according to
a particular plan of distribution provided for in the Prospectus may
elect at the time of purchase to receive distributions by notice to the
Trustee. Unitholders must furnish written notice to the Trustee
indicating their desire to receive such 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, if multiple distribution plans are provided for in the
Prospectus, 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.
(16) 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 $0.01 per Unit; or
(17) Section 4.01(b) is hereby amended and replaced in its
entirety as follows:
(b) In making the evaluations the Evaluator may determine the
value of each issue of the Securities in each Trust by the following
methods or any combination thereof which it deems appropriate: (i) on
the basis of current bid or offering prices of such Securities as
obtained from investment dealers or brokers (including the Depositor)
who customarily deal in public bonds comparable to those held by the
Trust, or (ii) if bid or offering prices are not available for any of
such Securities, on the basis of bid or offering prices for comparable
Securities, or (iii) by appraisal. The Evaluator may utilize a
securities pricing service to help determine the value of each issue so
long as such service uses a similar methodology to determine securities
prices. Securities prices for primary market purchases shall be based
upon institutional offering prices of said Securities. Securities
prices for redemptions shall be based on institutional bid prices of
said Securities. In addition to the methods of determining the value of
the Securities described above, the Evaluator may make the initial
evaluation of Securities in whole or in part by reference to the Blue
List of Current Municipal Offerings (a daily publication containing the
current public offering prices of public bonds of all grades currently
being offered by dealers and banks).
(18) 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."
(19) 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 third 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.
(20) 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, if applicable, 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").
(21) 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, if applicable, 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.
(22) 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.
(23) 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.
(24) Section 9.03 is amended by adding the following at the end
of the final paragraph:
If applicable, 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.
(25) The first sentence of the Introduction is hereby modified as
follows:
These Standard Terms and Conditions of Trust, effective
February 6, 2002, shall be applicable to certain Claymore Securities
Defined Portfolios established after the date of effectiveness hereof
containing certain debt obligations, as provided in this paragraph.
(26) The definition of "Bonds" in Article I is hereby modified as
follows:
(3) "Bonds" shall mean such of the debt obligations, including
"when issued" and/or "regular way" contracts, if any, for the purchase
of certain bonds, and cash or a certified check or checks and/or an
irrevocable letter or letters of credit in the amount required for such
purchase, deposited in irrevocable trust and listed under "The Trust
Portfolio" in the Prospectus, and any obligations received in exchange,
substitution or replacement for such obligations pursuant to Sections
3.09 and 3.18 hereof, as may from time to time continue to be held as a
part of the Trust to which such Reference Trust Agreement relates.
(27) The first paragraph of Section 3.17 is hereby amended and
replaced with the following:
Section 3.17. Replacement Bonds. In the event that any Bond is
not delivered due to any occurrence, act or event beyond the control of
the Depositor and of the Trustee (such a Bond being herein called a
"Special Bond"), the Depositor may so certify to the Trustee and
instruct the Trustee to purchase Replacement Bonds which have been
selected by the Depositor having a cost and an aggregate principal
amount not in excess of the cost and aggregate principal amount of the
Special Bonds not so delivered. To be eligible for inclusion in the
Trust, the Replacement Bonds which the Depositor selects must: (i) for
Trusts containing municipal bonds, yield current interest which is
exempt from taxation for federal income tax purposes and, if the Trust
is a State Trust, exempt from taxation under the personal income tax
law of the particular state involved; (ii) have a fixed maturity or
disposition date comparable to the bonds replaced; (iii) be purchased
at a price that results in a yield to maturity and in a current return,
in each case as of the execution and delivery of the applicable
Reference Trust Agreement, which is approximately equivalent to the
yield maturity and current return of the Special Bonds which failed to
be delivered and for which the Replacement Bonds are substituted; (iv)
be purchased within twenty days after delivery of notice of the failed
contract to the Trustee or to the Depositor, whichever occurs first;
(v) for an uninsured trust, be rated in the category BBB or better or
its equivalent by at least one national rating organization and (vi)
for an insured trust, be rated in the category AAA or its equivalent by
at least one national rating organization. Any Replacement Bonds
received by the Trustee shall be deposited hereunder and shall be
subject to the terms and conditions of this Indenture to the same
extent as other Bonds deposited hereunder. No such deposit of
Replacement Bonds shall be made after the earlier of (i) 90 days after
the date of execution and delivery of the applicable Reference Trust
Agreement or (ii) the first Distribution Date to occur after the date
of execution and delivery of the applicable Reference Trust Agreement.
(28) Article III is hereby amended by adding the following
Section 3.19:
Section 3.19. Bookkeeping and Administrative Expenses. If so
provided in the Prospectus, as compensation for providing bookkeeping
and other administrative services of a character described in Section
26(a)(2)(C) of the Investment Company Act of 1940 to the extent such
services are in addition to, and do not duplicate, the services to be
provided hereunder by the Trustee or the Depositor for providing
supervisory services, the Depositor shall receive at the times
specified in Section 3.06, against a statement or statements therefore
submitted to the Trustee an aggregate annual fee in an amount which
shall not exceed that amount set forth in the Prospectus, calculated as
specified in Section 3.06, but in no event shall such compensation,
when combined with all compensation received from other series of the
Trust or other unit investment trusts sponsored by the Depositor or its
affiliates for providing such bookkeeping and administrative services
in any calendar year exceed the aggregate cost to the Depositor for
providing such services to such unit investment trusts. Such
compensation may, from time to time, be adjusted provided that the
total adjustment upward does not, at the time of such adjustment,
exceed the percentage of the total increase, during the period from the
Trust Agreement to the date of any such increase, in consumer prices
for services as measured by the United States Department of Labor
Consumer Price Index entitled "All Services Less Rent of Shelter" or
similar index as described under Section 3.18. The consent or
concurrence of any Unitholder hereunder shall not be required for any
such adjustment or increase. Such compensations shall be paid by the
Trustee, upon receipt of invoice therefore from the Depositor, upon
which, as to the cost incurred by the Depositor of providing services
hereunder the Trustee may rely, and shall be charged against the
Interest and Principal Accounts as specified in Section 3.06. The
Trustee shall have no liability to any Unitholder or other person for
any payment made in good faith pursuant to this Section.
If the cash balance in the Interest and Principal Accounts
shall be insufficient to provide for amounts payable pursuant to this
Section 3.19, the Trustee shall have the power to sell (1) Securities
from the current list of Securities designated to be sold pursuant to
Section 5.02 hereof, or (2) if no such Securities have been so
designated, such Securities as the Trustee may see fit to sell in its
own discretion, and to apply the proceeds of any such sale in payment
of the amounts payable pursuant to this Section 3.19.
Any moneys payable to the Depositor pursuant to this Section
3.19 shall be secured by a prior lien on the Trust except that no such
lien shall be prior to any lien in favor of the Trustee under the
provisions of Section 6.04.
(29) Section 7.05 is hereby amended in its entirety as follows:
Section 7.05. Compensation. The Depositor shall receive at the
times set forth in Sections 3.06 and 3.18 as compensation for
performing portfolio supervisory services, 3.06 and 3.19 as
compensation for performing bookkeeping and administrative services and
Sections 3.06 and 4.03 as compensation for performing evaluation
services, such amount and for such periods as specified in the
Prospectus and/or Reference Trust Agreement. The computation of such
compensation for performing portfolio supervisory services and
bookkeeping and administrative services shall be made on the basis of
the largest number of Units outstanding at any time during the period
for which such compensation is being computed. The compensation for
performing evaluation services shall be made on the basis of the
principal amount of Bonds in such Trust on a monthly basis. At no time,
however, will the total amount received by the Depositor for services
rendered to all series of Claymore Securities Defined Portfolios in any
calendar year exceed the aggregate cost to them of supplying such
services in such year. Such rate may be increased by the Trustee from
time to time, without the consent or approval of any Unitholder, or the
Depositor, by amounts not exceeding the proportionate increase during
the period from the date of such Prospectus and/or Reference Trust
Agreement to the date of any such increase, in consumer prices as
published either under the classification "All Services Less Rent" in
the Consumer Price Index published by the United States Department of
Labor or, if such Index is no longer published, a similar index.
In the event that any amount of the compensation paid to the
Depositor pursuant to Sections 3.06, 3.18 and 3.19 is found to be an
improper charge against the Trust, the Depositor shall reimburse the
Trust in such amount. An improper charge shall be established if a
final judgment or order for reimbursement of the Trust shall be
rendered against the Depositor and such judgment or order shall not be
effectively stated or a final settlement is established in which the
Depositor agrees to reimburse the Trust for amounts paid to the
Depositor pursuant to this Section 7.05.
The Depositor may employ agents in connection with its duties
referenced in Section 7.05 and shall not be answerable for the default
or misconduct of such agents if they shall have been selected with
reasonable care. The fees of such agents shall be reimbursable to the
Depositor from the Trust, provided, however, that the amount of such
reimbursement in any year (i) shall reduce the amount payable to the
Depositor for such year with respect to the service in question and
shall not exceed the maximum amount payable to the Depositor for such
service for such year and (ii) if such agent is an affiliate of the
Depositor, the amount of the reimbursement, when combined with (a) all
compensation received by such agent form other series of the Trust or
other unit investment trusts sponsored by the Depositor or its
affiliates and (b) the amount payable to the Depositor from the Trust
and from other series of the Trust or other unit investment trusts
sponsored by the Depositor or its affiliates in respect of the service
in question, shall not exceed the aggregate cost of such agent and the
Depositor of providing such service. The Trustee shall pay such
reimbursement against the Depositor's invoice therefore upon which the
Trustee may rely as the Depositor's certification that the amount
claimed complies with the provisions of this paragraph.
(30) Section 9.05 is hereby revised to read as follows:
Section 9.05. Written Notice. Any notice, demand, direction or instruction
to be given to the Depositor, Evaluator or Supervisor hereunder shall be in
writing and shall be duly given if mailed or delivered to the Depositor, 0000
Xxxxxxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, or at such other address as shall
be specified by the Depositor to the other parties hereto in writing.
(31) The second paragraph of Section 6.02 is replaced in its
entirety as follows:
An audit of the accounts of each Trust shall not be conducted
unless the Depositor determines that such an audit is required. In the
event that the Depositor determines that an audit is required, the
accounts of each Trust shall be audited not less than annually by
independent public accountants designated from time to time by the
Depositor and reports of such accountants shall be furnished by the
Trustee, upon request, to Unitholders. The Trustee, however, in
connection with any such audits shall not be obligated to use Trust
assets to pay for such audits in excess of the amounts, if any,
indicated in the Prospectus relating to such Trust. The Trustee shall
maintain and provide, upon the request of a Unitholder or the
Depositor, the Unitholders' or the Unitholder's designated
representative with the costs basis of the Securities represented by
the Unitholder's Units.
(32) 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 third 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.
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/ Xxxxxxxx Xxxxxxx
-----------------------------------------------------
Title: Senior Managing Director and
General Counsel
THE BANK OF NEW YORK, Trustee
By /s/ Xxxx Xxxxxxx
-----------------------------------------------------
Title: Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
CLAYMORE SECURITIES DEFINED PORTFOLIOS, SERIES 239
(Note: Incorporated herein and made a part hereof is the "Trust
Portfolio(s)" as set forth in the Prospectus.)
