EXHIBIT 1.1
CLAYMORE SECURITIES DEFINED PORTFOLIOS,
SERIES 147
S&P LARGECAP 100
INDEX PORTFOLIO, SERIES 10
REFERENCE TRUST
AGREEMENT
This Reference Trust Agreement dated as of May 6, 2003, 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 December 18, 2001" (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 equity 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. 333-104782) 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 2.03, (b) increase or decrease in
connection with an adjustment to the number of Units pursuant to
Section 2.03, or (c) decrease by the number of Units redeemed pursuant
to Section 5.02.
(3) The term "Deferred Sales Charge" shall mean the "deferred
sales fee" as described in the Prospectus.
(4) The terms "Income Account Record Date" and "Capital
Account Record Date" shall mean the dates set forth under "Essential
Information--Record Dates" in the Prospectus.
(5) The terms "Income Account Distribution Date" and "Capital
Account Distribution Date" shall mean the dates set forth under
"Essential Information--Distribution Dates" in the Prospectus.
(6) The term "Initial Date of Deposit" shall mean the date of
this Reference Trust Agreement as set forth above.
(7) Section 2.03 is hereby amended by adding the following
sentence as the third sentence of Section 2.03:
"Effective as of the Evaluation Time on May 6, 2003, in
the event that the aggregate value of Securities in the Trust has
increased since the evaluation on May 5, 2003, the Trustee shall
issue such number of additional Units to the Unitholder of outstanding
Units as of the close of business on May 5, 2003, that the price
per Unit computed as of the Evaluation Time on May 6, 2003, plus
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 on May 5, 2003, 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 May 6,
2003, plus 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)."
(8) 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(s) of
Financial Condition in the Prospectus.
(9) 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 organization 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."
(10) For the purposes of Section 6.01(g)(i), the liquidation
amount shall be 20% of the total value of all Securities deposited in
the Trust(s) during a Trust's initial offering period at the time of
each such deposit.
(11) Article III is hereby amended by adding the following
section:
SECTION 3.23. 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 3.05, against a statement or statements therefor
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 3.05, 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 therefor 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 Income
and Capital Accounts as specified in Section 3.05. 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 Income and Capital Accounts shall
be insufficient to provide for amounts payable pursuant to this Section
3.23, 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 3.23.
Any moneys payable to the Depositor pursuant to this Section
3.23 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.
(12) The phrases "supervisory services," "supervisory
portfolio services" and "portfolio supervisory services" in Sections
3.18 are hereby replaced with the phrase "portfolio supervisory
services and bookkeeping and administrative expenses."
(13) Section 7.05 is hereby amended and replaced in its
entirety with the following:
SECTION 7.05. COMPENSATION. The Depositor shall receive at the
times set forth in Sections 3.05, 3.18, 3.23 and 4.03 as compensation
for performing portfolio supervisory services, bookkeeping and
administrative expenses and evaluation services, such amount and for
such periods as specified the Prospectus and/or Reference Trust
Agreement. The compensation for providing portfolio supervisory
services, bookkeeping and administrative expenses and evaluation
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. 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 3.05, 3.18 and 3.23 and 4.03 is found to
be an improper charge against a 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 stayed 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.
(14) The first two sentences of Section 3.22 are hereby
amended and replaced with the following:
SECTION 3.22. CREATION AND DEVELOPMENT FEE. If the Prospectus
related to a Trust specifies a creation and development fee, the
Trustee shall, on or immediately after the end of the initial offering
period, withdraw from the Capital Account, an amount equal to the
unpaid creation and development fee as of such date and credit such
amount to a special non-Trust account designated by the Depositor out
of which the creation and development fee will be distributed to the
Depositor (the "Creation and Development
Account"). The creation and development fee is the per unit amount
specified in the Prospectus for the Trust.
(15) Article III is hereby amended by adding the following
section:
SECTION 3.24. LICENSE FEES. If so provided in the Prospectus,
the Depositor may enter into a Licensing Agreement (the "AGREEMENT")
with a licensor (the "LICENSOR") described in the Prospectus in which
the Trust(s), as consideration for the licenses granted by the
Licensor for the right to use its trademarks and trade names,
intellectual property rights or for the use of databases and research
owned by the Licensor, will pay a fee set forth in the Agreement to
the applicable Licensor or the Depositor to reimburse the Depositor
for payment of the expenses.
If the Agreement provides for an annual license fee computed
in whole or part by reference to the average daily net asset value of
the Trust assets, for purpose of calculating the accrual of estimated
expenses such annual fee shall accrue at a daily rate and the Trustee
is authorized to compute an estimated license fee payment (i) until the
Depositor has informed the Trustee that there will be no further
deposits of additional Securities, by reference to an estimate of the
average daily net asset value of the Trust assets which the Depositor
shall provide the Trustee, (ii) thereafter and during the calendar
quarter in which the last business day of the period described in
clause (i) occurs, by reference to the net asset value of the Trust
assets as of such last business day, and (iii) during each subsequent
calendar quarter, by reference to the net asset value of the Trust
assets as of the last business day of the preceding calendar quarter.
The Trustee shall adjust the net asset value (Trust Fund Evaluation) as
of the dates specified in the preceding sentence to account for any
variation between accrual of estimated license fee and the license fee
payable pursuant to the Agreement, but such adjustment shall not affect
calculations made prior thereto and no adjustment shall be made in
respect thereof.
(16) Section 2.05 (b) is replaced in its entirety with the
following:
(b) Additional Securities deposited during the 90 days
following the initial deposit made pursuant to Section 2.01 hereof
shall maintain as closely as practicable the Original Proportionate
Relationship, except as provided in this Section 2.05(b). Additional
Securities may be deposited or purchased in round lots; if the amount
of the deposit is insufficient to acquire round lots of each Security
to be acquired, the Additional Securities shall be deposited or
purchased in the order of the Security in the Trust most under
represented immediately before the deposit with respect to the
Original Proportionate Relationship. Instructions to purchase
Additional Securities under this Section shall be in writing and shall
direct the Trustee to purchase, or enter into contracts to purchase,
Additional Securities; such instructions shall also specify the name,
CUSIP number, if any, aggregate amount of each such Additional
Security and price or range of price. If, at the time of a subsequent
deposit under this Section, Securities of an Original Issue are
unavailable, cannot be purchased at reasonable prices or their
purchase is prohibited or restricted by applicable law, regulation or
policies, in lieu of the portion of the deposit that would otherwise
be represented by those Securities, the Depositor may (A) deposit (or
instruct the Trustee to purchase) Securities of another Original Issue
or (B) deposit cash or a letter of credit with instructions to acquire
the Securities of such Original Issue when they become available.
(17) Section 4.01(c) is replaced in its entirety by the
following:
(c) For purposes of the Trust Fund Evaluations required by
Section 5.01 in determining Redemption Value and Unit Value and for
secondary market purchases, Evaluation of the Securities shall be made
in the manner described in 4.01(b), on the basis of the last available
bid prices of the Securities (rather than offer prices), except in
those cases in which the Securities are listed on a national
securities exchange or a foreign securities exchange and the last
available sale prices are utilized. In addition, with respect to each
Security which is traded principally on a foreign securities exchange,
the Evaluator shall (i) not make the addition specified in the fourth
sentence of Section 4.01(b) and (ii) shall reduce the Evaluation of
each Security by the amount of any liquidation costs (other than
brokerage costs incurred on any national securities exchange) and any
capital gains or other taxes which would be incurred by the Trust upon
the sale of such Security, such taxes being computed as if the
Security were sold on the date of the Evaluation.
(18) Section 2.05(a)(3) is hereby amended by adding the
following after the last sentence:
Notwithstanding the foregoing, if the Trust involved seeks to
consist of Securities included in a securities index, deposits of
additional securities shall consist of Securities included in the
applicable index as determined by the Depositor or its designee.
(19) Section 3.05(b)(i) is hereby amended by adding the
following after the last sentence:
Notwithstanding anything to the contrary contained in this
paragraph, if a Trust has elected to be treated as a "regulated
investment company" as defined in the Internal Revenue Code and the
Trust's portfolio is based upon an index, the Depositor or its designee
may, but is not obligated to, direct the investment of any amounts held
in the Capital Account that have not previously been used to pay for
the redemption of Units tendered to a Trust into any Securities
included in the applicable index.
(20) Section 3.05 is hereby amended by adding the following as
subsection (c):
(f) Notwithstanding the foregoing, if a Trust has elected to
be treated as a "regulated investment company" as defined in the
Internal Revenue Code, the Trustee may make such additional
distributions to Unitholders as shall be determined by the Depositor
or such agent as the Depositor shall designate to be necessary or
desirable to maintain the status of each Trust as a regulated
investment company or to avoid imposition of any income or excise
taxes on undistributed income of the Trust. The Trustee shall be
authorized to rely conclusively upon the direction, and shall have no
duty to make any additional distributions from a Trust in the absence
of such direction. The Trustee shall have no liability for any tax or
other liability incurred by reason of action or inaction resulting
from such direction. The fees of such agent designated by the
Depositor shall be an expense of the Trust reimbursable to the Trustee
in accordance with Section 6.04.
(21) Subsection 3.07 is hereby amended by adding the following
as subsection (c):
(b) If a Trust has elected to be treated as a "regulated
investment company" as defined in the Internal Revenue Code, and not
withstanding anything to the contrary in 3.07(a) and (b), the
Depositor 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 Depositor if the Depositor shall have determined
that any one or more of the following conditions exist:
(1) that there has been a default in the payment of principal
of or interest on any outstanding debt obligations of the issuer of
such Securities;
(2) that the price of any such Security has declined to such
an extent, as a result of adverse issuer credit factors, so that in
the opinion of the Depositor the retention of such Securities would be
detrimental to the interest of the Unitholders;
(3) that such sale is necessary or advisable (i) to maintain
the qualification of the Trust as a regulated investment company or
(ii) to provide funds to make any distribution for a taxable year in
order to avoid imposition of any income or excise taxes on
undistributed income in the Trust;
(4) that the Security has been removed from the applicable
index; or
(5) the Depositor or its designee determines that such sale is
appropriate.
Upon receipt of such direction from the Depositor, the Trustee
shall proceed to sell the specified Securities in such manner as the
Depositor or its designee shall direct. If the Trust's portfolio is
based upon an index, the Depositor or its designee may enter into
contracts on behalf of the Trust to reinvest the proceeds of the sale
of any Security sold pursuant to this section, Section 5.02 or
otherwise pursuant to this Indenture into any Security included in the
applicable index. Without limiting the generality of the foregoing, in
determining whether such reinvestment is practicable, the Depositor
may, but is not obligated to, specifically consider the ability of the
Trust to reinvest such proceeds into round lots of a Security.
Contracts for sale or purchase of Securities shall be made by the
Depositor on behalf of the Trust or by such agent as the Depositor
shall designate. The Depositor or its designee shall provide the
Trustee such information as the Trustee may require in order to settle
the transactions. The Trustee shall not be liable or responsible in
any way for depreciation or loss incurred by reason of any sale or
purchase made pursuant to any such direction or by reason of the
failure of the Depositor to give any such direction, and in the
absence of such direction the Trustee shall have no duty to sell or
purchase any Securities under this Section 3.07(c) and shall have no
responsibility for the composition of each Trust portfolio. The
Depositor shall not be liable for errors of judgment in directing or
failing to direct the Trustee pursuant to this Section 3.07(c). This
provision, however, shall not protect the Depositor against any
liability for which it would otherwise be subject, by reason of
willful misfeasance, bad faith or gross negligence in the performance
of its duties or by reason of its reckless disregard of its
obligations and duties hereunder.
The Depositor or its designated agent shall make such reviews
of each Trust portfolio as shall be necessary to maintain qualification
of a particular Trust as a regulated investment company and the
Depositor shall be authorized to rely conclusively upon such reviews in
directing sales pursuant to paragraph (3) of this section.
(22) Section 3.11 is hereby revised to read as follows:
SECTION 3.11. REORGANIZATION AND SIMILAR EVENTS. (a) In the
event that an offer by the issuer of any of the Securities or any other
party shall be made to issue new securities, or to exchange securities,
for Trust Securities, the Trustee shall reject such offer. However,
should any issuance, exchange or substitution be effected
notwithstanding such rejection or without an initial offer, any
securities, cash and/or property received in exchange shall be
deposited hereunder and shall be promptly sold, if securities or
property, by the Trustee, unless the Depositor advises the Trustee to
keep such securities or property. The Trustee also may accept a tender
offer for cash if the Supervisor determines that the sale or tender is
in the best interest of the Unitholders. The cash received in such
exchange and cash proceeds of any such sale or tender offer shall be
distributed to Unitholders on the next Income Distribution Date in the
manner set forth in Section 3.05 regarding distributions from the
Capital Account. This section shall apply, but its application shall
not be limited, to public tender offers, mergers, acquisitions,
reorganizations and recapitalizations. Unless the Depositor directs
that notice be otherwise provided, the Trustee shall include notice of
any Security so acquired in the annual statement provided to
Unitholders pursuant to Section 3.06. Except as provided in Article VI,
neither the Depositor nor the Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of
any such sale. Neither the Depositor nor the Trustee shall be liable to
any person for any action or failure to take action pursuant to the
terms of this Section 3.11 other than failure to notify the Depositor.
(b) Notwithstanding the foregoing, if a Trust has elected to
be treated as a "regulated investment company" as defined in the
Internal Revenue Code, in the event that an offer by the issuer of any
of the Securities or any other party shall be made to issue new
securities, or to exchange securities, for Trust Securities, the
Trustee shall reject such offer. However, should any issuance, exchange
or substitution be effected notwithstanding such rejection or without
an initial offer, any securities, cash and/or property received shall
be deposited hereunder and shall be promptly sold, if securities or
property, by the Trustee pursuant to the Depositor's direction, unless
the Depositor advises the Trustee to keep such securities or property;
PROVIDED, HOWEVER, if the Trust's portfolio is based upon an index, and
such securities are components of the applicable index, the Depositor
may advise the Trustee to keep such securities. The cash received in
such exchange and cash proceeds of any such sales shall, as the
Depositor or its designee shall direct, be (1) reinvested into any
Securities included in the applicable index, if the Trust's portfolio
is based upon an index, or (2) distributed to Unitholders on the next
Capital Account Distribution Date in the manner set forth in this
indenture regarding distributions from the Capital Account. Without
limiting the generality of the foregoing, in determining whether such
reinvestment is practicable, the Depositor may, but is not obligated
to, specifically consider the ability of a Trust to reinvest such
proceeds into round lots of a Security. Except as provided in Article
VI, the Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any such rejection or sale.
(23) Subsections (a) through (e) of Section 3.17 are hereby
restated to read as follows:
(a) The Replacement Securities shall be Equity Securities as
originally selected for deposit in that series of the Trust.
Notwithstanding the foregoing, if a Trust has elected to be treated as
a "regulated investment company," as defined in the Internal Revenue
Code and the Trust's portfolio is based upon an index, the Replacement
Securities shall be a component of the applicable index.
(b) The purchase of the Replacement Securities shall not
adversely affect the federal income tax status of the Trust.
(c) The purchase price of the Replacement Securities shall
not exceed the total amount of cash deposited, or the amount
available under the Letter of Credit deposited, by the Depositor at
the time of the deposit of the Failed Contract Security.
(d) The written instructions of the Depositor shall (i)
identify the Replacement Securities to be purchased, (ii) state that
the contract to purchase, if any, to be entered into by the Trustee is
satisfactory in form and substance and (iii) state that the foregoing
conditions of clauses (a) through (d) have been satisfied with respect
to the Replacement Securities.
(e) The Replacement Securities shall be purchased within 30
days after the deposit of the Failed Contract Security.
(f) Notwithstanding the foregoing clauses (c) and (d), if a
Trust has elected to be treated as a "regulated investment company,"
as defined in the Internal Revenue Code, the Depositor shall furnish a
notice to the Trustee in respect to the Replacement Security purchased
or to be purchased that shall (1) identify the Replacement Securities,
(2) state that the contract to purchase, if any, entered into by the
Depositor is satisfactory in form and substance and (3) state that the
foregoing conditions of clause (a) have been satisfied with respect to
the Replacement Securities.
(24) Article III is hereby amended by adding the following
Section 3.25:
SECTION 3.25. REGULATED INVESTMENT COMPANY ELECTION.
If so provided in the Prospectus for a Trust, such Trust elects to be
treated and to qualify as a "regulated investment company" as defined
in the Internal Revenue Code, and the Trustee is hereby directed to
make such elections, including any appropriate election to be taxed as
a corporation, as shall be necessary to effect such qualification.
(25) Section 5.02 is hereby amended by adding the following
after the last sentence:
If a Trust has elected to be taxed as a "regulated investment
company" and such Trust's portfolio is based upon an index, and if
Securities in the Trust are sold for the payment of the Redemption
Price and there are excess proceeds remaining after meeting redemption
requests, the Depositor or its designee may, but is not obligated to,
direct the investment of such excess proceeds into any Securities
included in the applicable index.
(26) Section 9.02 is hereby amended by additng the following
after the last sentence:
If a Trust has elected to be treated as a "regulated
investment company" as defined in the Internal Revenue Code, and if
the Trust involved seeks to consist of securities included in a
securities index, then notwithstanding anything to the contrary
herein, if at any time the index shall no longer be compiled,
maintained or made available, the Depositor may (i) direct that the
Trust created hereby continue to be operated hereunder utilizing the
components of the index as existed on the last date on which the index
components were available to a Trust or (ii) direct the Trustee to
terminate this Indenture and the Trust created hereby and liquidate
the Trust in such manner as the Depositor shall direct.
(27) Section 9.01 is hereby amended by adding the following as
subsection (d):
(d) If a Trust has elected to be treated as a "regulated
investment company" as defined in the Internal Revenue Code and
notwithstanding Section 9.01(a), this Indenture may be amended from
time to time by the Depositor and the Trustee without the consent of
any of the Unitholders (1) to cure any ambiguity or to correct or
supplement any provisions contained herein which may be defective or
inconsistent with any other provision contained herein; (2) to change
any provision hereof as may be required by the Securities and Exchange
Commission or any successor governmental agency exercising similar
authority; (3) to make such amendments as may be necessary for each
Trust to continue to qualify as a regulated investment company for
federal income tax purposes; or (4) to make such other provisions in
regard to matters or questions arising hereunder as shall not
adversely affect the interest of the Unitholders (as determined in
good faith by the Depositor and the Trustee). This Indenture may also
be amended from time to time by the Depositor and the Trustee (or the
performance of any of the provisions of this Indenture may be waived)
with the consent of holders of Units representing 66-2/3% of the Units
at the time outstanding under the Trust Indenture of the individual
Trust or Trusts affected for the purpose of adding any provisions of
this Indenture or of materially modifying in any manner the rights of
the holders of Units of such Trust or Trusts; PROVIDED, HOWEVER, that
in no event may any amendment be made which would (1) alter the rights
to the Unitholders as against each other, (2) provide the Trustee with
the power to engage in business or investment activities other than as
specifically provided in this Indenture or (3) adversely affect the
characterization of a Trust as a regulated investment company for
federal income tax purposes; PROVIDED, FURTHER, that the consent of
100% of the Unitholders of any individual Trust is required to amend
this Indenture (1) to reduce the aforesaid percentage of Units the
holders of which are required to consent to certain amendments and (2)
to reduce the interest in such Trust represented by any Units of such
Trust.
Promptly after the execution of any amendment requiring the
consent of the Unitholders or any of any other amendment if directed
by the Depositor, the Trustee shall furnish written notification of
the substance of such amendment to each Unitholder then of record
affected thereby.
It shall not be necessary for the consent of Unitholders under
this Section 9.01 or under Section 9.02 to approve the particular form
of any proposed amendment, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof
by Unitholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
(28) Section 3.01 is hereby amended by 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, if earlier, the
Trustee shall withdraw from the Account or Accounts specified in the
Prospectus or, if no Account is therein specified, from the Capital
Account as further set forth in Section 3.03, 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 the primary offering period. If the cash balance of
the Capital 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. Securities sold or distributed to
the Depositor to reimburse the Depositor pursuant to this Section shall
be sold or distributed by the Trustee to the extent practicable, in the
percentage ratio then existing (unless the Trust elects to be treated
as a "regulated investment company" as defined in the United States
Internal Revenue Code (the "INTERNAL REVENUE CODE"), in which case
sales or distributions by the Trustee shall be made in accordance with
the instructions of the Depositor or its designees). The reimbursement
provided for in this Section shall be for the account of the
Unitholders of record at the conclusion of the primary offering period.
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 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, 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, 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, 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.
(29) 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, 000 Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other address as shall be specified by the Depositor
to the other parties hereto in writing.
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
--------------------------
Executive Vice President
and General Counsel
THE BANK OF NEW YORK, TRUSTEE
By /s/ Xxxxxx Xxxxxxxx
-------------------------
Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
CLAYMORE SECURITIES DEFINED PORTFOLIOS, SERIES 147
(Note: Incorporated herein and made a part hereof are the "Trust
Portfolio(s)" as set forth in the Prospectus.)
