Exhibit 1.1
CLAYMORE SECURITIES DEFINED PORTFOLIOS,
SERIES 144
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated as of September 3, 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 February 6, 2002" (herein called the "Standard
Terms and Conditions of Trust"), and such provisions as are set forth in full
and such provisions as are incorporated by reference constitute a single
instrument. All references herein to Articles and Sections are to Articles and
Sections of the Standard Terms and Conditions of Trust.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
PART I.
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II hereof, all the provisions contained
in the Standard Terms and Conditions of Trust are herein incorporated by
reference in their entirety and shall be deemed to be a part of this instrument
as fully and to the same extent as though said provisions had been set forth in
this instrument.
PART II.
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
(1) The securities listed in the Schedule hereto have been deposited
in the Trust under this Reference Trust Agreement as indicated on the
attached Schedule A.
(2) For the purposes of the definition of the term "Unit" in
Article I, it is hereby specified that the fractional undivided interest in
and ownership of a Trust is the amount described in Amendment No. 1 to the
Trust's Registration Statement (Registration No.
333-103421) as filed with the Securities and Exchange Commission today. The
fractional undivided interest may (a) increase by the number of any
additional Units issued pursuant to Section 2.05, (b) increase or decrease
in connection with an adjustment to the number of Units pursuant to Section
2.05, or (c) decrease by the number of Units redeemed pursuant to Section
5.02.
(3) The term "Record Date" shall mean the first day of each month for
principal distributions and the dates set forth in the Prospectus for
interest distributions.
(4) The term "Distribution Date" shall mean the fifteenth day of each
month for principal distributions and the dates set forth in the Prospectus
for interest distributions.
(5) The term "Initial Date of Deposit" shall mean the date of this
Reference Trust Agreement as set forth above.
(6) The number of Units of the Trust referred to in Section 2.03 shall
be equal to the "Number of Units" in the Statement of Financial Condition
in the Prospectus.
(7) For the purposes of Section 6.01(g)(i), the liquidation amount
shall be 40% of the total value of all Securities deposited in the Trust at
the end of the Trust's initial offering period.
(8) 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.
(9) Article I is hereby amended to add the following definitions in
appropriate order:
"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
TEN ENT as tenants by the entireties (Cust) (Minor)
JT TEN as joint tenants with right of survivor- Under Uniform Gifts to Minors Act
ship 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 BE PROVIDED
___________________________________________________________________________
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
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.
"PERCENTAGE RATIO" shall mean, with respect to any Trust which will
issue additional Units pursuant to Section 2.03, the original percentage
relationships established on the Initial Date of Deposit between the
principal amounts of Bonds or specified interest rates and ranges of
maturities as reflected in the portfolio of such Trust set forth in the
Prospectus on such Initial Date of Deposit.
(10) The following definitions are is hereby amended as follows:
"BONDS" shall mean bonds, notes, other fixed income securities, other
evidences of indebtedness, certificates of participation, mortgage-backed
securities or other obligations issued or guaranteed by the full faith and
credit of the United States or by any agency or instrumentality thereof,
including delivery statements relating to "when-issued" and/or "regular
way" contracts, if any, for the purchase of certain securities and
certified or bank check or checks or letter of credit or letters of credit
sufficient in amount or availability required for such purchase, deposited
in irrevocable trust and listed under the "Trust Portfolio" in the
prospectus, any additional obligations deposited pursuant to Section 2.01
and any obligations received in exchange, substitution or replacement for
such obligations pursuant to Section 3.17 hereof, as may from time to time
continue to be held as a part of the Trusts.
"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.
(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, documentation evidencing the ownership of the number of Units
specified or, if requested by the Depositor, the ownership by DTC of all
such Units and will cause such Units to be credited at DTC to the account
of the Depositor or, pursuant to the Depositor's direction and as hereafter
provided, the account of the issuer of the Letter of Credit referred to in
Section 2.01. The Trustee hereby agrees that on the date of any
Supplemental Indenture it shall acknowledge that the additional Securities
identified therein have been deposited with it by recording on its books
the ownership, by the Depositor or such other person or aggregate number of
Units to be issued in respect of such additional Securities so deposited.
Upon the sale of Units to a purchaser, the Units will be evidenced by
a Book Entry Position unless, 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) The last two sentences of Section 2.05(a)(3) are hereby
deleted and replaced with the following:
Each deposit made pursuant to this Section 2.05 shall be made, as
nearly as practicable, in accordance with the Percentage Ratios for such
Bonds. The Depositor in each case shall ensure that each deposit of
additional Bonds pursuant to this Section shall have the same ratio of
Bonds (based on principal amount) as existed on the Initial Date of Deposit
for each Trust. Any brokerage fees related to the purchase of Bonds
deposited in the Trust after the Initial Date of Deposit shall be an
expense of such Trust.
(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) Sections 3.08(a)(x), 3.08(a)(xi) and 3.01(a)(xii) are hereby
deleted and replaced 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 $0.001 per Unit; or
(xi) 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 Fund; and
(xii) the Depositor or its designee determines that such sale
is appropriate.
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 (xi) of
this section.
(16) Section 3.15 is hereby deleted and replaced in its entirety
with the following:
SECTION 3.15. REGULATED INVESTMENT COMPANY ELECTION. If so provided
in the Prospectus for a Trust Fund, such Trust Fund 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.
(17) Section 3.17 is hereby deleted and replaced with the
following:
Section 3.17. Limited Replacement of Bonds. (a) If any contract in
respect of Contract Bonds other than a contract to purchase a New Bond (as
defined below), including those purchased on a when, as and if issued
basis, shall have failed due to any occurrence, act or event beyond the
control of the Depositor or the Trustee (such failed Contract Bonds being
herein called the "Special Bonds"), the Depositor shall notify the Trustee
(such notice being herein called the "Failed Contract Notice") of its
inability to deliver the failed Special Bond to the Trustee after it is
notified in writing that the Special Bond will not be delivered by the
seller thereof to the Depositor. Prior to, or simultaneously with, giving
the Trustee the Failed Contract Notice, or within a maximum of twenty days
after giving such Notice (such twenty day period being herein called the
"Purchase Period"), the Depositor shall, if possible, purchase or enter
into the contract, if any, to purchase an obligation to be held as a Bond
hereunder (herein called the "New Bond") as part of the Fund in replacement
of the failed Special Bond, subject to the satisfaction of all of the
following conditions in the case of each purchase or contract to purchase:
(1) The New Bonds (i) shall have a fixed maturity date (whether or not
entitled to the benefits of any sinking, redemption, purchase of similar
fund) substantially similar to, but not exceeding the date of maturity of
the Special Bonds they replace, (ii) must be purchased at a price that
results in a current return as of the Date of Deposit at least equal to
that of the Special Bonds they replace, (iii) must be purchased at a price
that results in a yield to maturity as of the Initial Date of Deposit of
the Trust at least equal to that of the Special Bonds they replace, (iv)
shall be payable as to principal and interest in United States currency,
(v) shall not be "when, as and if issued" Bonds, (vi) shall be securities
on which the payment of principal and interest is backed by the full faith
and credit of the United States or by any agency or instrumentality
thereof, (vii) in the case of Trusts containing Bonds issued by the
Government National Mortgage Association, shall be taxable mortgage-backed
securities of the modified pass-through type which maintain as far as
practicable the original percentage relationship between the principal
amounts of Bonds of specified interest rates and ranges of maturity in the
Trust, (viii) shall not cause the Units of the Trust to cease to be rated
AAA by Standard & Poor's if the Units were so rated on the Initial Date of
Deposit and (ix) shall be issued after July 18, 1984.
(2) The purchase price of the New Bonds (exclusive of accrued
interest) shall not exceed the principal attributable to the Special Bonds.
(3) The Depositor shall furnish a notice to the Trustee (which may be
part of the Failed Contract Notice) in respect of the New Bonds purchased
or to be purchased that shall (i) identify the New Bonds, (ii) state that
the contract to purchase, if any, entered into by the Depositor is
satisfactory in form and substance, and (iii) state that the foregoing
conditions of clauses (a) and (b) have been satisfied with respect to the
New Bonds.
Upon satisfaction of the foregoing conditions with respect to any New
Bond, the Depositor shall pay the purchase price for the New Bond from its
own resources or, if the Trustee has credited any moneys and/or letters of
credit attributable to the failed Special Bond to the Principal Account,
the Trustee shall pay the purchase price of the New Bond upon directions
from the Depositor from the moneys and/or letters of credit so credited to
the Principal Account. If the Depositor has paid the purchase price, and,
in addition, the Trustee has credited moneys of the Depositor to the
Principal Account, the Trustee shall forthwith return to the Depositor the
portion of such moneys that is not properly distributable to Unitholders
pursuant to Section 3.06.
Whenever a New Bond is acquired by the Depositor pursuant to the provisions
of this Section 3.17, the Trustee shall, within five days thereafter, mail to
all Unitholders notices of such acquisition, including an identification of the
failed Special Bonds and the New Bonds acquired.
The purchase price of the New Bonds shall be paid out of the principal
attributable to the failed Special Bonds. The Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any
purchase made pursuant to any such directions and in the absence of such
directions the Trustee shall have no duty to purchase any New Bonds under this
Indenture. The Depositor shall not be liable for any failure to instruct the
Trustee to purchase any New Bonds or for errors of judgment in respect of this
Section 3.17; provided, however, that this provision shall not protect the
Depositor against any liability to 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.
(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, if applicable, 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) Subsections (a) and (b) of Section 9.01 are hereby deleted and
replaced with the following:
Section 9.01. AMENDMENTS. (a) This Indenture may be amended from time to
time by the Depositor and Trustee hereto or their respective successors, without
the consent of any of the Unitholders (i) to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision contained herein, (ii) to change any provision required
by the Securities and Exchange Commission or any successor governmental agency,
(iii) to make such amendments as may be necessary for the Trust to continue to
qualify as a regulated investment company for federal income tax purposes or
(iv) to make such other provision regarding matters or questions arising
hereunder as shall not adversely affect the interests of the Unitholders;
provided, however, that in no event may any amendment be made which would
adversely affect the status of a Trust for federal income tax purposes. This
Indenture may not be amended, however, without the consent of all Unitholders
then outstanding, so as (1) to permit, except in accordance with the terms and
conditions hereof, the acquisition hereunder of any Bonds other than those
specified under "The Trust Portfolio" in the Prospectus or (2) to reduce the
aforesaid percentage of units the holders of which are required to consent to
certain of such amendments. This Indenture may not be amended so as to reduce
the interest in a Trust represented by Units without the consent of all affected
Unitholders.
(b) Except for the amendments, changes or modification as provided in
Section 9.01(a) hereof, neither the parties hereto nor their respective
successors shall consent to any other amendment, change, modification or waiver
of a provision of this Indenture without the giving of notice and the obtaining
of the approval or consent of Unitholders representing at least 66-2/3% of the
Units then outstanding of the affected Trust. Nothing contained in this Section
9.01(b) shall permit, or be construed as permitting, a reduction of the
aggregate percentage of Units the holders of which are required to consent to
any amendment, change or modification of this Indenture without the consent of
the Unitholders of all of the Units then outstanding of the affected Trust and
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 status of the Trust as a regulated
investment company for federal income tax purposes.
(23) 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.
(24) 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.
(25) 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.
(26) 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.
(27) 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 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 3.06, 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
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 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.
(28) 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 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.
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 from 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 therefor upon which
the Trustee may rely as the Depositor's certification that the amount
claimed complies with the provisions of this paragraph.
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: Chief Operations Officer and
General Counsel
THE BANK OF NEW YORK, Trustee
By /s/ Xxxxxx Xxxxxxxx
Title: Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
CLAYMORE SECURITIES DEFINED PORTFOLIOS, SERIES 144
(Note: Incorporated herein and made a part hereof is the "Trust Portfolio" as
set forth in the Prospectus.)
