Exhibit 1.1
CLAYMORE SECURITIES DEFINED PORTFOLIOS,
SERIES 133
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated as of August 22, 2002, between
Claymore Securities, Inc., as Depositor, and The Bank of New York, as Trustee,
sets forth certain provisions in full and incorporates other provisions by
reference to the document entitled "Standard Terms and Conditions of Trust For
Series Formed on or Subsequent to 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 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.
333-98345) as filed with the Securities and Exchange Commission
S133ta
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) The Introduction to Standard Terms and Conditions of
Trust is hereby amended as follows:
These Standard Terms and Conditions of Trust, effective
December 18, 2001, shall be applicable to certain Claymore Securities
Defined Portfolios established after the date of effectiveness hereof
containing Securities, as provided in this paragraph. For all Series
established after the date of effectiveness hereof to which these
Standard Terms and Conditions of Trust effective December 18, 2001, are
to be applicable, the Depositor, Evaluator and Supervisor and the
Trustee shall execute a Reference Trust Agreement incorporating by
reference these Standard Terms and Conditions of Trust effective
December 18, 2001, and designating any exclusions from or additions or
exceptions to such incorporation by reference for the purposes of that
Series or variation of the terms hereof for the purposes of that
Series.
(8) Article I of the Standard Terms and Conditions of
Trust is hereby amended to add the following definitions:
"ZERO COUPON OBLIGATIONS" Any zero coupon bonds, i.e.,
obligations which accrue but do not pay income currently, which are
sold at a discount from principal value and represent an obligation to
receive the principal value thereof at a future date, issued by the
U.S. government, which are deposited in a Trust. Only Zero Coupon
Obligations which if certificated, are or may be registered and held by
the Trustee in book entry form on the registration books of a bank or
clearing house which it is authorized to use as custodian of assets of
a unit investment trust pursuant to the Investment Company Act of 1940
shall be eligible for deposit in any Trust.
"ZERO COUPON OBLIGATION MATURITY DATE" The Treasury
Obligations Maturity Date shall be as set forth in the Prospectus under
"The Trust Portfolio."
(9) The definition of "SECURITIES" is amended to read as
follows:
(30) "SECURITIES" shall mean (a) Equity Securities and
Zero Coupon Obligations deposited in a Trust, which Securities are
listed in the various Schedules to the Reference Trust Agreement or
are deposited in the Trust pursuant to Section 2.01 hereof, (b)
Replacement Securities acquired pursuant to Section 3.17 hereof, as
may from time to time to be construed to be held as part of the Trust
and (c) if applicable, distributions of the same securities.
(10) 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 August 22, 2002, in the event
that the aggregate value of Securities in the Trust has increased since
the evaluation on August 21, 2002, the Trustee shall issue such number
of additional Units to the Unitholder of outstanding Units as of the
close of business on August 22, 2002, that the price per Unit computed
as of the Evaluation Time on August 12, 2002, plus the maximum
applicable sales charge shall equal approximately the initial public
offering price set forth in the Prospectus, 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 August 21, 2002, 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 22, 2002, plus the maximum
applicable sales charge shall equal approximately the initial public
offering price set forth in the Prospectus, per Unit (based on the
number of Units outstanding as of said Evaluation Time, reflecting
cancellation of Units pursuant to this sentence)."
(11) 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.
(12) Section 2.05(a) is amended by adding the following
subsection (8):
(8) Notwithstanding anything to the contrary in this
subsection (8), the Trustee shall not accept any deposit pursuant to
this Section 2.05(a) unless the Depositor and Trustee have each
determined that the maturity value of the Zero Coupon Obligations
included in the deposit, divided by the number of Units created by
reason of the deposit, shall equal $10.00.
(13) Article III of the Standard Terms and Conditions of
Trust is hereby amended to add the following section:
SECTION 3.23. SALE OF ZERO COUPON OBLIGATIONS. (a)
Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, Zero Coupon Obligations held by the Trust may not
be sold unless the Depositor and the Trustee have determined that the
maturity value of the Zero Coupon Obligations remaining after such
proposed sale, divided by the number of Units outstanding after any
tendered Units are redeemed, shall equal or exceed $10.00. However,
Zero Coupon Obligations may be sold without limitation in the event of
the Trust's termination.
(b) In the event that (i) Zero Coupon Obligations may
not be sold to fund a redemption of Units pursuant to paragraph (a)
of this section 3.23, and (ii) no other Trust assets are available
for liquidation to fund such redemption, the Depositor agrees that it
will purchase such Units in accordance with Section 5.02, and will
tender such Units for redemption only at such time and in such manner
that the Zero Coupon Obligations remaining after the sale required to
fund such redemption will have a maturity value of not less than
$10.00 per Unit. However, if the Depositor fails to meet this
obligation, the Trustee will advance to the Trust such amounts as may
be necessary to pay the Redemption Value of the tendered Units. The
Trustee shall be reimbursed the amount of any such advance from the
Trust as soon as Zero Coupon Obligations may be sold in such amount
as will not reduce the maturity value of Zero Coupon Obligations
still held in the Trust below the amount required to distribute
$10.00 per Unit from the proceeds of the sale or maturity of the Zero
Coupon Obligations upon the termination of the Trust on the Mandatory
Termination Date. The Trustee shall be deemed to be the beneficial
owner of the Zero Coupon Obligations held in the Trust to the extent
of all amounts advanced by it pursuant to this Section 3.23, and such
advances shall be secured by a lien on the Trust prior to the
interest of Unitholders, provided, however, that the Trustee's
beneficial interest in the Trust and the lien securing such interest
shall not at any time exceed such amount as would reduce the amount
distributable from the Trust upon maturity or sale of Zero Coupon
Obligations upon the termination of the Trust on the Mandatory
Termination Date to less than $10.00 per Unit. Nothing in this
paragraph shall be deemed to restrict the Trustee's authority to
terminate the Trust pursuant to Section 6.01(g) in the event the
Depositor fails or ceases to act as described in such section.
(c) In the event that (i) Zero Coupon Obligations may
not be sold to pay Trust expenses pursuant to paragraph (a) of this
Section 3.23; and (ii) no other Trust assets are available for
liquidation to pay such expenses, the Depositor shall be liable for
such expenses required to be paid pursuant to the Standard Terms and
Conditions of Trust and this Trust Agreement or otherwise required
for the administration of the Trust.
(14) The first sentence of Section 3.17(a) is hereby
replaced with the following:
(a) The Replacement Securities shall be Zero Coupon
Obligations or Equity Securities as originally selected for deposit in
that series of the Trust. Replacement Securities which are Zero Coupon
Obligations must have the same maturity value as the
Failed Contract Securities and, as close as is reasonably practical,
the same maturity date, which must be on or prior to the Mandatory
Termination Date.
(15) Section 4.01(a) is amended by adding the following at
the end of the first paragraph:
For Zero Coupon Obligations, an Evaluation as described above shall be
based (a) on the basis of the current bid price on the over-the-counter
market (unless the Evaluator deems such price inappropriate as a basis
for evaluation), (b) on the basis of current bid prices for the Zero
Coupon Obligations as obtained from investment dealers or brokers who
customarily deal in securities comparable to those held by the Trust,
(c) if bid prices are not available for the Zero Coupon Obligations, on
the basis of bid prices for comparable securities, (d) by determining
the valuation of the Zero Coupon Obligations on the bid side of the
market by appraisal, or (e) by any combination of the above. However,
if Zero Coupon Obligations are sold on such day, then such Evaluation
for the Zero Coupon Obligations shall be the weighted average of the
execution prices for all Zero Coupon Obligations sold on such day.
Notwithstanding anything to the contrary contained in this
Section 4.01(a), except for Trust Fund Evaluations required by Section
5.02 in determining Redemption Price, during the initial offering
period for Zero Coupon Obligations, the evaluations of the Securities
shall generally be made in the manner described in this section 4.01(a)
based on the closing offer prices of the Securities rather than the
closing bid prices.
(16) 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 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."
(17) 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 during the Trust's initial offering period.
(18) 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.
(19) The phrases "supervisory services," "supervisory
portfolio services" and "portfolio supervisory services" in Section
3.18 are hereby replaced with the phrase "portfolio supervisory
services and bookkeeping and administrative expenses."
(20) 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 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.
(21) 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 the 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.
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/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Executive Vice President
THE BANK OF NEW YORK, TRUSTEE
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
CLAYMORE SECURITIES DEFINED PORTFOLIOS, SERIES 133
(Note: Incorporated herein and made a part hereof is the "Trust Portfolio(s)"
as set forth in the Prospectus.)