Exhibit 1.1
CLAYMORE SECURITIES DEFINED PORTFOLIOS,
SERIES 323
PERONI GROWTH PORTFOLIO, AUTUMN 2006 SERIES
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated as of September 13, 2006, 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 securities listed in the Schedule 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. 333-136956) 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) The definition of "Supplemental Indenture" is hereby deleted in its
entirety.
(8) The definition of "Addendum to the Reference Trust Agreement" is hereby
deleted in its entirety.
(9) The term "Additional Securities" shall mean such Securities which have
been deposited pursuant to Section 2.05 to effect an increase over the number of
Units initially specified in the Reference Trust Agreement.
(10) 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.
(11) 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."
(12) 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.
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.
(13) 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."
(14) 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.
(15) 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.
(16) 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.
(17) Sections 2.05(a) and 2.05(b) are hereby amended and replaced in their
entirety with the following:
Section 2.05. Deposit of Additional Securities. (a) Subject to the
requirements set forth below in this Section, the Depositor may, on any Business
Day (the "Trade Date"), subscribe for Additional Units as follows:
(1) Prior to the Evaluation Time defined in Section 5.01 on
the Trade Date, the Depositor shall provide notice (the
"Subscription Notice") to the Trustee of the Depositor's
intention to subscribe for Additional Units. The Subscription
Notice shall identify the Additional Securities to be acquired
(unless such Additional Securities are a precise replication
of the then existing portfolio) and shall either (i) specify
the quantity of Additional Securities to be deposited by the
Depositor on the settlement date for such subscription or (ii)
instruct the Trustee to purchase Additional Securities with an
aggregate cost as specified in the Subscription Notice.
(2) Promptly following the Evaluation Time on such Business
Day, the Depositor shall verify with the Trustee, the number
of Additional Units to be created.
(3) Not later than the time on the settlement date for such
subscription when the Trustee is to deliver the Additional
Units created thereby (which time shall not be later than the
time by which the Trustee is required to settle any contracts
for the purchase of Additional Securities entered into by the
Trustee pursuant to the instruction of the Depositor referred
to in subparagraph (1) above), the Depositor shall deposit
with the Trustee (i) any Additional Securities specified in
the Subscription Notice (or contracts to purchase such
Additional Securities together with cash or a letter of credit
in the amount necessary to settle such contracts) or (ii) cash
or a letter of credit in the amount equal to the aggregate
cost of the Additional Securities to be purchased by the
Trustee, as specified in the Subscription Notice, together
with, in each case, Cash defined below. "Cash" means, as to
the Capital Account, cash or other property (other than
Securities) on hand in the Capital Account or receivable and
to be credited to the Capital Account as of the Evaluation
Time on the Business Day preceding the Trade Date (other than
amounts to be distributed solely to persons other than persons
receiving the distribution from the Capital Account as holders
of Additional Units created by the deposit), and, as to the
Income Account, cash or other property (other than Securities)
received by the Trust as of the Evaluation Time on the
Business Day preceding the Trade Date or receivable by the
Trust in respect of dividends or other distributions declared
but not received as of the Evaluation Time on the Business Day
preceding the Trade Date, reduced by the amount of any cash or
other property received or receivable on any Security
allocable (in accordance with the Trustee's calculation of the
monthly distribution from the Income Account pursuant to
Section 3.05) to a distribution made or to be made in respect
of a Record Date occurring prior to the Trade Date. Each
deposit made pursuant to this Section 2.05 shall replicate, to
the extent practicable, the portfolio immediately prior to
such deposit.
(4) On the settlement date for a subscription, the Trustee
shall, in exchange for the Securities and cash or Letter of
Credit described above, issue and deliver to or on the order
of the Depositor the number of Units verified by the Depositor
with the Trustee. No Unit to be issued pursuant to this
paragraph shall be issued or delivered unless and until
Securities, cash or a Letter of Credit is received in exchange
therefor and no person shall have any claim to any Unit not so
issued and delivered or any interest in the Trust in respect
thereof.
(5) Any Additional Securities shall be held, administered and
applied by the Trustee in the same manner as herein provided
for the Securities.
(6) The acceptance of Additional Units by the Depositor in
accordance with the provisions of paragraph (a) of this
Section shall be deemed a certification by the Depositor that
the deposit or purchase of Additional Securities associated
therewith complies with the conditions of this Section 2.05.
(7) Notwithstanding the preceding, in the event that the
Depositor's Subscription Notice shall instruct the Trustee to
purchase Additional Securities in an amount which, when added
to the purchase amount of all other unsettled contracts
entered into by the Trustee, exceeds 25% of the value of the
Securities then held (taking into account the value of
contracts to purchase Securities only to the extent that there
has been deposited with the Trustee cash or an irrevocable
letter of credit in an amount sufficient to settle their
purchase), the Depositors shall deposit with the Trustee
concurrently with the Subscription Notice cash or a letter of
credit in an amount such that, when added to 25% of the value
of the Securities then held (determined as above) the
aggregate value shall be not less than the purchase amount of
the securities to be purchased pursuant to such Subscription
Notice.
(b) 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.
(18) Section 4.01(b) is replaced in its entirety by the following:
(b) During the initial offering period such Evaluation shall be made
in the following manner: if the Securities are listed on a national
securities exchange or foreign securities exchange, such Evaluation shall
generally be based on the last available sale price on or immediately prior
to the Evaluation Time on the exchange which is the principal market
therefor, which shall be deemed to be the New York Stock Exchange if the
Securities are listed thereon (unless the Evaluator deems such price
inappropriate as a basis for evaluation) or, if there is no such available
sale price on such exchange, at the last available offer prices of the
Securities. Securities not listed on the New York Stock Exchange but
principally traded on the Nasdaq National Market System will be valued at
Nasdaq's official close price. If the Securities are not so listed or, if
so listed, the principal market therefor is other than on such exchange or
there is no such available sale price on such exchange, such Evaluation
shall generally be based on the following methods or any combination
thereof whichever the Evaluator deems appropriate: (i) on the basis of the
current offer price for comparable securities (unless the Evaluator deems
such price inappropriate as a basis for evaluation), (ii) by determining
the valuation of the Securities on the offer side of the market by
appraisal or (iii) by any combination of the above. If the Trust holds
Securities denominated in a currency other than U.S. dollars, the
Evaluation of such Security shall be converted to U.S. dollars based on
current offering side exchange rates (unless the Evaluator deems such
prices inappropriate as a basis for valuation). The Evaluator shall add to
the Evaluation of each Security which is traded principally on a foreign
securities exchange the amount of any commissions and relevant taxes
associated with the acquisition of the Security. As used herein, the
closing sale price is deemed to mean the most recent closing sale price on
the relevant securities exchange immediately prior to the Evaluation Time.
For each Evaluation, the Evaluator shall also confirm and furnish to the
Trustee and the Depositor, on the basis of the information furnished to the
Evaluator by the Trustee as to the value of all Trust assets other than
Securities, the calculation of the Trust Fund Evaluation to be computed
pursuant to Section 5.01.
(19) 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.
(20) Section 9.05 is hereby revised to read as follows:
Section 9.05. Written Notice. Any notice, demand, direction or
instruction to be given to the Depositor, Evaluator or Supervisor hereunder
shall be in writing and shall be duly given if mailed or delivered to the
Depositor, 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, or at such
other address as shall be specified by the Depositor to the other parties
hereto in writing.
(21) The second paragraph of Section 6.02 is replaced in its entirety as
follows:
An audit of the accounts of each Trust shall not be conducted unless
the Depositor determines that such an audit is required. In the event that
the Depositor determines that an audit is required, the accounts of each
Trust shall be audited not less than annually by independent public
accountants designated from time to time by the Depositor and reports of
such accountants shall be furnished by the Trustee, upon request, to
Unitholders. The Trustee, however, in connection with any such audits shall
not be obligated to use Trust assets to pay for such audits in excess of
the amounts, if any, indicated in the Prospectus relating to such Trust.
The Trustee shall maintain and provide, upon the request of a Unitholder or
the Depositor, the Unitholders' or the Unitholder's designated
representative with the cost basis of the Securities represented by the
Unitholder's Units.
(22) The first paragraph of Section 6.04 is replaced in its entirety as
follows:
Section 6.04. Compensation. Subject to the provisions of Section 3.14
hereof, the Trustee shall receive at the times set forth in Section 3.05,
as compensation for performing ordinary normal recurring services under
this Indenture, an amount calculated at the annual compensation rate stated
in the Prospectus. The Trustee shall charge a pro rated portion of its
annual fee at the times specified in Section 3.05, which pro rated portion
shall be calculated on the basis of the largest number of Units in such
Trust at any time during the primary offering period. After the primary
offering period has terminated, the fee shall accrue daily and be based on
the number of Units outstanding on the first business day of each calendar
year in which the fee is calculated or the number of Units outstanding at
the end of the primary offering period, as appropriate. The Trustee may
from time to time adjust its compensation as set forth above, provided that
total adjustment upward does not, at the time of such adjustment, exceed
the percentage of the total increase, after the date hereof, in consumer
prices for services as measured by the United States Department of Labor
Consumer Price Index entitled "All Services Less Rent," or, if such index
shall cease to be published, then as measured by the available index most
nearly comparable to such index. The consent or concurrence of any
Unitholder hereunder shall not be required for any such adjustment or
increase, however, the consent of the Depositor shall be required. Such
compensation shall be charged by the Trustee against the Income and Capital
Accounts of each Trust; provided, however, that such compensation shall be
deemed to provide only for the usual, normal and proper functions
undertaken as Trustee pursuant to this Indenture.
(23) Section 2.03 is hereby amended and replaced in its entirety with the
following:
Section 2.03. Issuance of Units. By executing the Reference Trust
Agreement and receipt for deposited Securities, the Trustee will thereby
acknowledge receipt of the deposit of the Securities listed in the
Schedules to the Reference Trust Agreement and referred to in Section 2.01
hereof, and simultaneously with the receipt of said deposit, has recorded
on its books the ownership, by the Depositor or such other person or
persons as may be indicated by the Depositor, of the aggregate number of
Units specified in the Reference Trust Agreement and has delivered, or on
the order of the Depositor will deliver, in exchange for such Securities,
cash or a Letter of Credit, documentation evidencing the ownership of the
number of Units specified or, if requested by the Depositor, the ownership
by DTC of all such Units and will cause such Units to be credited at DTC to
the account of the Depositor or, pursuant to the Depositor's direction and
as hereafter provided, the account of the issuer of the Letter of Credit
referred to in Section 2.01. The number of Units in a Trust may be
increased through a split of the Units or decreased through a reverse split
thereof, as directed by the Depositor, on any day on which the Depositor is
the only Unitholder of such Trust, which revised number of Units shall be
recorded by the Trustee on its books. Effective as of the Evaluation Time
on September 13, 2006, in the event that the aggregate value of Securities
in the Trust has increased since the evaluation on September 12, 2006, the
Trustee shall issue such number of additional Units to the Unitholder of
outstanding Units as of the close of business on September 12, 2006, that
the price per Unit computed as of the Evaluation Time on September 13,
2006, 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 September 12, 2006, 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 September 13, 2006,
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). The Trustee
hereby agrees that on the date of any deposit of additional Securities
pursuant to Section 2.05 it shall acknowledge that the additional
Securities identified therein have been deposited with it by recording on
its books the ownership, by the Depositor or such other person or persons
as may be indicated by the Depositor, of the aggregate number of Units to
be issued in respect of such additional Securities so deposited.
(24) Section 2.01 is hereby amended and replaced in its entirety with the
following:
Section 2.01. Deposit of Securities. The Depositor, on the date of the
Reference Trust Agreement, has deposited with the Trustee in trust the
Securities and contracts (or cash or a Letter of Credit in the amount
necessary to settle any contracts for the purchase of Securities entered
into by the Trustee pursuant to the instructions of the Depositor) for the
purchase of Contract Securities listed in the Schedules to the Reference
Trust Agreement in bearer form or duly endorsed in blank or accompanied by
all necessary instruments of assignment and transfer in proper form or
Contract Securities relating to such Securities to be held, managed and
applied by the Trustee as herein provided. The Depositor shall deliver the
Securities listed on said Schedules which were not actually delivered
concurrently with the execution and delivery of the Reference Trust
Agreement and which were represented by Contract Securities to the Trustee
within 10 calendar days after said execution and delivery (the "Delivery
Period"). In the event that the purchase of Contract Securities pursuant to
any contract shall not be consummated in accordance with said contract or
if the Securities represented by Contract Securities are not delivered to a
Trust in accordance with this Section 2.01 and the moneys, or, if
applicable, the moneys drawn on the Letter of Credit, deposited by the
Depositor are not utilized for Section 3.17 purchases of Replacement
Securities, such funds, to the extent of the purchase price of Failed
Contract Securities for which no Replacement Security were acquired
pursuant to Section 3.17, plus all amounts described in the next succeeding
sentence, shall be credited to the Capital Account and distributed pursuant
to Section 3.05 to Unitholders of record as of the Income Account Record
Date next following the failure of consummation of such purchase. The
Depositor shall cause to be refunded to each Unitholder his pro rata
portion of the sales charge levied on the sale of Units to such Unitholder
attributable to such Failed Contract Security. Any amounts remaining from
moneys drawn on the Letter of Credit which are not used to purchase
Replacement Securities or are not used to provide refunds to Unitholders
shall be paid to the Depositor. The Trustee is hereby irrevocably
authorized to effect registration or transfer of the Securities in fully
registered form to the name of the Trustee or to the name of its nominee or
to hold the Securities in a clearing agency registered with the Securities
and Exchange Commission or in a book entry system operated by the Federal
Reserve Board.
(25) The first two sentences in the first paragraph of Section 3.11 are
hereby deleted and replaced in their entirety with the following:
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 will, at the direction of the
Depositor, accept or reject such offer or vote for or against any offer for
new or exchanged securities or property in exchange for a Trust Security.
Should any issuance, exchange or substitution be effected, 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.
(26) Section 3.05 is hereby amended by adding the following as subsection
(c):
(c) 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.
(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, 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
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
costs of a portfolio consultant, 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 3.05 is hereby amended by adding the following as subsection
(b)(vi):
(b)(vi) Notwithstanding the foregoing, The Trustee shall not be required to
make a distribution from the Income Account or the Capital Account unless
the aggregate cash available for distribution within the meaning of Treas.
Reg 1.671-5T(b)(5) from the Income Account and the Capital Account is equal
to or greater than .1% of the net asset value of the Trust on the related
Record Date, provided, however, that the Trustee shall in any event
distribute the balance of the Income Account and Capital Account on the
Distribution Date occurring in December of each year (including in such
distribution income receivable by the Trust on or prior to the December
Distribution Date). This provision is intended to comply with Treas. Reg.
1.675-5T(c)(2)(v)(C), and shall interpreted consistent therewith and with
any successor regulation.
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
------------------------------------------------------
Senior Managing Director and
General Counsel
THE BANK OF NEW YORK, TRUSTEE
By /s/ Xxxx Xxxxxxx
----------------------------------------------------
Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
CLAYMORE SECURITIES DEFINED PORTFOLIOS, SERIES 323
(Note: Incorporated herein and made a part hereof are the "Trust
Portfolio(s)" as set forth in the Prospectus.)
