Exhibit 1.1
CLAYMORE SECURITIES DEFINED PORTFOLIOS,
SERIES 288
PERONI GROWTH PORTFOLIO, SPRING 2006 SERIES
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated as of March 16, 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. 333-132275) 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) For the purposes of Section 6.01(g)(i), the liquidation amount shall
be 20% of the total value of all Securities deposited in the Trust(s)
during a Trust's initial offering period at the time of each such
deposit.
(13) 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.
(14) 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."
(15) 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.
(16) 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.
(17) 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.
(18) Section 2.05 (b) is replaced in its entirety with the following:
(b) Additional Securities deposited during the 90 days following the
initial deposit made pursuant to Section 2.01 hereof shall maintain as
closely as practicable the Original Proportionate Relationship, except
as provided in this Section 2.05(b). Additional Securities may be
deposited or purchased in round lots; if the amount of the deposit is
insufficient to acquire round lots of each Security to be acquired,
the Additional Securities shall be deposited or purchased in the order
of the Security in the Trust most under represented immediately before
the deposit with respect to the Original Proportionate Relationship.
Instructions to purchase Additional Securities under this Section
shall be in writing and shall direct the Trustee to purchase, or enter
into contracts to purchase, Additional Securities; such instructions
shall also specify the name, CUSIP number, if any, aggregate amount of
each such Additional Security and price or range of price. If, at the
time of a subsequent deposit under this Section, Securities of an
Original Issue are unavailable, cannot be purchased at reasonable
prices or their purchase is prohibited or restricted by applicable
law, regulation or policies, in lieu of the portion of the deposit
that would otherwise be represented by those Securities, the Depositor
may (A) deposit (or instruct the Trustee to purchase) Securities of
another Original Issue or (B) deposit cash or a letter of credit with
instructions to acquire the Securities of such Original Issue when
they become available.
(19) 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.
(20) 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.
(21) 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.
(22) 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.
(23) 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.
(24) 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 March 16, 2006, in the event
that the aggregate value of Securities in the Trust has increased
since the evaluation on March 15, 2006, the Trustee shall issue such
number of additional Units to the Unitholder of outstanding Units as
of the close of business on March 15, 2006, that the price per Unit
computed as of the Evaluation Time on March 16, 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 March 15, 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 March 16,
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.
(25) 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.
(26) Section 2.05(a) is hereby amended and replaced in its 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 during the 90 days
following the initial date of deposit shall replicate, to the
extent practicable, as specified in subparagraph (b), the
Original Proportionate Relationship, as defined hereinabove. Each
deposit made pursuant to this Section 2.05 after the 90 days
following the initial date of deposit made pursuant to Section
2.01 hereof (except for deposits made to replace Failed Contract
Securities if such deposits occur within 20 days from the date of
a failure occurring within such initial 90 day period) shall
maintain exactly the proportionate relationship existing among
the Securities 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.
(27) The second sentence of Section 3.01 is replaced in its entirety as
follows:
Section 3.01. Initial Costs. 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 further 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.
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
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Senior Managing Director and
General Counsel
THE BANK OF NEW YORK, TRUSTEE
By /s/ Xxxx Xxxxxxx
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Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
CLAYMORE SECURITIES DEFINED PORTFOLIOS, SERIES 288
(Note: Incorporated herein and made a part hereof are the "Trust
Portfolio(s)" as set forth in the Prospectus.)
