Exhibit 1.1
CLAYMORE SECURITIES DEFINED PORTFOLIOS,
SERIES 124
PERONI GROWTH DEFINED PORTFOLIO, 2002 SERIES
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated as of June 17, 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.
PART II.
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
(1) The equity securities listed in the Schedule hereto have been
deposited in the Trust under this Reference Trust Agreement as indicated on
the attached Schedule A.
(2) For the purposes of the definition of the term "Unit" in Article
I, it is hereby specified that the fractional undivided interest in and
ownership of a Trust is the amount described in Amendment No. 2 to the
Trust's Registration Statement (Registration No. 333-87754) as filed with
the Securities and Exchange Commission today. The fractional undivided
interest may (a) increase by the number of any additional Units issued
pursuant to Section 2.03, (b) increase or decrease in connection with an
adjustment to the number of Units pursuant to Section 2.03, or (c) decrease
by the number of Units redeemed pursuant to Section 5.02.
(3) The term "Deferred Sales Charge" shall mean the "deferred sales
fee" as described in the Prospectus.
(4) The terms "Income Account Record Date" and "Capital Account Record
Date" shall mean the dates set forth under "Essential Information--Record
Dates" in the Prospectus.
(5) The terms "Income Account Distribution Date" and "Capital Account
Distribution Date" shall mean the dates set forth under "Essential
Information--Distribution Dates" in the Prospectus.
(6) The term "Initial Date of Deposit" shall mean the date of this
Reference Trust Agreement as set forth above.
(7) Section 2.03 is hereby amended by adding the following sentence
as the third sentence of Section 2.03:
"Effective as of the Evaluation Time on June 17, 2002, in the event
that the aggregate value of Securities in the Trust has increased since the
evaluation on June 16, 2002, the Trustee shall issue such number of
additional Units to the Unitholder of outstanding Units as of the close of
business on June 16, 2002, that the price per Unit computed as of the
Evaluation Time on June 17, 2002, 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 June 16,
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 June
17, 2002, plus the maximum applicable sales charge shall equal
approximately $10 per Unit (based on the number of Units outstanding as of
said Evaluation Time, reflecting cancellation of Units pursuant to this
sentence)."
(8) The number of Units of the Trust referred to in Section 2.03 shall
be equal to the "Number of Units" in the Statement of Financial Condition
in the Prospectus.
(9) The first paragraph of Section 5.01 is hereby amended and restated
to read as follows:
Section 5.01. Trust Evaluation. As of the Evaluation Time (a) on the
last Business Day of each year, (b) on the day on which any Unit is
tendered for redemption and (c) on any other day desired by the Trustee or
requested by the Depositor, the Trustee shall: Add (i) all moneys on
deposit in a Trust (excluding (1) cash, cash equivalents or Letters of
Credit deposited pursuant to Section 2.01 hereof for the purchase of
Contract Securities, unless such cash or Letters of Credit have been
deposited in the Interest and Principal Accounts because of failure to
apply such moneys to the purchase of Contract Securities pursuant to the
provisions of Sections 2.01, 3.03 and 3.04 hereof and (2) moneys credited
to the Reserve Account pursuant to Section 3.05 hereof), plus (ii) the
aggregate Evaluation of all Securities (including Contract Securities and
Reinvestment Securities) on deposit in such Trust as is determined by the
Evaluator (such evaluations shall take into account and itemize separately
(i) the cash on hand in the Trust or moneys in the process of being
collected from matured interest coupons or bonds matured or called for
redemption prior to maturity, (ii) the value of each issue of the
Securities in the Trust on the bid side of the market as determined by the
Evaluator pursuant to Section 4.01, and (iii) interest accrued thereon not
subject to collection and distribution). For each such Evaluation there
shall be deducted from the sum of the above (i) amounts representing any
applicable taxes or governmental charges payable out of the respective
Trust and for which no deductions shall have previously been made for the
purpose of addition to the Reserve Account, (ii) amounts representing
estimated accrued fees of the Trust and expenses of such Trust including
but not limited to unpaid fees and expenses of the Trustee, the Evaluator,
the Supervisor, the Depositor and bond counsel, in each case as reported by
the Trustee to the Evaluator on or prior to the date of evaluation, (iii)
any moneys identified by the Trustee, as of the date of the Evaluation, as
held for distribution to Unitholders of record as of a Record Date or for
payment of the Redemption Value of Units tendered prior to such date and
(iv) unpaid organization costs in the estimated amount per Unit set forth
in the Prospectus. The resulting figure is herein called a "Trust Fund
Evaluation." The value of the pro rata share of each Unit of the respective
Trust determined on the basis of any such evaluation shall be referred to
herein as the "Unit Value."
(10) For the purposes of Section 6.01(g)(i), the liquidation amount
shall be 20% of the total value of all Securities deposited in the Trust
during the Trust's initial offering period at the time of each such
deposit.
(11) Article III is hereby amended by adding the following section:
Section 3.23. Bookkeeping and Administrative Expenses. If so
provided in the Prospectus, as compensation for providing bookkeeping and
other administrative services of a character described in
Section 26(a)(2)(C) of the Investment Company Act of 1940 to the extent
such services are in addition to, and do not duplicate, the services to be
provided hereunder by the Trustee or the Depositor for providing
supervisory services, the Depositor shall receive at the times specified in
Section 3.05, against a statement or statements therefor submitted to the
Trustee an aggregate annual fee in an amount which shall not exceed that
amount set forth in the Prospectus, calculated as specified in Section
3.05, but in no event shall such compensation, when combined with all
compensation received from other series of the Trust or other unit
investment trusts sponsored by the Depositor or its affiliates for
providing such bookkeeping and administrative services in any calendar year
exceed the aggregate cost to the Depositor for providing such services to
such unit investment trusts. Such compensation may, from time to time, be
adjusted provided that the total adjustment upward does not, at the time of
such adjustment, exceed the percentage of the total increase, during the
period from the Trust Agreement to the date of any such increase, in
consumer prices for services as measured by the United States Department of
Labor Consumer Price Index entitled "All Services Less Rent of Shelter" or
similar index as described under Section 3.18. The consent or concurrence
of any Unitholder hereunder shall not be required for any such adjustment
or increase. Such compensations shall be paid by the Trustee, upon receipt
of invoice therefor from the Depositor, upon which, as to the cost incurred
by the Depositor of providing services hereunder the Trustee may rely, and
shall be charged against the Income and Capital Accounts as specified in
Section 3.05. The Trustee shall have no liability to any Unitholder or
other person for any payment made in good faith pursuant to this Section.
If the cash balance in the Income and Capital Accounts shall be
insufficient to provide for amounts payable pursuant to this Section 3.23,
the Trustee shall have the power to sell (1) Securities from the current
list of Securities designated to be sold pursuant to Section 5.02 hereof,
or (2) if no such Securities have been so designated, such Securities as
the Trustee may see fit to sell in its own discretion, and to apply the
proceeds of any such sale in payment of the amounts payable pursuant to
this Section 3.23.
Any moneys payable to the Depositor pursuant to this Section 3.23
shall be secured by a prior lien on the Trust except that no such lien
shall be prior to any lien in favor of the Trustee under the provisions of
Section 6.04.
(12) The phrases "supervisory services," "supervisory portfolio
services" and "portfolio supervisory services" in Sections 3.18 are hereby
replaced with the phrase "portfolio supervisory services and bookkeeping
and administrative expenses."
(13) Section 7.05 is hereby amended and replaced in its entirety with
the following:
Section 7.05. Compensation. The Depositor shall receive at the times
set forth in Sections 3.05, 3.18, 3.23 and 4.03 as compensation for
performing portfolio supervisory services, bookkeeping and administrative
expenses and evaluation services, such amount and for such periods as
specified the Prospectus and/or Reference Trust Agreement. The compensation
for providing portfolio supervisory services, bookkeeping and
administrative expenses and evaluation services shall be made on the basis
of the largest number of units outstanding at any time during the period
for which such compensation is being computed. At no time, however, will
the total amount received by the Depositor for services rendered to all
series of Claymore Securities Defined Portfolios in any calendar year
exceed the aggregate cost to them of supplying such services in such year.
Such rate may be increased by the Trustee from time to time, without the
consent or approval of any Unitholder, or the Depositor, by amounts not
exceeding the proportionate increase during the period from the date of
such Prospectus and/or Reference Trust Agreement to the date of any such
increase, in consumer prices as published either under the classification
"All Services Less Rent" in the Consumer Price Index published by the
United States Department of Labor or, if such Index is no longer published,
a similar index.
In the event that any amount of the compensation paid to the Depositor
pursuant to Sections 3.05, 3.18 and 3.23 and 4.03 is found to be an
improper charge against the Trust, the Depositor shall reimburse the Trust
in such amount. An improper charge shall be established if a final judgment
or order for reimbursement of the Trust shall be rendered against the
Depositor and such judgment or order shall not be effectively stayed or a
final settlement is established in which the Depositor agrees to reimburse
the Trust for amounts paid to the Depositor pursuant to this Section 7.05.
The 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Chief Financial Officer
THE BANK OF NEW YORK, TRUSTEE
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
CLAYMORE SECURITIES DEFINED PORTFOLIOS, SERIES 124
(Note: Incorporated herein and made a part hereof is the "Trust Portfolio" as
set forth in the Prospectus.)