EXHIBIT 1.1
GUGGENHEIM DEFINED PORTFOLIOS, SERIES 1951
XXXXXXXX & XXXXXXXX PREFERRED PORTFOLIO, SERIES 49
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated as of October 3, 2019, between
Guggenheim Funds Distributors, LLC, as Depositor, and The Bank of New York
Mellon, 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(s) is the amount described in Amendment No. 1 to the Trust's Registration
Statement (Registration No. 333-233882) 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) 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. 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.
(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 Guggenheim 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.
(14) 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.
(15) 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.
(16) 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.
(17) Section 9.05 is hereby revised to read as follows:
Section 9.05. Written Notice. Any notice, demand, direction or instruction
to be given to the Depositor, Evaluator or Supervisor hereunder shall be in
writing and shall be duly given if mailed or delivered to the Depositor, 000
Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other address as shall
be specified by the Depositor to the other parties hereto in writing.
(18) 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.
(19) 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.
(20) 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 October 3, 2019, in the event that the aggregate value of
Securities in the Trust has increased since the evaluation on October 2, 2019,
the Trustee shall issue such number of additional Units to the Unitholder of
outstanding Units as of the close of business on October 3, 2019, that the price
per Unit computed as of the Evaluation Time on October 3, 2019, 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 October 2,
2019, 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 October 3, 2019,
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.
(21) 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.
(22) 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 to 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.
(23) 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.
(24) 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 materially 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.
(25) Section 3.01 is hereby amended by as follows:
Section 3.01. Initial Costs. Subject to reimbursement as hereinafter
provided, the cost of organizing a 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, if any, 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.
(26) Section 9.01(a)(iii) is hereby amended as follows:
(a)(iii) to make such other provision regarding matters or questions
arising hereunder as shall not materially adversely affect the interests of the
Unitholders; provided, however, that in no event may any amendment be made which
would adversely affect the status of a Trust for federal income tax purposes.
(27) Notwithstanding the foregoing, no In Kind Distribution requests made
pursuant to Section 5.02 and submitted during the 30 business days prior to the
Trust's Mandatory Termination Date will be honored. In addition, no unitholder
will be eligible for an In Kind Distribution of securities pursuant to Section
9.02. Furthermore, the availability of In Kind Distributions may be modified or
discontinued as described in the Prospectus.
(28) Section 3.15 is hereby deleted and replaced in its entirety with the
following:
Section 3.15. Regulated Investment Company Election. If so provided in the
Prospectus for a Trust Fund, such Trust Fund elects to be treated and to qualify
as a "regulated investment company" as defined in the Internal Revenue Code, and
the Trustee is hereby directed to make such elections, including any appropriate
election to be taxed as a corporation, as shall be necessary to effect such
qualification. In addition, the Trustee is authorized to take any actions
necessary to allow a Trust Fund to qualify as a regulated investment company.
(29) All references to The Bank of New York in the Standard Terms and
Conditions of the Trust shall be replaced with "The Bank of New York Mellon."
(30) Notwithstanding anything to the contrary in the Standard Terms and
Conditions of the Trust, Section 3.19 is hereby amended by adding the following
paragraph:
In limited circumstances and only if deemed in the best interests
of the Unitholders, the Depositor is authorized to instruct the
Trustee to change the dates on which the deferred sales charge is
deducted as described in the Prospectus. The deferred sales charge
payment dates may be delayed: (i) in order for a Trust which is a
widely held fixed investment trust as defined in Treas. Reg.
Section 1.671-5(b)(22) to report in accordance with any of the safe
harbor methods described in Treas. Reg. Section 1.671-5(f); or (ii)
in order for a Trust which is a regulated investment company as
defined by the Internal Revenue Code to maintain its qualification
as a regulated investment company. The Trustee shall have no
liability for any tax or other liability incurred by reason of
action or inaction resulting from such direction. The Depositor
will amend the Prospectus to include the new dates on which the
deferred sales charge will be collected and distributing such
notice to Unitholders.
(31) Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, Section 3.19 shall be amended by adding the following
sentences at the end thereof:
"To the extent permitted by applicable law and regulatory
authorization, unpaid portions of the deferred sales charge shall
be secured by a lien on the Trust in favor of the Depositor,
provided that such lien shall be subordinate to the lien of the
Trustee granted by Section 6.04 of the Standard Terms and
Conditions of Trust. To the extent of such lien, the Trustee
shall hold the assets of the Trust for the benefit of the
Depositor, provided that the Trustee is authorized to make
dispositions, distributions and payments for expenses in the
ordinary course of the administration of the Trust without regard
to such lien."
(32) All reference to Claymore Securities, Inc. in the Standard Terms and
Conditions of Trust shall be replaced with "Guggenheim Funds Distributors, LLC"
(33) Notwithstanding anything to the contrary in the Standard Terms and
Conditions of the Trust, the first paragraph of Section 9.02 is hereby amended
and restated to read as follows:
This Indenture and each Trust created hereby shall terminate upon
the maturity, redemption, sale or other disposition as the case may
be of the last Security held in such Trust hereunder unless sooner
terminated as hereinbefore specified, and may be terminated (i) at
any time by the written consent of Unitholders representing at
least 66-2/3% of the Units then outstanding or (ii) if stated in
the Prospectus, if the per unit net asset value reaches or exceeds
15% above its initial net asset value as calculated on the date of
deposit, net of the upfront sales charge and other related
investment expenses; provided that in no event shall any Trust
continue beyond the Mandatory Termination Date. If the value of a
Trust shall be less than the applicable minimum value stated in the
prospectus (generally 20% of the total value of securities
deposited in the Trust during the initial offering period), the
Trustee may in its discretion, and shall, when so directed by the
Depositor, terminate the Trust. Upon the date of termination the
registration books of the Trustee shall be closed.
(34) Section 3.05(b)(ii) is hereby amended and replaced in its entirety
with the following:
For the purposes of this Section 3.05, the term "Income
Distribution" shall be calculated as set forth in subparagraph (A),
below, unless the Prospectus provides for the averaging of income
distributions, in which case, "Income Distribution" shall be shall
be calculated as set forth in subparagraph (B), below. Accordingly,
the Unitholder's "Income Distribution" shall be equal to:
(A) such Unitholder's pro rata share of the cash balance (other
than any amortized discount) in the Income Account computed as of
the close of business on the Income Account Record Date immediately
preceding such Income Distribution after deduction of (1) the fees
and expenses then deductible pursuant to Section 3.05(a) and (2)
the Trustee's estimate of other expenses properly chargeable to the
Income Account pursuant to the Indenture which have accrued, as of
such Income Account Record Date or are otherwise properly
attributable to the period to which such Income Distribution
relates; or
(B) such Unitholder's pro rata share of the balance in the Income
Account calculated on the basis of a fraction (the numerator of
which is one and the denominator of which is the total number of
Distribution Dates per year) of the estimated annual income to the
Trust for the ensuing twelve months computed as of the close of
business on the Record Date immediately preceding such Income
Distribution after deduction of (1) the fees and expenses then
deductible pursuant to Section 3.05(a) and (2) the Trustee's
estimate of other expenses properly chargeable to the Income
Account pursuant to the Indenture which have accrued, as of such
Record Date or are otherwise properly attributable to the period to
which such Income Distribution relates.
In the event that the amount on deposit in the Income Account is
not sufficient for the payment of the amount intended to be
distributed to Unitholders on the basis of the aforesaid
computation in paragraph (B), the Trustee is authorized to advance
its own funds and cause to be deposited in and credited to the
Income Account such amounts as may be required to permit payment of
the related distribution to be made as aforesaid and shall be
entitled to be reimbursed, without interest, out of income payments
received by the Trust subsequent to the date of such advance. Any
such advance shall be reflected in the Income Account until repaid.
(35) The definitions of "Contract Securities," "Equity Securities" and
"Securities" in Section 1.01 are hereby amended and replaced in their entirety
with the following:
"Contract Securities" shall mean Securities which are not
actually delivered concurrently with the execution and delivery
of the Reference Trust Agreement and which are to be acquired by
a Trust pursuant to contracts, including (i) Securities listed in
Schedule A to the Reference Trust Agreement and (ii) Securities
which the Depositor has contracted to purchase for the Trust
pursuant to Section 2.01.
"Equity Securities" shall mean any equity securities of
corporations or other entities (including such securities held in
American Depositary Receipt ("ADRs") or similar form) including
delivery statements related to contracts, if any, for the
purchase of certain securities and cash, certified or bank check
or checks or letter of credit or letters of credit sufficient in
amount or availability required for such purchase, deposited in
irrevocable trust and listed on Schedule A of the Reference Trust
Agreement, and any securities received in addition to, or in
exchange, substitution or replacement for, such securities
pursuant to Sections 2.01, 3.10 and 3.17 hereof, as may from time
to time continue to be held as a part of the Trust."
"Securities" shall mean the securities of corporations or other
entities, including Contract Securities, Fixed Income Securities
and Equities Securities, deposited in irrevocable trust and
listed in the Schedules to the Reference Trust Agreement or which
are deposited in or purchased on behalf of a Trust pursuant to
Section 2.05 or as otherwise permitted hereby, and any securities
received in exchange, substitution or replacement for such
securities, as may from time to time continue to be held as a
part of the Trusts.
(36) Section 1.01 is hereby amended by adding the following definition of
"Fixed Income Securities":
"Fixed Income Securities" shall mean debt obligations, including
delivery statements relating to "when issued" and/or "regular
way" contracts, if any, for the purchase of certain fixed income
securities and cash, certified or bank checks or checks or letter
of credit or letters of credit sufficient in amount or
availability required for such purchase, deposited in irrevocable
trust and listed in Schedule A of the Reference Trust Agreement,
and any obligations received in addition to, or in exchange,
substitution or replacement for, such obligations pursuant to
Sections 2.01, 3.10, 3.17 and 3.21 hereof, as may from time to
time continue to be held as part of the Trust.
(37) The first paragraph of Section 3.02 is hereby amended and replaced in
its entirety with the following:
Income Account. The Trustee shall collect the dividends, interest
or other like cash distributions on the Securities in each Trust as
such becomes payable (including all moneys representing penalties
for the failure to make timely payments on the Securities, or as
liquidated damages for default or breach of any condition or term
of the Securities or of the underlying instrument relating to any
Securities and other income attributable to a Failed Contract
Security for which no Replacement Security has been obtained
pursuant to Section 3.17 hereof and interest accrued but unpaid
prior to the date of deposit of the Securities, if applicable, in
Trust and including that part of the proceeds of the sale,
liquidation, redemption, prepayment or maturity of any Fixed Income
Securities or insurance payments thereon which represent interest
thereon, if applicable) and credit such income to a separate
account for each Trust to be known as the "Income Account."
(38) Section 3.06(A)(1) is hereby amended and replaced in its entirety
with the following:
(1) The amount of income received on the Securities (including
income received as a portion of the proceeds of any disposition of
Securities) and accreted original discount on the Fixed Income
Securities;
(39) Section 3.07 is hereby amended and replaced in its entirety with the
following:
Section 3.07. Sale of Securities. (a) If necessary, in order to
maintain the sound investment character of a Trust, the Depositor
may direct the Trustee to sell, liquidate or otherwise dispose of
Securities in such Trust at such price and time and in such manner
as shall be determined by the Depositor, provided that the
Supervisor has determined, if appropriate, that any one or more of
the following conditions exist with respect to such Securities:
(i) That there has been a default on any of the Securities
in the payment of principal, interest or dividends, after declared
and when due and payable;
(ii) That any action or proceeding has been instituted at
law or equity seeking to restrain or enjoin the payment of
dividends on Equity Securities, or that there exists any legal
question or impediment affecting such Equity Securities or the
payment of dividends from the same;
(iii) That there has occurred any breach of covenant or
warranty in any document relating to the issuer of the Securities
which would adversely affect either immediately or contingently the
payment of dividends from the Equity Securities or the debt service
on the Fixed Income Securities, or the general credit standing of
the issuer or otherwise impair the sound investment character of
such Securities;
(iv) That there has been a default in the payment of
dividends, interest, principal of or income or premium, if any, on
any other outstanding obligations of the issuer or guarantor of
such Securities;
(v) That the price of any Security has declined to such an
extent or other such credit factors exist so that in the opinion of
the Supervisor, as evidenced in writing to the Trustee, the
retention of such Securities would be detrimental to the Trust and
to the interest of the Unitholders;
(vi) That all of the Securities in the Trust will be sold
pursuant to termination of the Trust pursuant to Section 9.02
hereof;
(vii) That such sale is required due to Units tendered for
redemption;
(viii) That there has been a public tender offer made for a
Security or a merger or acquisition is announced affecting a
Security, and that in the opinion of the Supervisor the sale or
tender of the Security is in the best interest of the Unitholders;
(ix) That such sale is necessary or advisable (A) to
maintain the qualification of the Trust as a regulated investment
company or (B) to provide funds to make any distribution for a
taxable year in order to avoid imposition of any income or excise
taxes on the Trust or on undistributed income in the Trust;
(x) That as result of the ownership of the Security, the
Trust or its Unitholders would be a direct or indirect shareholder
of a passive foreign investment company as defined in section
1297(a) of the Code;
(xi) That such sale is desirable because a Security is
determined to be taxed as a partnership for U.S. Federal tax
purposes;
(xii) That the Supervisor or its designee determines that
such sale is appropriate;
(xiii) That any action or proceeding has been instituted at
law or equity seeking to restrain or enjoin the payment of
principal or interest, or both, on any Fixed Income Security,
attacking the constitutionality of any enabling legislation or
alleging and seeking to have judicially determined the illegality
of the issuing body or the constitution of its governing body or
officers, the illegality, irregularity or omission of any necessary
acts or proceedings preliminary to the issuance of such Fixed
Income Securities, or seeking to restrain or enjoin the performance
by the officers or employees of any such issuing body of any
improper or illegal act in connection with the administration of
funds necessary for debt service on such Fixed Income Securities or
otherwise; or that there exists any other legal question or
impediment affecting such Fixed Income Securities or the payment of
debt service on the same;
(xiv) That Fixed Income Securities are the subject of an
advanced refunding. For the purposes of this Section 3.07(a)(xiv),
"an advanced refunding" shall mean when refunding Fixed Income
Securities are issued and the proceeds thereof are deposited in an
irrevocable trust to retire the Fixed Income Securities on or
before their redemption date;
(xv) If the Trust holds Fixed Income Securities, that as of
any Record Date such Securities are scheduled to be redeemed and
paid prior to the next succeeding monthly Distribution Date;
provided, however, that as the result of such sale the Trustee will
receive funds in an amount sufficient to enable the Trustee to
include in the next distribution from the Capital Account on such
next succeeding monthly Distribution Date at least $1.00 per 100
Units; or
(xvi) That such sale is necessary for the Trust to comply
with such federal and/or state securities laws, regulations and/or
regulatory actions and interpretations which may be in effect from
time to time.
(b) Upon receipt of a direction from the Depositor to dispose of
Securities as described in this Section 3.07, upon which the
Trustee shall rely, the Trustee shall proceed to sell or liquidate
the specified Securities in accordance with such direction, and
upon the receipt of the proceeds of any such sale or liquidation,
after deducting therefrom any fees and expenses of the Trustee
connected with such sale or liquidation and any brokerage charges,
taxes or other governmental charges shall deposit such net proceeds
in the applicable Capital Account; provided, however, that the
Trustee shall not liquidate or sell any Securities upon a direction
from the Depositor pursuant to Section 3.07(a)(xv), unless the
Trustee shall receive on account of such sale or liquidation the
full principal amount of such Securities, plus the premium, if any,
and the interest accrued and to accrue thereon to the date of the
redemption of such Securities.
(c) The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any sale made pursuant
to any such direction or by reason of the failure of the Depositor
to give any such direction, and in the absence of such direction
the Trustee shall have no duty to sell or liquidate any Securities
under this Section 3.07.
(40) The first sentence of Section 3.12 is hereby amended and replaced in
its entirety with the following:
If at any time a dividend (once due and payable) on any of the
Equity Securities shall not have been paid or the principal or
interest on any of the Fixed Income Securities shall be in default
and not paid or provisions for payment thereof shall not have been
duly made, within 30 days be in default, the Trustee shall notify
the Depositor thereof.
(41) Article III is hereby amended by adding the following two sections:
Section 3.25. Trustee Not Required to Amortize. Nothing in this
Indenture, or otherwise, shall be construed to require the Trustee
to make any adjustments between the Income and Capital Accounts of
any Trust by reason of any premium or discount in respect of any of
the Fixed Income Securities.
Section 3.21. Refunding Securities. In the event that an offer
shall be made by an obligor of any of the Fixed Income Securities
in a Trust to issue new obligations in exchange and substitution
for any issue of Fixed Income Securities pursuant to a plan for the
refunding or refinancing of such Fixed Income Securities, the
Depositor shall instruct the Trustee in writing to reject such
offer and either to hold or sell such Fixed Income Securities,
except that if (A) the issuer is in default with respect to such
Fixed Income Securities or (B) in the opinion of the Depositor,
given in writing to the Trustee, the issuer will probably default
with respect to such Fixed Income Securities in the reasonably
foreseeable future, the Depositor shall instruct the Trustee in
writing to accept or reject such offer or take any other action
with respect thereto as the Depositor may deem proper. Any
obligation so received in exchange shall be deposited hereunder and
shall be subject to the terms and conditions of this Indenture to
the same extent as the Fixed Income Securities originally deposited
hereunder. Within five days after such deposit, notice of such
exchange and deposit shall be given by the Trustee to each
Unitholder of such Trust, including an identification of the Fixed
Income Securities eliminated and the securities substituted
therefor.
(42) Sections 4.01(b) and 4.01(c) are hereby amended and replaced in their
entirety with the following:
(b) During the initial offering period of a Trust (as determined by
the Depositor) such Evaluation shall be made in the following
manner: (i) with respect to Securities for which market quotations
are readily available, such Evaluation shall be made on the basis
of the current market value of such Securities; and (ii) with
respect to other Securities' such Evaluation shall be made on the
basis of the fair value of such Securities as determined in good
faith by the Evaluator. If the Securities are listed on a national
or foreign securities exchange and market quotations of such
Securities are not readily available, the market value of such
Securities shall generally be based on the last available closing
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
closing sale price on such exchange or market 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 and the principal
market therefor is other than on such exchange, or if there is no
such available sale price on such exchange or if the Evaluator
determines that such price is inappropriate as a basis for
evaluation, such Evaluation shall generally be based on the
following methods or any combination thereof whichever the
Evaluator deems appropriate: (i) in the case of Equity Securities,
on the basis of the current offer price for comparable securities
on the over-the-counter market (unless the Evaluator deems such
price inappropriate as a basis for evaluation), (ii) on the basis
of current offering prices for the Fixed Income Securities as
obtained from investment dealers or brokers who customarily deal in
securities comparable to those held by the Trust; (iii) if current
ask or offering prices are not available for the
Securities, on the basis of current ask or offering prices for
comparable securities, (iv) by determining the valuation of
Securities on the ask or offering side of the market by appraisal,
(v) by utilizing a securities pricing service to help determine the
value of each issue so long as the service uses a similar
methodology to determine securities prices; or (vi) by any
combination of the above. With respect to shares issued by
investment companies registered under the Investment Company Act of
1940 that are not listed on a national or foreign securities
exchange, such valuations shall be made on the basis of the current
net asset value of such shares as determined by the issuers of such
shares. 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
such 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 at or immediately
prior to the Evaluation Time. For each Evaluation, the Trustee
shall also confirm and furnish to the Depositor the calculation of
the Trust Fund Evaluation to be computed pursuant to Section 5.01
(c) After the initial offering period of Units of a Trust (as
determined by the Depositor), Evaluation of the Securities shall be
made in the manner described in Section 4.01(b), on the basis of
the bid side value of the relevant currency exchange rate expressed
in U.S. dollars and, except in those cases in which the Securities
are listed on a national or foreign securities exchange and the
last available sale prices are utilized, on the basis of the last
available bid price of the Securities. In addition, the Evaluator
may reduce the Evaluation of each Security which is principally
traded outside of the United States 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.
(43) The first paragraph of Section 5.01 is hereby amended and replaced in
its entirety with the following:
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 or moneys in the process of
being collected from matured interest coupons or bonds matured or
called for redemption prior to maturity (excluding (A) 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 Income and Capital
Accounts because of failure to apply such moneys to the purchase of
Contract Securities pursuant to the provisions of Sections 2.01,
3.02 and 3.03 hereof and (B) moneys credited to the Reserve Account
pursuant to Section 3.04 hereof), plus (ii) the aggregate
Evaluation of all Securities (including Contract Securities and
additional Securities for which purchase contracts have been
entered into pursuant to the Depositor's instructions pursuant to
Section 2.05, less the purchase price of such contracts) on deposit
in such Trust (such Evaluation to be made on the basis of the
aggregate underlying value of the Securities as determined in
Section 4.01(b) for the purpose of computing redemption value of
Units as set forth in Section 5.02 hereof), plus (iii) all other
income from the Securities (including dividends receivable on the
Equity Securities trading ex-dividend as of the date of such
valuation and including interest accrued on the Fixed Income
Securities not subject to collection and distribution) as of the
Evaluation Time on the date of such Evaluation together with all
other assets of such Trust. For each such computation there shall
be deducted from the sum of the above (i) amounts representing any
applicable taxes or 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 expenses of such Trust including but
not limited to unpaid fees and expenses of the Trustee, the
Evaluator, the Supervisor, the Depositor and counsel, in each case
as reported by the Trustee to the Depositor on or prior to the date
of computation, (iii) amounts representing unpaid organization
costs, (iv) if the Prospectus for a Trust provides that the
creation and development fee, if any, accrues on a daily basis,
amounts representing unpaid accrued creation and development fees,
(v) if the Prospectus for a Trust provides that the deferred sales
charge, if any, accrues on a daily basis, amounts representing
unpaid accrued deferred sales charge, and (vi) any moneys
identified by the Trustee, as of the date of such computation, as
held for distribution to Unitholders of record as of an Income or
Capital Account Record Date, or for payment of the Redemption Value
of Units tendered, prior to such date. 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." Amounts receivable by the Trust in foreign currency shall
be reported to the Evaluator who shall convert the same to U.S.
dollars based on current exchange rates, in the same manner as
provided in Section 4.01(b) or 4.01(c), as applicable, for the
conversion of the valuation of foreign Securities, and the
Evaluator shall report such conversion with each Evaluation made
pursuant to Section 4.01.
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.
GUGGENHEIM FUNDS DISTRIBUTORS, LLC, DEPOSITOR
By /s/ Xxx Xxx
---------------------------------
Vice President and Secretary
THE BANK OF NEW YORK MELLON, TRUSTEE
By /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
GUGGENHEIM DEFINED PORTFOLIOS, SERIES 1951
(Note: Incorporated herein and made a part hereof are the "Trust
Portfolio(s)" as set forth in the Prospectus.)
