Exhibit 1.1
GUGGENHEIM DEFINED PORTFOLIOS,
SERIES 764
GUGGENHEIM ABC HIGH DIVIDEND STRATEGY PORTFOLIO, SERIES 5
GUGGENHEIM GLOBAL TELECOM STRATEGY PORTFOLIO, SERIES 5
GUGGENHEIM BMAC COMMODITY PRODUCERS STRATEGY PORTFOLIO, SERIES 5
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated as of March 1, 2011, between
Guggenheim Funds Distributors, Inc., 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 is the amount described in Amendment No. 1 to the Trust's Registration
Statement (Registration No. 333-171972) as filed with the Securities and
Exchange Commission today. The fractional undivided interest may (a) increase by
the number of any additional Units issued pursuant to Section 2.03, (b) increase
or decrease in connection with an adjustment to the number of Units pursuant to
Section 2.03, or (c) decrease by the number of Units redeemed pursuant to
Section 5.02.
(3) The term "Deferred Sales Charge" shall mean the "deferred sales fee" as
described in the Prospectus.
(4) The terms "Income Account Record Date" and "Capital Account Record
Date" shall mean the dates set forth under "Essential Information--Record Dates"
in the Prospectus.
(5) The terms "Income Account Distribution Date" and "Capital Account
Distribution Date" shall mean the dates set forth under "Essential
Information--Distribution Dates" in the Prospectus.
(6) The term "Initial Date of Deposit" shall mean the date of this
Reference Trust Agreement as set forth above.
(7) The definition of "Supplemental Indenture" is hereby deleted in its
entirety.
(8) The definition of "Addendum to the Reference Trust Agreement" is hereby
deleted in its entirety.
(9) The term "Additional Securities" shall mean such Securities which have
been deposited pursuant to Section 2.05 to effect an increase over the number of
Units initially specified in the Reference Trust Agreement.
(10) The number of Units of the Trust(s) referred to in Section 2.03 shall
be equal to the "Number of Units" in the Statement(s) of Financial Condition in
the Prospectus.
(11) The first paragraph of Section 5.01 is hereby amended and restated to
read as follows:
Section 5.01. Trust Evaluation. As of the Evaluation Time (a) on the last
Business Day of each year, (b) on the day on which any Unit is tendered for
redemption and (c) on any other day desired by the Trustee or requested by the
Depositor, the Trustee shall: Add (i) all moneys on deposit in a Trust
(excluding (1) cash, cash equivalents or Letters of Credit deposited pursuant to
Section 2.01 hereof for the purchase of Contract Securities, unless such cash or
Letters of Credit have been deposited in the Interest and Principal Accounts
because of failure to apply such moneys to the purchase of Contract Securities
pursuant to the provisions of Sections 2.01, 3.03 and 3.04 hereof and (2) moneys
credited to the Reserve Account pursuant to Section 3.05 hereof), plus (ii) the
aggregate Evaluation of all Securities (including Contract Securities and
Reinvestment Securities) on deposit in such Trust as is determined by the
Evaluator (such evaluations shall take into account and itemize separately (i)
the cash on hand in the Trust or moneys in the process of being collected from
matured interest coupons or bonds matured or called for redemption prior to
maturity, (ii) the value of each issue of the Securities in the Trust on the bid
side of the market as determined by the Evaluator pursuant to Section 4.01, and
(iii) interest accrued thereon not subject to collection and distribution). For
each such Evaluation there shall be deducted from the sum of the above (i)
amounts representing any applicable taxes or governmental charges payable out of
the respective Trust and for which no deductions shall have previously been made
for the purpose of addition to the Reserve Account, (ii) amounts representing
estimated accrued fees of the Trust and expenses of such Trust including but not
limited to unpaid fees and expenses of the Trustee, the Evaluator, the
Supervisor, the Depositor and bond counsel, in each case as reported by the
Trustee to the Evaluator on or prior to the date of evaluation, (iii) any moneys
identified by the Trustee, as of the date of the Evaluation, as held for
distribution to Unitholders of record as of a Record Date or for payment of the
Redemption Value of Units tendered prior to such date and (iv) unpaid
organization costs in the estimated amount per Unit set forth in the Prospectus.
The resulting figure is herein called a "Trust Fund Evaluation." The value of
the pro rata share of each Unit of the respective Trust determined on the basis
of any such evaluation shall be referred to herein as the "Unit Value."
(12) Article III is hereby amended by adding the following section:
Section 3.23. Bookkeeping and Administrative Expenses. If so provided in
the Prospectus, as compensation for providing bookkeeping and other
administrative services of a character described in Section 26(a)(2)(C) of the
Investment Company Act of 1940 to the extent such services are in addition to,
and do not duplicate, the services to be provided hereunder by the Trustee or
the Depositor for providing supervisory services, the Depositor shall receive at
the times specified in Section 3.05, against a statement or statements therefor
submitted to the Trustee an aggregate annual fee in an amount which shall not
exceed that amount set forth in the Prospectus, calculated as specified in
Section 3.05, but in no event shall such compensation, when combined with all
compensation received from other series of the Trust or other unit investment
trusts sponsored by the Depositor or its affiliates for providing such
bookkeeping and administrative services in any calendar year exceed the
aggregate cost to the Depositor for providing such services to such unit
investment trusts. Such compensation may, from time to time, be adjusted
provided that the total adjustment upward does not, at the time of such
adjustment, exceed the percentage of the total increase, during the period from
the Trust Agreement to the date of any such increase, in consumer prices for
services as measured by the United States Department of Labor Consumer Price
Index entitled "All Services Less Rent of Shelter" or similar index as described
under Section 3.18. The consent or concurrence of any Unitholder hereunder shall
not be required for any such adjustment or increase. Such compensations shall be
paid by the Trustee, upon receipt of invoice therefor from the Depositor, upon
which, as to the cost incurred by the Depositor of providing services hereunder
the Trustee may rely, and shall be charged against the Income and Capital
Accounts as specified in Section 3.05. The Trustee shall have no liability to
any Unitholder or other person for any payment made in good faith pursuant to
this Section.
If the cash balance in the Income and Capital Accounts shall be
insufficient to provide for amounts payable pursuant to this Section 3.23, the
Trustee shall have the power to sell (1) Securities from the current list of
Securities designated to be sold pursuant to Section 5.02 hereof, or (2) if no
such Securities have been so designated, such Securities as the Trustee may see
fit to sell in its own discretion, and to apply the proceeds of any such sale in
payment of the amounts payable pursuant to this Section 3.23. Any moneys payable
to the Depositor pursuant to this Section 3.23 shall be secured by a prior lien
on the Trust except that no such lien shall be prior to any lien in favor of the
Trustee under the provisions of Section 6.04.
Any moneys payable to the Depositor pursuant to this Section 3.23 shall be
secured by a prior lien on the Trust except that no such lien shall be prior to
any lien in favor of the Trustee under the provisions of Section 6.04.
(13) The phrases "supervisory services," "supervisory portfolio services"
and "portfolio supervisory services" in Sections 3.18 are hereby replaced with
the phrase "portfolio supervisory services and bookkeeping and administrative
expenses."
(14) Section 7.05 is hereby amended and replaced in its entirety with the
following:
Section 7.05. Compensation. The Depositor shall receive at the times set
forth in Sections 3.05, 3.18, 3.23 and 4.03 as compensation for performing
portfolio supervisory services, bookkeeping and administrative expenses and
evaluation services, such amount and for such periods as specified the
Prospectus and/or Reference Trust Agreement. The compensation for providing
portfolio supervisory services, bookkeeping and administrative expenses and
evaluation services shall be made on the basis of the largest number of units
outstanding at any time during the period for which such compensation is being
computed. At no time, however, will the total amount received by the Depositor
for services rendered to all series of Claymore Securities Defined Portfolios in
any calendar year exceed the aggregate cost to them of supplying such services
in such year. Such rate may be increased by the Trustee from time to time,
without the consent or approval of any Unitholder, or the Depositor, by amounts
not exceeding the proportionate increase during the period from the date of such
Prospectus and/or Reference Trust Agreement to the date of any such increase, in
consumer prices as published either under the classification "All Services Less
Rent" in the Consumer Price Index published by the United States Department of
Labor or, IF such Index is no longer published, a similar index.
In the event that any amount of the compensation paid to the Depositor
pursuant to Sections 3.05, 3.18 and 3.23 and 4.03 is found to be an improper
charge against a Trust, the Depositor shall reimburse the Trust in such amount.
An improper charge shall be established if a final judgment or order for
reimbursement of the Trust shall be rendered against the Depositor and such
judgment or order shall not be effectively stayed or a final settlement is
established in which the Depositor agrees to reimburse the Trust for amounts
paid to the Depositor pursuant to this Section 7.05.
(15) The first two sentences of Section 3.22 are hereby amended and
replaced with the following:
Section 3.22. Creation and Development Fee. If the Prospectus related to a
Trust specifies a creation and development fee, the Trustee shall, on or
immediately after the end of the initial offering period, withdraw from the
Capital Account, an amount equal to the unpaid creation and development fee as
of such date and credit such amount to a special non-Trust account designated by
the Depositor out of which the creation and development fee will be distributed
to the Depositor (the "Creation and Development Account"). The creation and
development fee is the per unit amount specified in the Prospectus for the
Trust.
(16) Article III is hereby amended by adding the following section:
Section 3.24. License Fees. If so provided in the Prospectus, the Depositor
may enter into a Licensing Agreement (the "Agreement") with a licensor (the
"Licensor") described in the Prospectus in which the Trust(s), as consideration
for the licenses granted by the Licensor for the right to use its trademarks and
trade names, intellectual property rights or for the use of databases and
research owned by the Licensor, will pay a fee set forth in the Agreement to the
applicable Licensor or the Depositor to reimburse the Depositor for payment of
the expenses.
If the Agreement provides for an annual license fee computed in whole or
part by reference to the average daily net asset value of the Trust assets, for
purpose of calculating the accrual of estimated expenses such annual fee shall
accrue at a daily rate and the Trustee is authorized to compute an estimated
license fee payment (i) until the Depositor has informed the Trustee that there
will be no further deposits of additional Securities, by reference to an
estimate of the average daily net asset value of the Trust assets which the
Depositor shall provide the Trustee, (ii) thereafter and during the calendar
quarter in which the last business day of the period described in clause (i)
occurs, by reference to the net asset value of the Trust assets as of such last
business day, and (iii) during each subsequent calendar quarter, by reference to
the net asset value of the Trust assets as of the last business day of the
preceding calendar quarter. The Trustee shall adjust the net asset value (Trust
Fund Evaluation) as of the dates specified in the preceding sentence to account
for any variation between accrual of estimated license fee and the license fee
payable pursuant to the Agreement, but such adjustment shall not affect
calculations made prior thereto and no adjustment shall be made in respect
thereof.
(17) Sections 2.05(a) and 2.05(b) are hereby amended and replaced in their
entirety with the following:
Section 2.05. Deposit of Additional Securities. (a) Subject to the
requirements set forth below in this Section, the Depositor may, on any Business
Day (the "Trade Date"), subscribe for Additional Units as follows:
(1) Prior to the Evaluation Time defined in Section 5.01 on the Trade Date,
the Depositor shall provide notice (the "Subscription Notice") to the Trustee of
the Depositor's intention to subscribe for Additional Units. The Subscription
Notice shall identify the Additional Securities to be acquired (unless such
Additional Securities are a precise replication of the then existing portfolio)
and shall either (i) specify the quantity of Additional Securities to be
deposited by the Depositor on the settlement date for such subscription or (ii)
instruct the Trustee to purchase Additional Securities with an aggregate cost as
specified in the Subscription Notice.
(2) Promptly following the Evaluation Time on such Business Day, the
Depositor shall verify with the Trustee, the number of Additional Units to be
created.
(3) Not later than the time on the settlement date for such subscription
when the Trustee is to deliver the Additional Units created thereby (which time
shall not be later than the time by which the Trustee is required to settle any
contracts for the purchase of Additional Securities entered into by the Trustee
pursuant to the instruction of the Depositor referred to in subparagraph (1)
above), the Depositor shall deposit with the Trustee (i) any Additional
Securities specified in the Subscription Notice (or contracts to purchase such
Additional Securities together with cash or a letter of credit in the amount
necessary to settle such contracts) or (ii) cash or a letter of credit in the
amount equal to the aggregate cost of the Additional Securities to be purchased
by the Trustee, as specified in the Subscription Notice, together with, in each
case, Cash defined below. "Cash" means, as to the Capital Account, cash or other
property (other than Securities) on hand in the Capital Account or receivable
and to be credited to the Capital Account as of the Evaluation Time on the
Business Day preceding the Trade Date (other than amounts to be distributed
solely to persons other than persons receiving the distribution from the Capital
Account as holders of Additional Units created by the deposit), and, as to the
Income Account, cash or other property (other than Securities) received by the
Trust as of the Evaluation Time on the Business Day preceding the Trade Date or
receivable by the Trust in respect of dividends or other distributions declared
but not received as of the Evaluation Time on the Business Day preceding the
Trade Date, reduced by the amount of any cash or other property received or
receivable on any Security allocable (in accordance with the Trustee's
calculation of the monthly distribution from the Income Account pursuant to
Section 3.05) to a distribution made or to be made in respect of a Record Date
occurring prior to the Trade Date. Each deposit made pursuant to this Section
2.05 shall replicate, to the extent practicable, the portfolio immediately prior
to such deposit.
(4) On the settlement date for a subscription, the Trustee shall, in
exchange for the Securities and cash or Letter of Credit described above, issue
and deliver to or on the order of the Depositor the number of Units verified by
the Depositor with the Trustee. No Unit to be issued pursuant to this paragraph
shall be issued or delivered unless and until Securities, cash or a Letter of
Credit is received in exchange therefor and no person shall have any claim to
any Unit not so issued and delivered or any interest in the Trust in respect
thereof.
(5) Any Additional Securities shall be held, administered and applied by
the Trustee in the same manner as herein provided for the Securities.
(6) The acceptance of Additional Units by the Depositor in accordance with
the provisions of paragraph (a) of this Section shall be deemed a certification
by the Depositor that the deposit or purchase of Additional Securities
associated therewith complies with the conditions of this Section 2.05.
(7) Notwithstanding the preceding, in the event that the Depositor's
Subscription Notice shall instruct the Trustee to purchase Additional Securities
in an amount which, when added to the purchase amount of all other unsettled
contracts entered into by the Trustee, exceeds 25% of the value of the
Securities then held (taking into account the value of contracts to purchase
Securities only to the extent that there has been deposited with the Trustee
cash or an irrevocable letter of credit in an amount sufficient to settle their
purchase), the Depositors shall deposit with the Trustee concurrently with the
Subscription Notice cash or a letter of credit in an amount such that, when
added to 25% of the value of the Securities then held (determined as above) the
aggregate value shall be not less than the purchase amount of the securities to
be purchased pursuant to such Subscription Notice.
(b) Instructions to purchase Additional Securities under this Section shall
be in writing and shall direct the Trustee to purchase, or enter into contracts
to purchase, Additional Securities; such instructions shall also specify the
name, CUSIP number, if any, aggregate amount of each such Additional Security
and price or range of price. If, at the time of a subsequent deposit under this
Section, Securities of an Original Issue are unavailable, cannot be purchased at
reasonable prices or their purchase is prohibited or restricted by applicable
law, regulation or policies, in lieu of the portion of the deposit that would
otherwise be represented by those Securities, the Depositor may (A) deposit (or
instruct the Trustee to purchase) Securities of another Original Issue or (B)
deposit cash or a letter of credit with instructions to acquire the Securities
of such Original Issue when they become available.
(18) Section 4.01(b) is replaced in its entirety by the following:
(b) During the initial offering period such Evaluation shall be made in the
following manner: if the Securities are listed on a national securities exchange
or foreign securities exchange, such Evaluation shall generally be based on the
last available sale price on or immediately prior to the Evaluation Time on the
exchange which is the principal market therefor, which shall be deemed to be the
New York Stock Exchange if the Securities are listed thereon (unless the
Evaluator deems such price inappropriate as a basis for evaluation) or, if there
is no such available sale price on such exchange, at the last available offer
prices of the Securities. Securities not listed on the New York Stock Exchange
but principally traded on the Nasdaq National Market System will be valued at
Nasdaq's official close price. If the Securities are not so listed or, if so
listed, the principal market therefor is other than on such exchange or there is
no such available sale price on such exchange, such Evaluation shall generally
be based on the following methods or any combination thereof whichever the
Evaluator deems appropriate: (i) on the basis of the current offer price for
comparable securities (unless the Evaluator deems such price inappropriate as a
basis for evaluation), (ii) by determining the valuation of the Securities on
the offer side of the market by appraisal or (iii) by any combination of the
above. If the Trust holds Securities denominated in a currency other than U.S.
dollars, the Evaluation of such Security shall be converted to U.S. dollars
based on current offering side exchange rates (unless the Evaluator deems such
prices inappropriate as a basis for valuation). The Evaluator shall add to the
Evaluation of each Security which is traded principally on a foreign securities
exchange the amount of any commissions and relevant taxes associated with the
acquisition of the Security. As used herein, the closing sale price is deemed to
mean the most recent closing sale price on the relevant securities exchange
immediately prior to the Evaluation Time. For each Evaluation, the Evaluator
shall also confirm and furnish to the Trustee and the Depositor, on the basis of
the information furnished to the Evaluator by the Trustee as to the value of all
Trust assets other than Securities, the calculation of the Trust Fund Evaluation
to be computed pursuant to Section 5.01.
(19) Section 4.01(c) is replaced in its entirety by the following:
(c) For purposes of the Trust Fund Evaluations required by Section 5.01 in
determining Redemption Value and Unit Value and for secondary market purchases,
Evaluation of the Securities shall be made in the manner described in 4.01(b),
on the basis of the last available bid prices of the Securities (rather than
offer prices), except in those cases in which the Securities are listed on a
national securities exchange or a foreign securities exchange and the last
available sale prices are utilized. In addition, with respect to each Security
which is traded principally on a foreign securities exchange, the Evaluator
shall (i) not make the addition specified in the fourth sentence of Section
4.01(b) and (ii) shall reduce the Evaluation of each Security by the amount of
any liquidation costs (other than brokerage costs incurred on any national
securities exchange) and any capital gains or other taxes which would be
incurred by the Trust upon the sale of such Security, such taxes being computed
as if the Security were sold on the date of the Evaluation.
(20) Section 9.05 is hereby revised to read as follows:
Section 9.05. Written Notice. Any notice, demand, direction or instruction
to be given to the Depositor, Evaluator or Supervisor hereunder shall be in
writing and shall be duly given if mailed or delivered to the Depositor, 0000
Xxxxxxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, or at such other address as shall
be specified by the Depositor to the other parties hereto in writing.
(21) The second paragraph of Section 6.02 is replaced in its entirety as
follows:
An audit of the accounts of each Trust shall not be conducted unless the
Depositor determines that such an audit is required. In the event that the
Depositor determines that an audit is required, the accounts of each Trust shall
be audited not less than annually by independent public accountants designated
from time to time by the Depositor and reports of such accountants shall be
furnished by the Trustee, upon request, to Unitholders. The Trustee, however, in
connection with any such audits shall not be obligated to use Trust assets to
pay for such audits in excess of the amounts, if any, indicated in the
Prospectus relating to such Trust. The Trustee shall maintain and provide, upon
the request of a Unitholder or the Depositor, the Unitholders' or the
Unitholder's designated representative with the cost basis of the Securities
represented by the Unitholder's Units.
(22) The first paragraph of Section 6.04 is replaced in its entirety as
follows:
Section 6.04. Compensation. Subject to the provisions of Section 3.14
hereof, the Trustee shall receive at the times set forth in Section 3.05, as
compensation for performing ordinary normal recurring services under this
Indenture, an amount calculated at the annual compensation rate stated in the
Prospectus. The Trustee shall charge a pro rated portion of its annual fee at
the times specified in Section 3.05, which pro rated portion shall be calculated
on the basis of the largest number of Units in such Trust at any time during the
primary offering period. After the primary offering period has terminated, the
fee shall accrue daily and be based on the number of Units outstanding on the
first business day of each calendar year in which the fee is calculated or the
number of Units outstanding at the end of the primary offering period, as
appropriate. The Trustee may from time to time adjust its compensation as set
forth above, provided that total adjustment upward does not, at the time of such
adjustment, exceed the percentage of the total increase, after the date hereof,
in consumer prices for services as measured by the United States Department of
Labor Consumer Price Index entitled "All Services Less Rent," or, if such index
shall cease to be published, then as measured by the available index most nearly
comparable to such index. The consent or concurrence of any Unitholder hereunder
shall not be required for any such adjustment or increase, however, the consent
of the Depositor shall be required. Such compensation shall be charged by the
Trustee against the Income and Capital Accounts of each Trust; provided,
however, that such compensation shall be deemed to provide only for the usual,
normal and proper functions undertaken as Trustee pursuant to this Indenture.
(23) Section 2.03 is hereby amended and replaced in its entirety with the
following:
Section 2.03. Issuance of Units. By executing the Reference Trust Agreement
and receipt for deposited Securities, the Trustee will thereby acknowledge
receipt of the deposit of the Securities listed in the Schedules to the
Reference Trust Agreement and referred to in Section 2.01 hereof, and
simultaneously with the receipt of said deposit, has recorded on its books the
ownership, by the Depositor or such other person or persons as may be indicated
by the Depositor, of the aggregate number of Units specified in the Reference
Trust Agreement and has delivered, or on the order of the Depositor will
deliver, in exchange for such Securities, cash or a Letter of Credit,
documentation evidencing the ownership of the number of Units specified or, if
requested by the Depositor, the ownership by DTC of all such Units and will
cause such Units to be credited at DTC to the account of the Depositor or,
pursuant to the Depositor's direction and as hereafter provided, the account of
the issuer of the Letter of Credit referred to in Section 2.01. The number of
Units in a Trust may be increased through a split of the Units or decreased
through a reverse split thereof, as directed by the Depositor, on any day on
which the Depositor is the only Unitholder of such Trust, which revised number
of Units shall be recorded by the Trustee on its books. Effective as of the
Evaluation Time on March 1, 2011, in the event that the aggregate value of
Securities in the Trust has increased since the evaluation on February 28, 2011,
the Trustee shall issue such number of additional Units to the Unitholder of
outstanding Units as of the close of business on March 1, 2011, that the price
per Unit computed as of the Evaluation Time on March 1, 2011, 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 February
28, 2011, 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 1, 2011,
plus the maximum applicable sales charge shall equal approximately $10 per Unit
(based on the number of Units outstanding as of said Evaluation Time, reflecting
cancellation of Units pursuant to this sentence). The Trustee hereby agrees that
on the date of any deposit of additional Securities pursuant to Section 2.05 it
shall acknowledge that the additional Securities identified therein have been
deposited with it by recording on its books the ownership, by the Depositor or
such other person or persons as may be indicated by the Depositor, of the
aggregate number of Units to be issued in respect of such additional Securities
so deposited.
(24) Section 2.01 is hereby amended and replaced in its entirety with the
following:
Section 2.01. Deposit of Securities. The Depositor, on the date of the
Reference Trust Agreement, has deposited with the Trustee in trust the
Securities and contracts (or cash or a Letter of Credit in the amount necessary
to settle any contracts for the purchase of Securities entered into by the
Trustee pursuant to the instructions of the Depositor) for the purchase of
Contract Securities listed in the Schedules to the Reference Trust Agreement in
bearer form or duly endorsed in blank or accompanied by all necessary
instruments of assignment and transfer in proper form or Contract Securities
relating to such Securities to be held, managed and applied by the Trustee as
herein provided. The Depositor shall deliver the Securities listed on said
Schedules which were not actually delivered concurrently with the execution and
delivery of the Reference Trust Agreement and which were represented by Contract
Securities to the Trustee within 10 calendar days after said execution and
delivery (the "Delivery Period"). In the event that the purchase of Contract
Securities pursuant to any contract shall not be consummated in accordance with
said contract or if the Securities represented by Contract Securities are not
delivered to a Trust in accordance with this Section 2.01 and the moneys, or, if
applicable, the moneys drawn on the Letter of Credit, deposited by the Depositor
are not utilized for Section 3.17 purchases of Replacement Securities, such
funds, to the extent of the purchase price of Failed Contract Securities for
which no Replacement Security were acquired pursuant to Section 3.17, plus all
amounts described in the next succeeding sentence, shall be credited to the
Capital Account and distributed pursuant to Section 3.05 to Unitholders of
record as of the Income Account Record Date next following the failure of
consummation of such purchase. The Depositor shall cause to be refunded to each
Unitholder his pro rata portion of the sales charge levied on the sale of Units
to such Unitholder attributable to such Failed Contract Security. Any amounts
remaining from moneys drawn on the Letter of Credit which are not used to
purchase Replacement Securities or are not used to provide refunds to
Unitholders shall be paid to the Depositor. The Trustee is hereby irrevocably
authorized to effect registration or transfer of the Securities in fully
registered form to the name of the Trustee or to the name of its nominee or to
hold the Securities in a clearing agency registered with the Securities and
Exchange Commission or in a book entry system operated by the Federal Reserve
Board.
(25) Section 3.01 is hereby amended by as follows:
Section 3.01. Initial Costs. Subject to reimbursement as hereinafter
provided, the cost of organizing the Trust and sale of the Trust Units shall be
borne by the Depositor, provided, however, that the liability on the part of the
Depositor under this Section shall not include any fees or other expenses
incurred in connection with the administration of the Trust subsequent to the
deposit referred to in Section 2.01. Upon notification from the Depositor that
the primary offering period is concluded, or after six months, at the discretion
of the Depositor, the Trustee shall withdraw from the Account or Accounts
specified in the Prospectus or, if no Account is therein specified, from the
Capital Account as further set forth in Section 3.03, and pay to the Depositor
the Depositor's reimbursable expenses of organizing the Trust and sale of the
Trust Units in an amount certified to the Trustee by the Depositor but not in
excess of the estimated per-Unit amount set forth in the Prospectus multiplied
by the number of Units outstanding as of the conclusion of the primary offering
period. If the cash balance of the Capital Account is insufficient to make such
withdrawal, the Trustee shall, as directed by the Depositor, sell Securities
identified by the Depositor, or distribute to the Depositor Securities having a
value, as determined under Section 4.01 as of the date of distribution,
sufficient for such reimbursement. Securities sold or distributed to the
Depositor to reimburse the Depositor pursuant to this Section shall be sold or
distributed by the Trustee to the extent practicable, in the percentage ratio
then existing (unless the Trust elects to be treated as a "regulated investment
company" as defined in the United States Internal Revenue Code (the "Internal
Revenue Code"), in which case sales or distributions by the Trustee shall be
made in accordance with the instructions of the Depositor or its designees). The
reimbursement provided for in this Section shall be for the account of the
Unitholders of record at the conclusion of the primary offering period. Any
assets deposited with the Trustee in respect of the expenses reimbursable under
this Section shall be held and administered as assets of the Trust for all
purposes hereunder. The Depositor shall deliver to the Trustee any cash
identified in the Statement of Financial Condition of the Trust included in the
Prospectus not later than the First Settlement Date and the Depositor's
obligation to make such delivery shall be secured by the Letter of Credit
deposited pursuant to Section 2.01. Any cash which the Depositor has identified
as to be used for reimbursement of expenses pursuant to this Section shall be
held by the Trustee, without interest, and reserved for such purpose and,
accordingly, prior to the conclusion of the primary offering period, shall not
be subject to distribution or, unless the Depositor otherwise directs, used for
payment of redemptions in excess of the per-Unit amount payable pursuant to the
next sentence. If a Unitholder redeems Units prior to the conclusion of the
primary offering period, the Trustee shall pay to the Unitholder, in addition to
the Redemption Price of the tendered Units, an amount equal to the estimated
per-Unit cost of organizing the Trust and the sale of Trust Units set forth in
the Prospectus multiplied by the number of Units tendered for redemption; to the
extent the cash on hand in the Trust is insufficient for such payment, the
Trustee shall have the power to sell Securities in accordance with Section 5.02.
As used herein, the Depositor's reimbursable expenses of organizing the Trust
and sale of the Trust Units shall include the cost of the initial preparation
and typesetting of the registration statement, prospectuses (including
preliminary prospectuses), the indenture, and other documents relating to the
Trust, Securities and Exchange Commission and state blue sky registration fees,
the cost of the initial valuation of the portfolio and audit of the Trust, the
costs of a portfolio consultant, 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) Section 3.05 is hereby amended by adding the following as subsection
(b)(vi):
(b)(vi) Notwithstanding the foregoing, the Trustee shall not be required to
make a distribution from the Income Account or the Capital Account unless the
aggregate cash available for distribution within the meaning of Treas. Reg.
Section 1.671-5(b)(5) from the Income Account and the Capital Account is equal
to or greater than .1% of the net asset value of the Trust on the related Record
Date, provided, however, that the Trustee shall in any event distribute the
balance of the Income Account and Capital Account on the Distribution Date
occurring in December of each year (including in such distribution income
receivable by the Trust on or prior to the December Distribution Date). This
provision is intended to comply with Treas. Reg. Section 1.671-5(c)(2)(v)(C),
and shall be interpreted consistent therewith and with any successor regulation.
(28) 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.
(29) Notwithstanding anything to the contrary in the Standard Terms and
Conditions of the Trust, Section 3.07 shall be amended to add the following
immediately after Section 3.07(a)(ix):
(x) that as a result of the ownership of a 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 Internal Revenue 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 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.
(30) 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."
(31) Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, the eighth paragraph of Section 5.02 shall be amended to
read in its entirety as follows:
For the purpose of funding the Capital Account for payment of the
Redemption Value with respect to each tender of a Unit or Units for redemption,
the Depositor may direct the Trustee to sell and, in the absence of contrary
direction from the Depositor, the Trustee may sell, the pro rata amount of each
Security allocable to the tendered Units as soon as reasonably practicable
following such tender. In determining such pro rata amount, the Trustee may
apply the calendar month aggregation method provided in Treas. Reg. Section
1.671-5(c)(2)(iv)(G)(3)(i). If the proceeds of such pro rata sales are
insufficient, the Trustee may (i) sell additional Securities as directed by the
Supervisor or, in the absence of direction, sell Securities in amounts which are
reasonably pro rata as determined by the Trustee or (ii) advance funds required
to pay the Redemption Value, provided that the Trustee shall have no obligation
to advance funds if the unreimbursed amount advanced to the Trust for this
purpose then equals at least $15,000. When directed by the Depositor or
determined by the Trustee, but in all events as promptly as reasonably
practicable whenever the unreimbursed amount advanced by the Trustee equals or
exceeds $15,000, the Trustee shall sell additional Securities in the manner
provided in clause (i) of the preceding sentence and shall reimburse itself the
amount of the advance, provided that the Trustee's right to reimbursement shall
not be affected by any delay in sale or reimbursement. The Trustee's right to
reimbursement shall be secured by a lien on the Trust prior to the interest of
the Unitholders. The net proceeds of any sale of Securities representing income
shall be credited to the Income Account and then disbursed therefrom for payment
of expenses and payments to Unitholders as otherwise provided in this Indenture.
The balance of such net proceeds shall be credited to the Capital Account. The
Depositor and the Trustee shall use their reasonable efforts to conduct pro rata
sales of Securities qualifying for exception from tax reporting as described in
Treas. Reg. Section 1.671-5(c)(2)(iv)(G) and, during the final calendar year of
the Trust, qualifying for the exception from tax reporting described in Treas.
Reg. Section 1.671-5(c)(2)(iv)(F). Notwithstanding the foregoing, neither the
Trustee nor the Depositor shall be liable to any person in the event sales
proceeds for any calendar year exceed the general de minimis test of Treas. Reg.
Section 1.671-5(c)(2)(iv)(D)(1) (whether or not due to a failure to sell
Securities pro rata) or otherwise require reporting under Treas. Reg. Section
1.671-5.
(32) Section 6.02 is hereby amended by adding the following paragraph:
With respect to any Trust which is a widely held fixed investment trust as
defined in Treas. Reg. Section 1.671-5(b)(22), the Depositor and the Trustee
agree that the Trust meets the requirements of Treas. Reg. Section
1.671-5(f)(1)(i), and the Trustee is authorized: (i) to report in accordance
with any of the safe harbor methods described in Treas. Reg. Section 1.671-5(f);
(ii) to report sales proceeds, whenever permitted, as provided in Treas. Reg.
Section 1.671-5(f)(1)(iv)(B); (iii) to report proceeds of sales and dispositions
described in Treas. Reg. Section 1.671-5(c)(2)(iv)(D)(4)(ii) as provided in
Treas. Reg. Section 1.671-5(c)(2)(iv)(D)(4)(i); (iv) if so directed by the
Depositor, to use the measuring date, as defined in Treas. Reg. Section
1.671-5(c)(2)(iv)(D)(1), in lieu of the start-up date; and (v) to use any method
permitted by the Treasury for the purpose of determining the net asset value of
the Trust pursuant to Treas. Reg. Section 1.671-5(c)(2)(D)(1), if directed to do
so by the Depositor. For purposes of Treas. Reg. Section
1.671-5(f)(1)(iv)(A)(2), the date of the last deposit under 2.01(b) prior to the
expiration of the initial offering period, as certified to the Trustee by the
Depositor, shall be considered the 'start-up date' of the Trust.
(33) 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.
(34) 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."
(35) All reference to Claymore Securities, Inc. in the Standard Terms and
Conditions of Trust shall be replaced with "Guggenheim Funds Distributors, Inc."
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, INC., DEPOSITOR
By /s/ Xxxxx Xxxxxxxx
----------------------------------------------------
Senior Managing Director,
General Counsel and Secretary
THE BANK OF NEW YORK MELLON, TRUSTEE
By /s/ Xxxxxx Xxxxxxx
------------------------------------------------------
Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
GUGGENHEIM DEFINED PORTFOLIOS, SERIES 764
(Note: Incorporated herein and made a part hereof are the "Trust
Portfolio(s)" as set forth in the Prospectus.)
