EXHIBIT 1.1
GUGGENHEIM DEFINED PORTFOLIOS, SERIES 1765
ADVISORY SERIES: INVESTMENT GRADE CORPORATE 3-7 YEAR TRUST, SERIES 2
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated as of June 27, 2018, between
Guggenheim Funds Distributors, LLC, as Depositor, Evaluator and Supervisor, 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
February 6, 2002" (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 for each separate Trust created under this Series.
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(s) 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. 333-225255) 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 2.05, (b) increase
or decrease in connection with an adjustment to the number of Units pursuant to
Section 2.05, or (c) decrease by the number of Units redeemed pursuant to
Section 5.02.
(3) The term "Record Date" shall mean the dates set forth in the Prospectus
for principal distributions and interest distributions.
(4) The term "Distribution Date" shall mean the dates set forth in the
Prospectus for principal distributions and interest distributions.
(5) The term "Initial Date of Deposit" shall mean the date of this
Reference Trust Agreement as set forth above.
(6) 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 of Financial Condition in the
Prospectus.
(7) Article I is hereby amended to add the following definitions:
"Deferred Sales Charge" shall mean the deferred sales fee as
described in the Prospectus.
(8) The definition of "Supplemental Indenture" is hereby deleted in its
entirety.
(9) The definition of "Unitholder" is hereby amended as follows:
"Unitholder" shall mean the registered holder of any Unit of beneficial
interest, his legal representative and heirs, or the successors of any
corporation, partnership or other legal entity and as such shall be deemed a
beneficiary of the related Trust created by this Indenture to the extent of his
pro rata share thereof.
(10) Section 2.01 is hereby amended and replaced in its entirety as
follows:
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 under the "Trust Portfolio" in the Prospectus 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 in said
Prospectus 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 Bonds, such funds, to
the extent of the purchase price of failed Contract Securities for which no
Replacement Bonds were acquired pursuant to Section 3.17, plus all amounts
described in the next succeeding sentence, shall be credited to the Principal
Account and distributed pursuant to Section 3.06 to Unitholders of record as of
the 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 Bonds 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.
(11) Section 2.03 is hereby amended and replaced in its entirety as
follows:
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 under the "Trust Portfolio" in
the Prospectus and referred to in Section 2.01 hereof, and simultaneously with
the receipt of said deposit, has recorded on its books, for each of the plans of
distribution provided for in the Prospectus, 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 Prospectus 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 the
Depository Trust Company ("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. 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.
Units shall be held solely in uncertificated form evidenced by appropriate
notation in the registration books of the Trustee, and no Unit holder shall be
entitled to the issuance of a Certificate evidencing the Units owned by such
Unit holder. The only permitted registered holders of Units shall be through the
DTC (or its nominee, Cede & Co.); consequently, individuals must hold their
Units through an entity which is a participant in DTC.
(12) Section 2.05(a) is hereby amended and replaced in its entirety as
follows:
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 4.01 on the
Trade Date, the Depositor shall provide notice (the "Subscription Notice")
to the Trustee, by telephone or by written communication, 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 or assign the Additional Units
created thereby, 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 value of the
Additional Securities to be purchased by the Trustee, as specified in the
Subscription Notice, together with, in each case, Cash as defined below.
"Cash" means, as to the Principal Account, cash or other property (other
than Securities) on hand in the Principal Account or receivable and to be
credited to the Principal 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 Principal Account as holders of Additional Units
created by the deposit), and, as to the Interest Account, interest
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 interest
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
interest received or receivable on any Security allocable (in accordance
with the Trustee's calculation of the monthly distribution from the
Interest Account pursuant to Section 3.06) 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 assign in the name of 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.
(13) Section 3.06(b)(ii) is hereby amended as follows:
(ii) (a) For the purposes of this Section 3.06, the "Interest
Distribution" of a Unitholder shall be made on the basis of one-twelfth of
the estimated annual interest income to the Trust for the ensuing twelve
months, after a pro-rated initial payment and after deduction of the
estimated costs and expenses to be incurred on behalf of such Unitholders
during the twelve month period for which such interest income has been
estimated.
(b) In the event the amount on deposit in the Interest Account of
any Trust on a Distribution Date is not sufficient for the payment of the
amount of interest to be distributed monthly on the basis of the aforesaid
computation, the Trustee shall advance out of its own funds and cause to
be deposited in and credited to such Interest Account such amount as may
be required to permit payment of the monthly interest distribution to be
made as described above and shall be entitled to be reimbursed, without
interest, out of interest received by such Trust subsequent to the date of
such advance and subject to the condition that any such reimbursement
shall be made only under conditions which will not reduce the funds in or
available for the Interest Account to an amount less than required for the
next ensuing distribution of interest. The Trustee's fee takes into
account the costs attributable to the outlay of capital needed to make
such advances. To the extent practicable, the Trustee shall allocate the
expenses of each Trust among Units of such Trust, giving effect within any
Trust to differences in administrative and operational cost among those
who have chosen to receive a particular plan of distribution is provided
for in the Prospectus.
(c) Unitholders of any Trust desiring to receive according to a
particular plan of distribution provided for in the Prospectus may elect
at the time of purchase to receive distributions by notice to the Trustee.
Unitholders must furnish written notice to the Trustee indicating their
desire to receive such distributions. The Trustee, within five business
days of receiving such notice, shall issue to the Unitholder a
confirmation indicating such Unitholder's preferred distribution plan.
Such notice shall be effective with respect to subsequent distributions
until changed by further notice to the Trustee. Those wishing to change
their plan of distribution, if multiple distribution plans are provided
for in the Prospectus, must do so by sending written notice at any time to
the Trustee. Changes may be made as soon as reasonably practicable.
(14) Section 3.08(a)(x) is hereby amended as follows:
(x) that as of any Record Date such Bonds 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 distribution from the Principal Account on such next succeeding
monthly Distribution Date at least $1.00 per Unit; or
(15) Section 4.01(b) is hereby amended and replaced in its entirety as
follows:
(b) In making the evaluations the Evaluator may determine the value
of each issue of the Securities in each Trust by the following methods or
any combination thereof which it deems appropriate: (i) on the basis of
current bid or offering prices of such Securities as obtained from
investment dealers or brokers (including the Depositor) who customarily
deal in public bonds comparable to those held by the Trust, or (ii) if bid
or offering prices are not available for any of such Securities, on the
basis of bid or offering prices for comparable Securities, or (iii) by
appraisal. The Evaluator may utilize a securities pricing service to help
determine the value of each issue so long as such service uses a similar
methodology to determine securities prices. Securities prices for primary
market purchases shall be based upon offering prices of said Securities.
Securities prices for redemptions shall be based on bid prices of said
Securities. In addition to the methods of determining the value of the
Securities described above, the Evaluator may make the initial evaluation
of Securities in whole or in part by reference to the Blue List of Current
Municipal Offerings (a daily publication containing the current public
offering prices of public bonds of all grades currently being offered by
dealers and banks).
(16) 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
accrued fees and liabilities, if any, including but not limited to unpaid
deferred sales fees and brokerage costs, in each case as reported by the Trustee
to the Evaluator on or prior to the date of evaluation, and (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. 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."
(17) Section 5.02 is hereby amended in its entirety as follows:
Section 5.02. Redemptions by Trustee; Purchases by Depositor. Any Unit
tendered for redemption by a Unitholder or his duly authorized attorney to the
Trustee at its unit investment trust division office shall be redeemed by the
Trustee no later than the seventh calendar day following the day on which tender
for redemption is made in proper form, provided that if such day of payment is
not a Business Day, then such payment shall be made no later than the first
Business Day prior thereto (herein referred to as the "Settlement Date").
Unitholders must sign the request exactly as their name appears on the records
of the Trustee. If the amount of redemption is $500 or less and the proceeds are
payable to the Unitholders of record at the address of record, no signature
guarantee is necessary for redemptions by individual account owners (including
joint owners). Additional documentation may be requested, and a signature
guarantee is always required, from corporations, executors, administrators,
trustees, guardians and associations. The signatures must be guaranteed by a
participant in the Securities Transfer Agents Medallion Program (STAMP) or such
other signature guarantee program in addition to, or in substitution for, STAMP,
as may be accepted by the Trustee. Subject to (a) the next succeeding paragraph,
(b) payment by such Unitholder of any tax or other governmental charges which
may be imposed thereon, and (c) payments in the form of In Kind Distributions
(as defined below), such redemption is to be made by payment of cash equivalent
to the Unit Value determined on the basis of a Trust Fund Evaluation made in
accordance with Section 5.01 determined by the Trustee as of the Evaluation Time
on the Redemption Date, multiplied by the number of Units tendered for
redemption (herein called the "Redemption Value"), or, if the Unitholder wishes
to redeem a number of Units less than all those so tendered, multiplied by the
number of Units so designated by such Unitholder for redemption. Units received
for redemption by the Trustee on any day after the Evaluation Time will be held
by the Trustee until the next day on which the New York Stock Exchange is open
for trading and will be deemed to have been tendered on such day for redemption
at the Redemption Value computed on that day.
The portion of the Redemption Value which represents income shall be
withdrawn from the Principal Account to the extent available. The balance paid
on any Redemption Value, including income not paid from the Principal Account,
if any, shall be withdrawn from the Principal Account to the extent that funds
are available for such purpose. If such available funds shall be insufficient,
the Trustee shall sell such Securities as have been designated on the current
list for such purpose by the Supervisor (or by the Evaluator), as hereinafter in
this Section 5.02 provided, in amounts as the Trustee in its discretion shall
deem advisable or necessary in order to fund the Principal Account for purposes
of such redemption. Sale of Securities by the Trustee shall be made in such
manner as the Trustee shall determine will bring the best price obtainable for a
Trust, subject to any limitations as to the minimum amount of Securities to be
sold specified in the Reference Trust Agreement. In the event that either (i)
funds are withdrawn from the Principal Account and are applied to the payment of
income upon any redemption of Units or (ii) Securities are sold for the payment
of the Redemption value and any portion of the proceeds of such sale is applied
to the payment of income upon such redemption, then, in either such event, the
Principal Account shall be reimbursed therefor at such time as sufficient funds
may be next available in the Principal Account for such purpose.
The Trustee may in its discretion, and shall when so directed by the
Depositor in writing, suspend the right of redemption for Units of a Trust or
postpone the date of payment of the Redemption Value for more than seven
calendar days following the day on which tender for redemption is made (i) for
any period during which the New York Stock Exchange is closed other than
customary weekend and holiday closings or during which (as determined by the
Securities and Exchange Commission) trading on the New York Stock Exchange is
restricted; (ii) for any period during which an emergency exists as a result of
which disposal of the Securities by the Trustee is not reasonably practicable or
it is not reasonably practicable fairly to determine in accordance herewith the
underlying value of the Securities; or (iii) for such other period as the
Securities and Exchange Commission may by order permit, and shall not be liable
to any person or in any way for any loss or damage which may result from any
such suspension or postponement.
Not later than the close of business on the day of tender of any Unit for
redemption by a Unitholder other than the Depositor, the Trustee shall notify
the Depositor of such tender. The Depositor shall have the right to purchase
such Unit by notifying the Trustee of its election to make such purchase as soon
as practicable thereafter but in no event subsequent to the close of business on
the second succeeding Business Day after the day on which such Unit was tendered
for redemption. Such purchase shall be made by payment by the Depositor to the
Unitholder at the price so bid by making payment therefor to the Unitholder in
an amount not less than the Redemption Value on the day of tender not later than
the day on which the Units would otherwise have been redeemed by the Trustee to
such Unitholder. So long as the Depositor maintains a bid in the secondary
market, the Depositor may repurchase the Units tendered to the Trustee for
redemption by the Depositor but shall be under no obligation to maintain any
bids and may, at any time while so maintaining such bids, cease to do so
immediately at any time or from time to time without notice.
Any Units so purchased by the Depositor may at the option of the Depositor
be tendered to the Trustee for redemption at the unit investment trust office of
the Trustee in the manner provided in the first paragraph of this Section 5.02.
Notwithstanding the foregoing provisions of this Section 5.02, until the
close of business on the second Business Day after the day on which such Unit
was tendered for redemption, the Trustee is hereby irrevocably authorized in its
discretion, in the event that the Depositor does not purchase any Units tendered
to the Trustee for redemption, or in the event that a Unit is being tendered by
the Depositor for redemption, in lieu of redeeming Units, to sell Units in the
over-the-counter market through any broker-dealer of its choice for the account
of the tendering Unitholder at prices which will return to the Unitholder an
amount in cash, net after deducting brokerage commissions, transfer taxes and
other charges, equal to or in excess of the Redemption Value which such
Unitholder would otherwise be entitled to receive on redemption pursuant to this
Section 5.02. The Trustee shall pay to the Unitholder the net proceeds of any
such sale on the day on which such Unitholder would otherwise be entitled to
receive payment of the Redemption Value hereunder.
Notwithstanding anything to the contrary in this Section 5.02, any
Unitholder may, if such Unitholder tenders at least that minimum amount of Units
for redemption specified in the Prospectus, request at the time of tender to
receive from the Trustee in lieu of cash such Unitholder's pro rata share of
each Security then held by such Trust; provided, however, if a Unitholder
tenders for redemption Units having an aggregate value of at least the amount
specified in the Prospectus, if any, the Depositor reserves the right to direct
the Trustee to make an In Kind Distribution rather than make a cash payment.
Such tendering Unitholder will receive his pro rata number of whole shares of
each of the Securities comprising the portfolio of such Trust and cash from the
Principal Account equal to the value of the fractional shares to which such
tendering Unitholder is entitled. Such pro rata share of each Security and the
related cash to which such tendering Unitholder is entitled is referred to
herein as an "In Kind Distribution." An In Kind Distribution will be made by the
Trustee through the distribution of each of the Securities in book-entry form to
the account of the Unitholder's bank or broker-dealer at DTC. If funds in the
Principal Account are insufficient to cover the required cash distribution to
the tendering Unitholder, the Trustee shall sell Securities according to the
criteria discussed herein. The Depositor may terminate the right of Unitholder
to make In-Kind Distributions at any time or from time to time without notice.
The Supervisor shall maintain with the Trustee a current list of Securities
designated to be sold for the purpose of funding the Principal Account for
redemption of Units tendered for redemption and, to the extent necessary, for
payment of expenses under this Indenture. In connection therewith, the Depositor
may specify in the Prospectus and/or the Reference Trust Agreement the minimum
amounts of any Securities to be sold at any one time. If the Supervisor shall
for any reason fail to maintain such a list, the Trustee may in its sole
discretion designate a current list of Securities for such purposes. The net
proceeds of any sale of such Securities representing income shall be credited to
the Principal Account and then disbursed therefrom for payment of expenses and
payments to Unitholders required to be paid under this Indenture. Any balance
remaining after such disbursements shall remain credited to the Principal
Account.
Neither the Depositor nor the Trustee shall be liable or responsible in any
way for depreciation or loss incurred by reason of any sale of Securities made
pursuant to this Section 5.02.
Notwithstanding the foregoing, no In Kind Distribution requests made
pursuant to this 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.
(18) The heading and the first sentence of Section 5.04 are hereby amended
as follows:
Section 5.04. Units Held Through the Depository Trust Company or a
Successor Clearing Agency. No Unit may be registered in the name of any person
other than DTC or its nominee (or such other clearing agency registered as such
pursuant to Section 17A of the Exchange Act of 1934 designated as successor to
DTC by the Depositors, or the Trustee or the nominee thereof) (DTC and any such
successor clearing agency are herein referred to as the "Clearing Agency")
unless the Clearing Agency advises the Trustee that it is no longer willing or
able properly to discharge its responsibilities with respect to the Units and
the Trustee is unable to locate a qualified successor clearing agency, in which
case the Trustee shall notify the Clearing Agency and instruct it to provide the
Trustee with the name and address of all persons who are the beneficial owners
of Units as registered on the books of the Clearing Agency (the "Owners").
(19) The second paragraph of Section 9.02 is hereby amended as follows:
In the event of a termination, the Trustee shall proceed to liquidate the
Securities then held and make the payments and distributions provided for
hereinafter in this Section 9.02 based on such Unitholder's pro rata interest in
the balance of the Principal and Interest Accounts after the deductions herein
provided. Written notice shall be given by the Trustee in connection with any
termination to each Unitholder at his address appearing on the registration
books of the Trustee and in connection with a Mandatory Termination Date such
notice shall be given no later than 30 days before the Mandatory Termination
Date.
(20) Subsection (d) of Section 9.02 is hereby amended as follows:
(d) make final distributions from such Trust, as follows:
(i) to each Unitholder receiving distribution in cash, such holder's
pro rata share of the cash balances of the Interest and Principal
Accounts; and
(ii) on the conditions set forth in Section 3.05 hereof, to all
Unitholders, their pro rata share of the balance of the Reserve Account.
(21) The first sentence of the Introduction is hereby modified as follows:
These Standard Terms and Conditions of Trust, effective February 6, 2002,
shall be applicable to certain Claymore Securities Defined Portfolios
established after the date of effectiveness hereof containing certain debt
obligations, as provided in this paragraph.
(22) The definition of "Bonds" in Article I is hereby modified as follows:
(3) "Bonds" shall mean such of the debt obligations, including "when
issued" and/or "regular way" contracts, if any, for the purchase of
certain bonds, and cash or a certified check or checks and/or an
irrevocable letter or letters of credit in the amount required for such
purchase, deposited in irrevocable trust and listed under the "Trust
Portfolio" in the Prospectus, and any obligations received in exchange,
substitution or replacement for such obligations pursuant to Sections 3.09
and 3.18 hereof, as may from time to time continue to be held as a part of
the Trust to which such Reference Trust Agreement relates.
(23) The first paragraph of Section 3.17 is hereby amended and replaced
with the following:
Section 3.17. Replacement Bonds. In the event that any Bond is not
delivered due to any occurrence, act or event beyond the control of the
Depositor and of the Trustee (such a Bond being herein called a "Special Bond"),
the Depositor may so certify to the Trustee and instruct the Trustee to purchase
Replacement Bonds which have been selected by the Depositor having a cost and an
aggregate principal amount not in excess of the cost and aggregate principal
amount of the Special Bonds not so delivered. To be eligible for inclusion in
the Trust, the Replacement Bonds which the Depositor selects must: (i) for
Trusts containing municipal bonds, yield current interest which is exempt from
taxation for federal income tax purposes and, if the Trust is a State Trust,
exempt from taxation under the personal income tax law of the particular state
involved; (ii) have a fixed maturity or disposition date comparable to the bonds
replaced; (iii) be purchased at a price that results in a yield to maturity and
in a current return, in each case as of the execution and delivery of the
applicable Reference Trust Agreement, which is approximately equivalent to the
yield maturity and current return of the Special Bonds which failed to be
delivered and for which the Replacement Bonds are substituted; (iv) be purchased
within twenty days after delivery of notice of the failed contract to the
Trustee or to the Depositor, whichever occurs first and (v) be of comparable
credit quality to the Special Bond which failed to be delivered. Any Replacement
Bonds received by the Trustee shall be deposited hereunder and shall be subject
to the terms and conditions of this Indenture to the same extent as other Bonds
deposited hereunder. No such deposit of Replacement Bonds shall be made after
the earlier of (i) 90 days after the date of execution and delivery of the
applicable Reference Trust Agreement or (ii) the first Distribution Date to
occur after the date of execution and delivery of the applicable Reference Trust
Agreement.
(24) Article III is hereby amended by adding the following Section 3.19:
Section 3.19. Deferred Sales Charge. If the Reference Trust Agreement
and/or Prospectus related to a Trust specify a Deferred Sales Charge, the
Trustee shall, on the dates specified and as provided in such Prospectus,
withdraw from the Interest Account or Principal Account (as specified in such
Prospectus), an amount per Unit specified in such Prospectus and credit such
amount to a special, non-Trust account maintained by the Trustee out of which
the deferred sales charge will be distributed to the Depositor (the "Deferred
Sales Charge Account"). If the balance in the applicable Account is insufficient
to make such withdrawal, the Trustee shall, as directed by the Depositor, either
advance funds in an amount equal to the proposed withdrawal and be entitled to
reimbursement of such advance upon the deposit of additional moneys in the
applicable Account, and/or sell Securities and credit the proceeds thereof in
kind to the Deferred Sales Charge Account; provided, however, that the Trustee
shall not be required to advance an aggregate amount in excess of $15,000
pursuant to this Section 3.19. Such direction shall, if the Trustee is directed
to sell a Security, identify the Security to be sold or distributed in kind and
include instructions as to the execution of such sale. All advances made by the
Trustee pursuant to this Section shall be secured by a lien on the Trust prior
to the interest of the Unitholders. If the Prospectus provides for a waiver or
refund of any portion of the deferred sales charge under specified circumstances
(such as, for example, in connection with a redemption or sale of Units
following the death or disability of the Unitholder), the Trustee shall deduct
and pay to the Depositor the full amount of the deferred sales charge chargeable
upon the redemption in the absence of such waiver or refund and the Depositor
shall pay to the affected Unitholder the amount of such waiver or refund; the
Trustee shall have no responsibility to the affected Unitholder with respect to
the amount to be so refunded. The Depositor may at any time instruct the Trustee
to distribute to the Depositor cash or Securities previously credited to the
Deferred Sales Charge Account. 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.
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.
(25) 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.
Any notice, demand, direction or instruction to be given to the Trustee
shall be in writing and shall be duly given if delivered to the unit investment
trust division office of the Trustee at 0 Xxxxxx Xxxxx, 00xx Xx., Xxxxxxxx, Xxx
Xxxx 00000, Attention: Unit Trust Division, or to such other address as shall be
specified by the Trustee to the other parties in writing.
(26) 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 costs basis of the Securities
represented by the Unitholder's Units.
(27) Section 3.06 is hereby amended by adding the following 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 7.05.
(28) 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.
(29) Section 9.01 is hereby amended by adding the following 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.
(30) 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, such Trust 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.
(31) Sections 3.08(a)(xii) and 3.08(a)(xiii) are hereby deleted and
replaced as follows:
(viii) that the sale of Bonds is necessary or advisable: (i) in
order to maintain the qualification of the Trust as a regulated
investment company; or (ii) to provide funds to make any
distribution for a taxable year in order to avoid imposition of any
income or excise taxes on undistributed income in the Trust; or
(ix) the Depositor or its designee determines that such sale is
appropriate.
(32) 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."
(33) Section 3.06(a) is deleted in its entirety and replaced with the
following:
Section 3.06. Payments and Distributions. (a) On or immediately after the
fifteenth the day of each month, the Trustee shall satisfy itself as to the
adequacy of the Reserve Account, making any further credits thereto as may
appear appropriate in accordance with Section 3.05 and shall then with respect
to each Trust:
(i) deduct from the Interest Account or, to the extent funds are not
available in such Account, from the Principal Account and pay to
itself individually the amounts that it is at the time entitled to
receive pursuant to Section 6.04 or otherwise pursuant to the
provisions hereof;
(ii) deduct from the Interest Account or, to the extent funds are
not available in such Account, from the Principal Account and pay to
counsel, as hereinafter provided for, an amount equal to unpaid fees
and expenses, if any, of such counsel pursuant to Section 3.10, as
certified to by the Depositor; and
(iii) deduct from the Interest Account or, to the extent funds are
not available in such Account, from the Principal Account, and
reimburse itself for any other fees, charges and expenses arising
from time to time out of the Trust operations that the Trustee has
paid.
(34) The first sentence of Section 3.06(b)(i) is hereby deleted and
replaced with the following:
(b) (i) On each Distribution Date, the Trustee shall distribute an
amount per Unit equal to such Unitholder's Interest Distribution (as
defined below) computed as of the close of business on the Record
Date immediately preceding such Distribution Date to each Unitholder
of record at the close of business on the Record Date. In addition,
if the balance of the Principal Account of a Trust on the fifteenth
day of any month equals at least $1.00 per Unit then outstanding,
such distribution from the Principal Account shall be made on the
twenty-fifth day of such month computed as of the close of business
on the fifteenth day of such month.
(35) All reference to Claymore Securities, Inc. in the Standard Terms and
Conditions of Trust shall be replaced with "Guggenheim Funds Distributors, LLC"
(36) Notwithstanding anything to the contrary in this Indenture, if so
provided in the Prospectus for the Trust, the Depositor shall be paid an annual
deferred sales fee from Unitholders in an amount calculated at the annual
compensation rate stated in the Prospectus. If the Depositor receives an annual
deferred sales fee, the Depositor will not receive the compensation outlined in
Section 7.05; specifically, the Depositor will not receive compensation for
performing portfolio supervisory services as set forth in Section 3.18, or for
performing evaluation services as set forth in Section 4.03. Additionally, the
Depositor will not receive any of the reimbursable costs of organizing the Trust
and the sale of the Trust Units pursuant to Section 3.01, or any of the
reimbursable update costs pursuant to Section 3.02. As provided below, the
Depositor will bear all the organizational costs and expenses of the Trust,
except for brokerage costs and extraordinary expenses.
The annual deferred sales fee shall be charged to Unitholders on the first
day after the primary offering period has concluded for the Trust (i.e., the
first day of the secondary offering period) and on every anniversary of such
date for the life of the Trust (the "Annual Deferred Sales Fee Payment Date").
The annual deferred sales fee shall be deducted from cash held by the Trust or
the Principal Account by selling Securities, as necessary. If such annual
deferred sales fee is charged to Unitholders, Unitholders will not be charged
any other fees or expenses, except for brokerage costs and extraordinary
expenses.
Notwithstanding anything to the contrary in this Indenture, if the
Prospectus for a Trust states that an annual deferred sales fee will be paid by
Unitholders, the Depositor will be responsible for all fees and expenses of the
Trust, except for brokerage costs and extraordinary expenses, and such
responsibility includes the organizational costs of the Trust, the payments to
the Trustee pursuant to Section 6.01 to the extent the costs and expenses are
not extraordinary expenses, the payments to the Trustee pursuant to Section
6.04, and the expenses of the Trust that are detailed in this Indenture. The
payments to the Trustee by the Depositor will be calculated on the Annual
Deferred Sales Fee Payment Date at a rate agreed upon in a written agreement
with the Depositor.
If the Depositor resigns its position or if the Depositor is unable or
unwilling to pay the Trustee as agreed upon in a written agreement, the Trustee
may recover its reasonable costs and expenses from the Trust up to the amount of
the annual deferred sales fee under the terms that govern the payment of the
annual deferred sales fee by Unitholders at the next Annual Deferred Sales Fee
Payment Date.
If this annual deferred sales fee is charged to Unitholders pursuant to the
Prospectus, Section 3.07(A)(4) and Section 3.07(B)(2) are hereby deleted.
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/ Xxxxxx Xxxxxxx
------------------------------
Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
GUGGENHEIM DEFINED PORTFOLIOS, SERIES 1765
(Note: Incorporated herein and made a part hereof is the "Trust
Portfolio(s)" as set forth in the Prospectus.)
