EXHIBIT 1.1
GUGGENHEIM DEFINED PORTFOLIOS, SERIES 1825
XXXXXXXX & XXXXXXXX PREFERRED PORTFOLIO, SERIES 47
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated as of November 14, 2018, between
Guggenheim Funds Distributors, LLC, as Depositor, and The Bank of New York
Mellon, as Trustee, sets forth certain provisions in full and incorporates other
provisions by reference to the document entitled "Standard Terms and Conditions
of Trust For Series Formed on or Subsequent to December 18, 2001" (herein called
the "Standard Terms and Conditions of Trust"), and such provisions as are set
forth in full and such provisions as are incorporated by reference constitute a
single instrument. All references herein to Articles and Sections are to
Articles and Sections of the Standard Terms and Conditions of Trust.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
PART I.
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II hereof, all the provisions contained
in the Standard Terms and Conditions of Trust are herein incorporated by
reference in their entirety and shall be deemed to be a part of this instrument
as fully and to the same extent as though said provisions had been set forth in
this instrument.
PART II.
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
(1) The securities listed in the Schedule hereto have been deposited in the
Trust(s) under this Reference Trust Agreement as indicated on the attached
Schedule A.
(2) For the purposes of the definition of the term "Unit" in Article I, it
is hereby specified that the fractional undivided interest in and ownership of a
Trust(s) is the amount described in Amendment No. 1 to the Trust's Registration
Statement (Registration No. 333-227558) as filed with the Securities and
Exchange Commission today. The fractional undivided interest may (a) increase by
the number of any additional Units issued pursuant to Section 2.03, (b) increase
or decrease in connection with an adjustment to the number of Units pursuant to
Section 2.03, or (c) decrease by the number of Units redeemed pursuant to
Section 5.02.
(3) The term "Deferred Sales Charge" shall mean the "deferred sales fee" as
described in the Prospectus.
(4) The terms "Income Account Record Date" and "Capital Account Record
Date" shall mean the dates set forth under "Essential Information--Record Dates"
in the Prospectus.
(5) The terms "Income Account Distribution Date" and "Capital Account
Distribution Date" shall mean the dates set forth under "Essential
Information--Distribution Dates" in the Prospectus.
(6) The term "Initial Date of Deposit" shall mean the date of this
Reference Trust Agreement as set forth above.
(7) The definition of "Supplemental Indenture" is hereby deleted in its
entirety.
(8) The definition of "Addendum to the Reference Trust Agreement" is hereby
deleted in its entirety.
(9) The term "Additional Securities" shall mean such Securities which have
been deposited pursuant to Section 2.05 to effect an increase over the number of
Units initially specified in the Reference Trust Agreement.
(10) The number of Units of the Trust(s) referred to in Section 2.03 shall
be equal to the "Number of Units" in the Statement(s) of Financial Condition in
the Prospectus.
(11) Article III is hereby amended by adding the following section:
Section 3.23. Bookkeeping and Administrative Expenses. If so provided in
the Prospectus, as compensation for providing bookkeeping and other
administrative services of a character described in Section 26(a)(2)(C) of the
Investment Company Act of 1940 to the extent such services are in addition to,
and do not duplicate, the services to be provided hereunder by the Trustee or
the Depositor for providing supervisory services, the Depositor shall receive at
the times specified in Section 3.05, against a statement or statements therefor
submitted to the Trustee an aggregate annual fee in an amount which shall not
exceed that amount set forth in the Prospectus, calculated as specified in
Section 3.05. Such compensation may, from time to time, be adjusted provided
that the total adjustment upward does not, at the time of such adjustment,
exceed the percentage of the total increase, during the period from the Trust
Agreement to the date of any such increase, in consumer prices for services as
measured by the United States Department of Labor Consumer Price Index entitled
"All Services Less Rent of Shelter" or similar index as described under Section
3.18. The consent or concurrence of any Unitholder hereunder shall not be
required for any such adjustment or increase. Such compensations shall be paid
by the Trustee, upon receipt of invoice therefor from the Depositor, upon which,
as to the cost incurred by the Depositor of providing services hereunder the
Trustee may rely, and shall be charged against the Income and Capital Accounts
as specified in Section 3.05. The Trustee shall have no liability to any
Unitholder or other person for any payment made in good faith pursuant to this
Section.
If the cash balance in the Income and Capital Accounts shall be
insufficient to provide for amounts payable pursuant to this Section 3.23, the
Trustee shall have the power to sell (1) Securities from the current list of
Securities designated to be sold pursuant to Section 5.02 hereof, or (2) if no
such Securities have been so designated, such Securities as the Trustee may see
fit to sell in its own discretion, and to apply the proceeds of any such sale in
payment of the amounts payable pursuant to this Section 3.23. Any moneys payable
to the Depositor pursuant to this Section 3.23 shall be secured by a prior lien
on the Trust except that no such lien shall be prior to any lien in favor of the
Trustee under the provisions of Section 6.04.
Any moneys payable to the Depositor pursuant to this Section 3.23 shall be
secured by a prior lien on the Trust except that no such lien shall be prior to
any lien in favor of the Trustee under the provisions of Section 6.04.
(12) The phrases "supervisory services," "supervisory portfolio services"
and "portfolio supervisory services" in Sections 3.18 are hereby replaced with
the phrase "portfolio supervisory services and bookkeeping and administrative
expenses."
(13) Section 7.05 is hereby amended and replaced in its entirety with the
following:
Section 7.05. Compensation. The Depositor shall receive at the times set
forth in Sections 3.05, 3.18, 3.23 and 4.03 as compensation for performing
portfolio supervisory services, bookkeeping and administrative expenses and
evaluation services, such amount and for such periods as specified the
Prospectus and/or Reference Trust Agreement. The compensation for providing
portfolio supervisory services, bookkeeping and administrative expenses and
evaluation services shall be made on the basis of the largest number of units
outstanding at any time during the period for which such compensation is being
computed. At no time, however, will the total amount received by the Depositor
for services rendered to all series of Guggenheim Defined Portfolios in any
calendar year exceed the aggregate cost to them of supplying such services in
such year. Such rate may be increased by the Trustee from time to time, without
the consent or approval of any Unitholder, or the Depositor, by amounts not
exceeding the proportionate increase during the period from the date of such
Prospectus and/or Reference Trust Agreement to the date of any such increase, in
consumer prices as published either under the classification "All Services Less
Rent" in the Consumer Price Index published by the United States Department of
Labor or, IF such Index is no longer published, a similar index.
In the event that any amount of the compensation paid to the Depositor
pursuant to Sections 3.05, 3.18 and 3.23 and 4.03 is found to be an improper
charge against a Trust, the Depositor shall reimburse the Trust in such amount.
An improper charge shall be established if a final judgment or order for
reimbursement of the Trust shall be rendered against the Depositor and such
judgment or order shall not be effectively stayed or a final settlement is
established in which the Depositor agrees to reimburse the Trust for amounts
paid to the Depositor pursuant to this Section 7.05.
(14) The first two sentences of Section 3.22 are hereby amended and
replaced with the following:
Section 3.22. Creation and Development Fee. If the Prospectus related to a
Trust specifies a creation and development fee, the Trustee shall, on or
immediately after the end of the initial offering period, withdraw from the
Capital Account, an amount equal to the unpaid creation and development fee as
of such date and credit such amount to a special non-Trust account designated by
the Depositor out of which the creation and development fee will be distributed
to the Depositor (the "Creation and Development Account"). The creation and
development fee is the per unit amount specified in the Prospectus for the
Trust.
(15) Article III is hereby amended by adding the following section:
Section 3.24. License Fees. If so provided in the Prospectus, the Depositor
may enter into a Licensing Agreement (the "Agreement") with a licensor (the
"Licensor") described in the Prospectus in which the Trust(s), as consideration
for the licenses granted by the Licensor for the right to use its trademarks and
trade names, intellectual property rights or for the use of databases and
research owned by the Licensor, will pay a fee set forth in the Agreement to the
applicable Licensor or the Depositor to reimburse the Depositor for payment of
the expenses.
If the Agreement provides for an annual license fee computed in whole or
part by reference to the average daily net asset value of the Trust assets, for
purpose of calculating the accrual of estimated expenses such annual fee shall
accrue at a daily rate and the Trustee is authorized to compute an estimated
license fee payment (i) until the Depositor has informed the Trustee that there
will be no further deposits of additional Securities, by reference to an
estimate of the average daily net asset value of the Trust assets which the
Depositor shall provide the Trustee, (ii) thereafter and during the calendar
quarter in which the last business day of the period described in clause (i)
occurs, by reference to the net asset value of the Trust assets as of such last
business day, and (iii) during each subsequent calendar quarter, by reference to
the net asset value of the Trust assets as of the last business day of the
preceding calendar quarter. The Trustee shall adjust the net asset value (Trust
Fund Evaluation) as of the dates specified in the preceding sentence to account
for any variation between accrual of estimated license fee and the license fee
payable pursuant to the Agreement, but such adjustment shall not affect
calculations made prior thereto and no adjustment shall be made in respect
thereof.
(16) Sections 2.05(a) and 2.05(b) are hereby amended and replaced in their
entirety with the following:
Section 2.05. Deposit of Additional Securities. (a) Subject to the
requirements set forth below in this Section, the Depositor may, on any Business
Day (the "Trade Date"), subscribe for Additional Units as follows:
(1) Prior to the Evaluation Time defined in Section 5.01 on the Trade
Date, the Depositor shall provide notice (the "Subscription Notice")
to the Trustee of the Depositor's intention to subscribe for
Additional Units. The Subscription Notice shall identify the
Additional Securities to be acquired (unless such Additional
Securities are a precise replication of the then existing portfolio)
and shall either (i) specify the quantity of Additional Securities to
be deposited by the Depositor on the settlement date for such
subscription or (ii) instruct the Trustee to purchase Additional
Securities with an aggregate cost as specified in the Subscription
Notice.
(2) Promptly following the Evaluation Time on such Business Day, the
Depositor shall verify with the Trustee, the number of Additional
Units to be created.
(3) Not later than the time on the settlement date for such
subscription when the Trustee is to deliver the Additional Units
created thereby (which time shall not be later than the time by which
the Trustee is required to settle any contracts for the purchase of
Additional Securities entered into by the Trustee pursuant to the
instruction of the Depositor referred to in subparagraph (1) above),
the Depositor shall deposit with the Trustee (i) any Additional
Securities specified in the Subscription Notice (or contracts to
purchase such Additional Securities together with cash or a letter of
credit in the amount necessary to settle such contracts) or (ii) cash
or a letter of credit in the amount equal to the aggregate cost of the
Additional Securities to be purchased by the Trustee, as specified in
the Subscription Notice, together with, in each case, Cash defined
below. "Cash" means, as to the Capital Account, cash or other property
(other than Securities) on hand in the Capital Account or receivable
and to be credited to the Capital Account as of the Evaluation Time on
the Business Day preceding the Trade Date (other than amounts to be
distributed solely to persons other than persons receiving the
distribution from the Capital Account as holders of Additional Units
created by the deposit), and, as to the Income Account, cash or other
property (other than Securities) received by the Trust as of the
Evaluation Time on the Business Day preceding the Trade Date or
receivable by the Trust in respect of dividends or other distributions
declared but not received as of the Evaluation Time on the Business
Day preceding the Trade Date, reduced by the amount of any cash or
other property received or receivable on any Security allocable (in
accordance with the Trustee's calculation of the monthly distribution
from the Income Account pursuant to Section 3.05) to a distribution
made or to be made in respect of a Record Date occurring prior to the
Trade Date. Each deposit made pursuant to this Section 2.05 shall
replicate, to the extent practicable, the portfolio immediately prior
to such deposit.
(4) On the settlement date for a subscription, the Trustee shall, in
exchange for the Securities and cash or Letter of Credit described
above, issue and deliver to or on the order of the Depositor the
number of Units verified by the Depositor with the Trustee. No Unit to
be issued pursuant to this paragraph shall be issued or delivered
unless and until Securities, cash or a Letter of Credit is received in
exchange therefor and no person shall have any claim to any Unit not
so issued and delivered or any interest in the Trust in respect
thereof.
(5) Any Additional Securities shall be held, administered and applied
by the Trustee in the same manner as herein provided for the
Securities.
(6) The acceptance of Additional Units by the Depositor in accordance
with the provisions of paragraph (a) of this Section shall be deemed a
certification by the Depositor that the deposit or purchase of
Additional Securities associated therewith complies with the
conditions of this Section 2.05.
(7) Notwithstanding the preceding, in the event that the Depositor's
Subscription Notice shall instruct the Trustee to purchase Additional
Securities in an amount which, when added to the purchase amount of
all other unsettled contracts entered into by the Trustee, exceeds 25%
of the value of the Securities then held (taking into account the
value of contracts to purchase Securities only to the extent that
there has been deposited with the Trustee cash or an irrevocable
letter of credit in an amount sufficient to settle their purchase),
the Depositors shall deposit with the Trustee concurrently with the
Subscription Notice cash or a letter of credit in an amount such that,
when added to 25% of the value of the Securities then held (determined
as above) the aggregate value shall be not less than the purchase
amount of the securities to be purchased pursuant to such Subscription
Notice.
(b) Instructions to purchase Additional Securities under this Section shall
be in writing and shall direct the Trustee to purchase, or enter into contracts
to purchase, Additional Securities; such instructions shall also specify the
name, CUSIP number, if any, aggregate amount of each such Additional Security
and price or range of price. If, at the time of a subsequent deposit under this
Section, Securities of an Original Issue are unavailable, cannot be purchased at
reasonable prices or their purchase is prohibited or restricted by applicable
law, regulation or policies, in lieu of the portion of the deposit that would
otherwise be represented by those Securities, the Depositor may (A) deposit (or
instruct the Trustee to purchase) Securities of another Original Issue or (B)
deposit cash or a letter of credit with instructions to acquire the Securities
of such Original Issue when they become available.
(17) Section 9.05 is hereby revised to read as follows:
Section 9.05. Written Notice. Any notice, demand, direction or instruction
to be given to the Depositor, Evaluator or Supervisor hereunder shall be in
writing and shall be duly given if mailed or delivered to the Depositor, 000
Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other address as shall
be specified by the Depositor to the other parties hereto in writing.
(18) The second paragraph of Section 6.02 is replaced in its entirety as
follows:
An audit of the accounts of each Trust shall not be conducted unless
the Depositor determines that such an audit is required. In the event
that the Depositor determines that an audit is required, the accounts
of each Trust shall be audited not less than annually by independent
public accountants designated from time to time by the Depositor and
reports of such accountants shall be furnished by the Trustee, upon
request, to Unitholders. The Trustee, however, in connection with any
such audits shall not be obligated to use Trust assets to pay for such
audits in excess of the amounts, if any, indicated in the Prospectus
relating to such Trust. The Trustee shall maintain and provide, upon
the request of a Unitholder or the Depositor, the Unitholders' or the
Unitholder's designated representative with the cost basis of the
Securities represented by the Unitholder's Units.
(19) The first paragraph of Section 6.04 is replaced in its entirety as
follows:
Section 6.04. Compensation. Subject to the provisions of Section 3.14
hereof, the Trustee shall receive at the times set forth in Section 3.05, as
compensation for performing ordinary normal recurring services under this
Indenture, an amount calculated at the annual compensation rate stated in the
Prospectus. The Trustee shall charge a pro rated portion of its annual fee at
the times specified in Section 3.05, which pro rated portion shall be calculated
on the basis of the largest number of Units in such Trust at any time during the
primary offering period. After the primary offering period has terminated, the
fee shall accrue daily and be based on the number of Units outstanding on the
first business day of each calendar year in which the fee is calculated or the
number of Units outstanding at the end of the primary offering period, as
appropriate. The Trustee may from time to time adjust its compensation as set
forth above, provided that total adjustment upward does not, at the time of such
adjustment, exceed the percentage of the total increase, after the date hereof,
in consumer prices for services as measured by the United States Department of
Labor Consumer Price Index entitled "All Services Less Rent," or, if such index
shall cease to be published, then as measured by the available index most nearly
comparable to such index. The consent or concurrence of any Unitholder hereunder
shall not be required for any such adjustment or increase, however, the consent
of the Depositor shall be required. Such compensation shall be charged by the
Trustee against the Income and Capital Accounts of each Trust; provided,
however, that such compensation shall be deemed to provide only for the usual,
normal and proper functions undertaken as Trustee pursuant to this Indenture.
(20) Section 2.03 is hereby amended and replaced in its entirety with the
following:
Section 2.03. Issuance of Units. By executing the Reference Trust Agreement
and receipt for deposited Securities, the Trustee will thereby acknowledge
receipt of the deposit of the Securities listed in the Schedules to the
Reference Trust Agreement and referred to in Section 2.01 hereof, and
simultaneously with the receipt of said deposit, has recorded on its books the
ownership, by the Depositor or such other person or persons as may be indicated
by the Depositor, of the aggregate number of Units specified in the Reference
Trust Agreement and has delivered, or on the order of the Depositor will
deliver, in exchange for such Securities, cash or a Letter of Credit,
documentation evidencing the ownership of the number of Units specified or, if
requested by the Depositor, the ownership by DTC of all such Units and will
cause such Units to be credited at DTC to the account of the Depositor or,
pursuant to the Depositor's direction and as hereafter provided, the account of
the issuer of the Letter of Credit referred to in Section 2.01. The number of
Units in a Trust may be increased through a split of the Units or decreased
through a reverse split thereof, as directed by the Depositor, on any day on
which the Depositor is the only Unitholder of such Trust, which revised number
of Units shall be recorded by the Trustee on its books. Effective as of the
Evaluation Time on November 14, 2018, in the event that the aggregate value of
Securities in the Trust has increased since the evaluation on November 13, 2018,
the Trustee shall issue such number of additional Units to the Unitholder of
outstanding Units as of the close of business on November 14, 2018, that the
price per Unit computed as of the Evaluation Time on November 14, 2018, 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 November 13, 2018, 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 November 14, 2018, plus the maximum applicable sales charge
shall equal approximately $10 per Unit (based on the number of Units outstanding
as of said Evaluation Time, reflecting cancellation of Units pursuant to this
sentence). The Trustee hereby agrees that on the date of any deposit of
additional Securities pursuant to Section 2.05 it shall acknowledge that the
additional Securities identified therein have been deposited with it by
recording on its books the ownership, by the Depositor or such other person or
persons as may be indicated by the Depositor, of the aggregate number of Units
to be issued in respect of such additional Securities so deposited.
(21) Section 2.01 is hereby amended and replaced in its entirety with the
following:
Section 2.01. Deposit of Securities. The Depositor, on the date of the
Reference Trust Agreement, has deposited with the Trustee in trust the
Securities and contracts (or cash or a Letter of Credit in the amount necessary
to settle any contracts for the purchase of Securities entered into by the
Trustee pursuant to the instructions of the Depositor) for the purchase of
Contract Securities listed in the Schedules to the Reference Trust Agreement in
bearer form or duly endorsed in blank or accompanied by all necessary
instruments of assignment and transfer in proper form or Contract Securities
relating to such Securities to be held, managed and applied by the Trustee as
herein provided. The Depositor shall deliver the Securities listed on said
Schedules which were not actually delivered concurrently with the execution and
delivery of the Reference Trust Agreement and which were represented by Contract
Securities to the Trustee within 10 calendar days after said execution and
delivery (the "Delivery Period"). In the event that the purchase of Contract
Securities pursuant to any contract shall not be consummated in accordance with
said contract or if the Securities represented by Contract Securities are not
delivered to a Trust in accordance with this Section 2.01 and the moneys, or, if
applicable, the moneys drawn on the Letter of Credit, deposited by the Depositor
are not utilized for Section 3.17 purchases of Replacement Securities, such
funds, to the extent of the purchase price of Failed Contract Securities for
which no Replacement Security were acquired pursuant to Section 3.17, plus all
amounts described in the next succeeding sentence, shall be credited to the
Capital Account and distributed pursuant to Section 3.05 to Unitholders of
record as of the Income Account Record Date next following the failure of
consummation of such purchase. The Depositor shall cause to be refunded to each
Unitholder his pro rata portion of the sales charge levied on the sale of Units
to such Unitholder attributable to such Failed Contract Security. Any amounts
remaining from moneys drawn on the Letter of Credit which are not used to
purchase Replacement Securities or are not used to provide refunds to
Unitholders shall be paid to the Depositor. The Trustee is hereby irrevocably
authorized to effect registration or transfer of the Securities in fully
registered form to the name of the Trustee or to the name of its nominee or to
hold the Securities in a clearing agency registered with the Securities and
Exchange Commission or in a book entry system operated by the Federal Reserve
Board.
(22) The first two sentences in the first paragraph of Section 3.11 are
hereby deleted and replaced in their entirety with the following:
In the event that an offer by the issuer of any of the Securities or
any other party shall be made to issue new securities, or to exchange
securities, for Trust Securities, the Trustee will, at the direction
of the Depositor, accept or reject such offer or vote for or against
any offer to new or exchanged securities or property in exchange for a
Trust Security. Should any issuance, exchange or substitution be
effected, any securities, cash and/or property received shall be
deposited hereunder and shall be promptly sold, if securities or
property, by the Trustee pursuant to the Depositor's direction, unless
the Depositor advises the Trustee to keep such securities or property.
(23) Section 3.05 is hereby amended by adding the following as subsection
(c):
(c) Notwithstanding the foregoing, if a Trust has elected to be
treated as a "regulated investment company" as defined in the Internal
Revenue Code, the Trustee may make such additional distributions to
Unitholders as shall be determined by the Depositor or such agent as
the Depositor shall designate to be necessary or desirable to maintain
the status of each Trust as a regulated investment company or to avoid
imposition of any income or excise taxes on undistributed income of
the Trust. The Trustee shall be authorized to rely conclusively upon
the direction, and shall have no duty to make any additional
distributions from a Trust in the absence of such direction. The
Trustee shall have no liability for any tax or other liability
incurred by reason of action or inaction resulting from such
direction. The fees of such agent designated by the Depositor shall be
an expense of the Trust reimbursable to the Trustee in accordance with
Section 6.04.
(24) Section 9.01 is hereby amended by adding the following as subsection
(d):
(d) If a Trust has elected to be treated as a "regulated investment
company" as defined in the Internal Revenue Code and notwithstanding
Section 9.01(a), this Indenture may be amended from time to time by
the Depositor and the Trustee without the consent of any of the
Unitholders (1) to cure any ambiguity or to correct or supplement any
provisions contained herein which may be defective or inconsistent
with any other provision contained herein; (2) to change any provision
hereof as may be required by the Securities and Exchange Commission or
any successor governmental agency exercising similar authority; (3) to
make such amendments as may be necessary for each Trust to continue to
qualify as a regulated investment company for federal income tax
purposes; or (4) to make such other provisions in regard to matters or
questions arising hereunder as shall not materially adversely affect
the interest of the Unitholders (as determined in good faith by the
Depositor and the Trustee). This Indenture may also be amended from
time to time by the Depositor and the Trustee (or the performance of
any of the provisions of this Indenture may be waived) with the
consent of holders of Units representing 66-2/3% of the Units at the
time outstanding under the Trust Indenture of the individual Trust or
Trusts affected for the purpose of adding any provisions of this
Indenture or of materially modifying in any manner the rights of the
holders of Units of such Trust or Trusts; provided, however, that in
no event may any amendment be made which would (1) alter the rights to
the Unitholders as against each other, (2) provide the Trustee with
the power to engage in business or investment activities other than as
specifically provided in this Indenture or (3) adversely affect the
characterization of a Trust as a regulated investment company for
federal income tax purposes; provided, further, that the consent of
100% of the Unitholders of any individual Trust is required to amend
this Indenture (1) to reduce the aforesaid percentage of Units the
holders of which are required to consent to certain amendments and (2)
to reduce the interest in such Trust represented by any Units of such
Trust.
Promptly after the execution of any amendment requiring the consent of
the Unitholders or any of any other amendment if directed by the
Depositor, the Trustee shall furnish written notification of the
substance of such amendment to each Unitholder then of record affected
thereby.
It shall not be necessary for the consent of Unitholders under this
Section 9.01 or under Section 9.02 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof
by Unitholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
(25) Section 3.01 is hereby amended by as follows:
Section 3.01. Initial Costs. Subject to reimbursement as hereinafter
provided, the cost of organizing a Trust and sale of the Trust Units shall be
borne by the Depositor, provided, however, that the liability on the part of the
Depositor under this Section shall not include any fees or other expenses
incurred in connection with the administration of the Trust subsequent to the
deposit referred to in Section 2.01. Upon notification from the Depositor that
the primary offering period is concluded, or after six months, at the discretion
of the Depositor, the Trustee shall withdraw from the Account or Accounts
specified in the Prospectus or, if no Account is therein specified, from the
Capital Account as further set forth in Section 3.03, and pay to the Depositor
the Depositor's reimbursable expenses of organizing the Trust and sale of the
Trust Units in an amount certified to the Trustee by the Depositor but not in
excess of the estimated per-Unit amount set forth in the Prospectus multiplied
by the number of Units outstanding as of the conclusion of the primary offering
period. If the cash balance of the Capital Account is insufficient to make such
withdrawal, the Trustee shall, as directed by the Depositor, sell Securities
identified by the Depositor, or distribute to the Depositor Securities having a
value, as determined under Section 4.01 as of the date of distribution,
sufficient for such reimbursement. Securities sold or distributed to the
Depositor to reimburse the Depositor pursuant to this Section shall be sold or
distributed by the Trustee to the extent practicable, in the percentage ratio
then existing (unless the Trust elects to be treated as a "regulated investment
company" as defined in the United States Internal Revenue Code (the "Internal
Revenue Code"), in which case sales or distributions by the Trustee shall be
made in accordance with the instructions of the Depositor or its designees). The
reimbursement provided for in this Section shall be for the account of the
Unitholders of record at the conclusion of the primary offering period. Any
assets deposited with the Trustee in respect of the expenses reimbursable under
this Section shall be held and administered as assets of the Trust for all
purposes hereunder. The Depositor shall deliver to the Trustee any cash
identified in the Statement of Financial Condition of the Trust included in the
Prospectus not later than the First Settlement Date and the Depositor's
obligation to make such delivery shall be secured by the Letter of Credit
deposited pursuant to Section 2.01. Any cash which the Depositor has identified
as to be used for reimbursement of expenses pursuant to this Section shall be
held by the Trustee, without interest, and reserved for such purpose and,
accordingly, prior to the conclusion of the primary offering period, shall not
be subject to distribution or, unless the Depositor otherwise directs, used for
payment of redemptions in excess of the per-Unit amount payable pursuant to the
next sentence. If a Unitholder redeems Units prior to the conclusion of the
primary offering period, the Trustee shall pay to the Unitholder, in addition to
the Redemption Price of the tendered Units, an amount equal to the estimated
per-Unit cost of organizing the Trust and the sale of Trust Units set forth in
the Prospectus multiplied by the number of Units tendered for redemption; to the
extent the cash on hand in the Trust is insufficient for such payment, the
Trustee shall have the power to sell Securities in accordance with Section 5.02.
As used herein, the Depositor's reimbursable expenses of organizing the Trust
and sale of the Trust Units shall include the cost of the initial preparation
and typesetting of the registration statement, prospectuses (including
preliminary prospectuses), the indenture, and other documents relating to the
Trust, Securities and Exchange Commission and state blue sky registration fees,
the cost of the initial valuation of the portfolio and audit of the Trust, the
costs of a portfolio consultant, if any, the initial fees and expenses of the
Trustee, and legal and other out-of-pocket expenses related thereto but not
including the expenses incurred in the printing of preliminary prospectuses and
prospectuses, expenses incurred in the preparation and printing of brochures and
other advertising materials and any other selling expenses.
(26) Section 9.01(a)(iii) is hereby amended as follows:
(a)(iii) to make such other provision regarding matters or questions
arising hereunder as shall not materially adversely affect the interests of the
Unitholders; provided, however, that in no event may any amendment be made which
would adversely affect the status of a Trust for federal income tax purposes.
(27) Notwithstanding the foregoing, no In Kind Distribution requests made
pursuant to Section 5.02 and submitted during the 30 business days prior to the
Trust's Mandatory Termination Date will be honored. In addition, no unitholder
will be eligible for an In Kind Distribution of securities pursuant to Section
9.02. Furthermore, the availability of In Kind Distributions may be modified or
discontinued as described in the Prospectus.
(28) Section 3.15 is hereby deleted and replaced in its entirety with the
following:
Section 3.15. Regulated Investment Company Election. If so provided in the
Prospectus for a Trust Fund, such Trust Fund elects to be treated and to qualify
as a "regulated investment company" as defined in the Internal Revenue Code, and
the Trustee is hereby directed to make such elections, including any appropriate
election to be taxed as a corporation, as shall be necessary to effect such
qualification. In addition, the Trustee is authorized to take any actions
necessary to allow a Trust Fund to qualify as a regulated investment company.
(29) All references to The Bank of New York in the Standard Terms and
Conditions of the Trust shall be replaced with "The Bank of New York Mellon."
(30) Notwithstanding anything to the contrary in the Standard Terms and
Conditions of the Trust, Section 3.19 is hereby amended by adding the following
paragraph:
In limited circumstances and only if deemed in the best interests of
the Unitholders, the Depositor is authorized to instruct the Trustee
to change the dates on which the deferred sales charge is deducted as
described in the Prospectus. The deferred sales charge payment dates
may be delayed: (i) in order for a Trust which is a widely held fixed
investment trust as defined in Treas. Reg. Section 1.671-5(b)(22) to
report in accordance with any of the safe harbor methods described in
Treas. Reg. Section 1.671-5(f); or (ii) in order for a Trust which is
a regulated investment company as defined by the Internal Revenue Code
to maintain its qualification as a regulated investment company. The
Trustee shall have no liability for any tax or other liability
incurred by reason of action or inaction resulting from such
direction. The Depositor will amend the Prospectus to include the new
dates on which the deferred sales charge will be collected and
distributing such notice to Unitholders.
(31) Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, Section 3.19 shall be amended by adding the following
sentences at the end thereof:
"To the extent permitted by applicable law and regulatory
authorization, unpaid portions of the deferred sales charge shall be
secured by a lien on the Trust in favor of the Depositor, provided
that such lien shall be subordinate to the lien of the Trustee granted
by Section 6.04 of the Standard Terms and Conditions of Trust. To the
extent of such lien, the Trustee shall hold the assets of the Trust
for the benefit of the Depositor, provided that the Trustee is
authorized to make dispositions, distributions and payments for
expenses in the ordinary course of the administration of the Trust
without regard to such lien."
(32) All reference to Claymore Securities, Inc. in the Standard Terms and
Conditions of Trust shall be replaced with "Guggenheim Funds Distributors, LLC"
(33) Notwithstanding anything to the contrary in the Standard Terms and
Conditions of the Trust, the first paragraph of Section 9.02 is hereby amended
and restated to read as follows:
This Indenture and each Trust created hereby shall terminate upon the
maturity, redemption, sale or other disposition as the case may be of
the last Security held in such Trust hereunder unless sooner
terminated as hereinbefore specified, and may be terminated (i) at any
time by the written consent of Unitholders representing at least
66-2/3% of the Units then outstanding or (ii) if stated in the
Prospectus, if the per unit net asset value reaches or exceeds 15%
above its initial net asset value as calculated on the date of
deposit, net of the upfront sales charge and other related investment
expenses; provided that in no event shall any Trust continue beyond
the Mandatory Termination Date. If the value of a Trust shall be less
than the applicable minimum value stated in the prospectus (generally
20% of the total value of securities deposited in the Trust during the
initial offering period), the Trustee may in its discretion, and
shall, when so directed by the Depositor, terminate the Trust. Upon
the date of termination the registration books of the Trustee shall be
closed.
(34) Section 3.05(b)(ii) is hereby amended and replaced in its entirety
with the following:
For the purposes of this Section 3.05, the term "Income Distribution"
shall be calculated as set forth in subparagraph (A), below, unless
the Prospectus provides for the averaging of income distributions, in
which case, "Income Distribution" shall be shall be calculated as set
forth in subparagraph (B), below. Accordingly, the Unitholder's
"Income Distribution" shall be equal to:
(A) such Unitholder's pro rata share of the cash balance (other than
any amortized discount) in the Income Account computed as of the close
of business on the Income Account Record Date immediately preceding
such Income Distribution after deduction of (1) the fees and expenses
then deductible pursuant to Section 3.05(a) and (2) the Trustee's
estimate of other expenses properly chargeable to the Income Account
pursuant to the Indenture which have accrued, as of such Income
Account Record Date or are otherwise properly attributable to the
period to which such Income Distribution relates; or
(B) such Unitholder's pro rata share of the balance in the Income
Account calculated on the basis of a fraction (the numerator of which
is one and the denominator of which is the total number of
Distribution Dates per year) of the estimated annual income to the
Trust for the ensuing twelve months computed as of the close of
business on the Record Date immediately preceding such Income
Distribution after deduction of (1) the fees and expenses then
deductible pursuant to Section 3.05(a) and (2) the Trustee's estimate
of other expenses properly chargeable to the Income Account pursuant
to the Indenture which have accrued, as of such Record Date or are
otherwise properly attributable to the period to which such Income
Distribution relates.
In the event that the amount on deposit in the Income Account is not
sufficient for the payment of the amount intended to be distributed to
Unitholders on the basis of the aforesaid computation in paragraph
(B), the Trustee is authorized to advance its own funds and cause to
be deposited in and credited to the Income Account such amounts as may
be required to permit payment of the related distribution to be made
as aforesaid and shall be entitled to be reimbursed, without interest,
out of income payments received by the Trust subsequent to the date of
such advance. Any such advance shall be reflected in the Income
Account until repaid.
(35) The definitions of "Contract Securities," "Equity Securities" and
"Securities" in Section 1.01 are hereby amended and replaced in their entirety
with the following:
"Contract Securities" shall mean Securities which are not actually
delivered concurrently with the execution and delivery of the
Reference Trust Agreement and which are to be acquired by a Trust
pursuant to contracts, including (i) Securities listed in Schedule A
to the Reference Trust Agreement and (ii) Securities which the
Depositor has contracted to purchase for the Trust pursuant to Section
2.01.
"Equity Securities" shall mean any equity securities of corporations
or other entities (including such securities held in American
Depositary Receipt ("ADRs") or similar form) including delivery
statements related to contracts, if any, for the purchase of certain
securities and cash, certified or bank check or checks or letter of
credit or letters of credit sufficient in amount or availability
required for such purchase, deposited in irrevocable trust and listed
on Schedule A of the Reference Trust Agreement, and any securities
received in addition to, or in exchange, substitution or replacement
for, such securities pursuant to Sections 2.01, 3.10 and 3.17 hereof,
as may from time to time continue to be held as a part of the Trust."
"Securities" shall mean the securities of corporations or other
entities, including Contract Securities, Fixed Income Securities and
Equities Securities, deposited in irrevocable trust and listed in the
Schedules to the Reference Trust Agreement or which are deposited in
or purchased on behalf of a Trust pursuant to Section 2.05 or as
otherwise permitted hereby, and any securities received in exchange,
substitution or replacement for such securities, as may from time to
time continue to be held as a part of the Trusts.
(36) Section 1.01 is hereby amended by adding the following definition of
"Fixed Income Securities":
"Fixed Income Securities" shall mean debt obligations, including
delivery statements relating to "when issued" and/or "regular way"
contracts, if any, for the purchase of certain fixed income securities
and cash, certified or bank checks or checks or letter of credit or
letters of credit sufficient in amount or availability required for
such purchase, deposited in irrevocable trust and listed in Schedule A
of the Reference Trust Agreement, and any obligations received in
addition to, or in exchange, substitution or replacement for, such
obligations pursuant to Sections 2.01, 3.10, 3.17 and 3.21 hereof, as
may from time to time continue to be held as part of the Trust.
(37) The first paragraph of Section 3.02 is hereby amended and replaced in
its entirety with the following:
Income Account. The Trustee shall collect the dividends, interest or
other like cash distributions on the Securities in each Trust as such
becomes payable (including all moneys representing penalties for the
failure to make timely payments on the Securities, or as liquidated
damages for default or breach of any condition or term of the
Securities or of the underlying instrument relating to any Securities
and other income attributable to a Failed Contract Security for which
no Replacement Security has been obtained pursuant to Section 3.17
hereof and interest accrued but unpaid prior to the date of deposit of
the Securities, if applicable, in Trust and including that part of the
proceeds of the sale, liquidation, redemption, prepayment or maturity
of any Fixed Income Securities or insurance payments thereon which
represent interest thereon, if applicable) and credit such income to a
separate account for each Trust to be known as the "Income Account."
(38) Section 3.06(A)(1) is hereby amended and replaced in its entirety with
the following:
(1) The amount of income received on the Securities (including income
received as a portion of the proceeds of any disposition of
Securities) and accreted original discount on the Fixed Income
Securities;
(39) Section 3.07 is hereby amended and replaced in its entirety with the
following:
Section 3.07. Sale of Securities. (a) If necessary, in order to
maintain the sound investment character of a Trust, the Depositor may
direct the Trustee to sell, liquidate or otherwise dispose of
Securities in such Trust at such price and time and in such manner as
shall be determined by the Depositor, provided that the Supervisor has
determined, if appropriate, that any one or more of the following
conditions exist with respect to such Securities:
(i) That there has been a default on any of the Securities in the
payment of principal, interest or dividends, after declared and when
due and payable;
(ii) That any action or proceeding has been instituted at law or
equity seeking to restrain or enjoin the payment of dividends on
Equity Securities, or that there exists any legal question or
impediment affecting such Equity Securities or the payment of
dividends from the same;
(iii) That there has occurred any breach of covenant or warranty
in any document relating to the issuer of the Securities which would
adversely affect either immediately or contingently the payment of
dividends from the Equity Securities or the debt service on the Fixed
Income Securities, or the general credit standing of the issuer or
otherwise impair the sound investment character of such Securities;
(iv) That there has been a default in the payment of dividends,
interest, principal of or income or premium, if any, on any other
outstanding obligations of the issuer or guarantor of such Securities;
(v) That the price of any Security has declined to such an extent
or other such credit factors exist so that in the opinion of the
Supervisor, as evidenced in writing to the Trustee, the retention of
such Securities would be detrimental to the Trust and to the interest
of the Unitholders;
(vi) That all of the Securities in the Trust will be sold
pursuant to termination of the Trust pursuant to Section 9.02 hereof;
(vii) That such sale is required due to Units tendered for
redemption;
(viii) That there has been a public tender offer made for a
Security or a merger or acquisition is announced affecting a Security,
and that in the opinion of the Supervisor the sale or tender of the
Security is in the best interest of the Unitholders;
(ix) That such sale is necessary or advisable (A) to maintain the
qualification of the Trust as a regulated investment company or (B) to
provide funds to make any distribution for a taxable year in order to
avoid imposition of any income or excise taxes on the Trust or on
undistributed income in the Trust;
(x) That as result of the ownership of the Security, the Trust or
its Unitholders would be a direct or indirect shareholder of a passive
foreign investment company as defined in section 1297(a) of the Code;
(xi) That such sale is desirable because a Security is determined
to be taxed as a partnership for U.S. Federal tax purposes;
(xii) That the Supervisor or its designee determines that such
sale is appropriate;
(xiii) That any action or proceeding has been instituted at law
or equity seeking to restrain or enjoin the payment of principal or
interest, or both, on any Fixed Income Security, attacking the
constitutionality of any enabling legislation or alleging and seeking
to have judicially determined the illegality of the issuing body or
the constitution of its governing body or officers, the illegality,
irregularity or omission of any necessary acts or proceedings
preliminary to the issuance of such Fixed Income Securities, or
seeking to restrain or enjoin the performance by the officers or
employees of any such issuing body of any improper or illegal act in
connection with the administration of funds necessary for debt service
on such Fixed Income Securities or otherwise; or that there exists any
other legal question or impediment affecting such Fixed Income
Securities or the payment of debt service on the same;
(xiv) That Fixed Income Securities are the subject of an advanced
refunding. For the purposes of this Section 3.07(a)(xiv), "an advanced
refunding" shall mean when refunding Fixed Income Securities are
issued and the proceeds thereof are deposited in an irrevocable trust
to retire the Fixed Income Securities on or before their redemption
date;
(xv) If the Trust holds Fixed Income Securities, that as of any
Record Date such Securities are scheduled to be redeemed and paid
prior to the next succeeding monthly Distribution Date; provided,
however, that as the result of such sale the Trustee will receive
funds in an amount sufficient to enable the Trustee to include in the
next distribution from the Capital Account on such next succeeding
monthly Distribution Date at least $1.00 per 100 Units; or
(xvi) That such sale is necessary for the Trust to comply with
such federal and/or state securities laws, regulations and/or
regulatory actions and interpretations which may be in effect from
time to time.
(b) Upon receipt of a direction from the Depositor to dispose of
Securities as described in this Section 3.07, upon which the Trustee
shall rely, the Trustee shall proceed to sell or liquidate the
specified Securities in accordance with such direction, and upon the
receipt of the proceeds of any such sale or liquidation, after
deducting therefrom any fees and expenses of the Trustee connected
with such sale or liquidation and any brokerage charges, taxes or
other governmental charges shall deposit such net proceeds in the
applicable Capital Account; provided, however, that the Trustee shall
not liquidate or sell any Securities upon a direction from the
Depositor pursuant to Section 3.07(a)(xv), unless the Trustee shall
receive on account of such sale or liquidation the full principal
amount of such Securities, plus the premium, if any, and the interest
accrued and to accrue thereon to the date of the redemption of such
Securities.
(c) The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any sale made pursuant to
any such direction or by reason of the failure of the Depositor to
give any such direction, and in the absence of such direction the
Trustee shall have no duty to sell or liquidate any Securities under
this Section 3.07.
(40) The first sentence of Section 3.12 is hereby amended and replaced in
its entirety with the following:
If at any time a dividend (once due and payable) on any of the Equity
Securities shall not have been paid or the principal or interest on
any of the Fixed Income Securities shall be in default and not paid or
provisions for payment thereof shall not have been duly made, within
30 days be in default, the Trustee shall notify the Depositor thereof.
(41) Article III is hereby amended by adding the following two sections:
Section 3.25. Trustee Not Required to Amortize. Nothing in this
Indenture, or otherwise, shall be construed to require the Trustee to
make any adjustments between the Income and Capital Accounts of any
Trust by reason of any premium or discount in respect of any of the
Fixed Income Securities.
Section 3.21. Refunding Securities. In the event that an offer shall
be made by an obligor of any of the Fixed Income Securities in a Trust
to issue new obligations in exchange and substitution for any issue of
Fixed Income Securities pursuant to a plan for the refunding or
refinancing of such Fixed Income Securities, the Depositor shall
instruct the Trustee in writing to reject such offer and either to
hold or sell such Fixed Income Securities, except that if (A) the
issuer is in default with respect to such Fixed Income Securities or
(B) in the opinion of the Depositor, given in writing to the Trustee,
the issuer will probably default with respect to such Fixed Income
Securities in the reasonably foreseeable future, the Depositor shall
instruct the Trustee in writing to accept or reject such offer or take
any other action with respect thereto as the Depositor may deem
proper. Any obligation so received in exchange shall be deposited
hereunder and shall be subject to the terms and conditions of this
Indenture to the same extent as the Fixed Income Securities originally
deposited hereunder. Within five days after such deposit, notice of
such exchange and deposit shall be given by the Trustee to each
Unitholder of such Trust, including an identification of the Fixed
Income Securities eliminated and the securities substituted therefor.
(42) Sections 4.01(b) and 4.01(c) are hereby amended and replaced in their
entirety with the following:
(b) During the initial offering period of a Trust (as determined by
the Depositor) such Evaluation shall be made in the following manner:
(i) with respect to Securities for which market quotations are readily
available, such Evaluation shall be made on the basis of the current
market value of such Securities; and (ii) with respect to other
Securities' such Evaluation shall be made on the basis of the fair
value of such Securities as determined in good faith by the Evaluator.
If the Securities are listed on a national or foreign securities
exchange and market quotations of such Securities are not readily
available, the market value of such Securities shall generally be
based on the last available closing sale price on or immediately prior
to the Evaluation Time on the exchange which is the principal market
therefor, which shall be deemed to be the New York Stock Exchange if
the Securities are listed thereon (unless the Evaluator deems such
price inappropriate as a basis for evaluation) or, if there is no such
available closing sale price on such exchange or market at the last
available offer prices of the Securities. Securities not listed on the
New York Stock Exchange but principally traded on the Nasdaq National
Market System will be valued at Nasdaq's official close price. If the
Securities are not so listed or, if so listed and the principal market
therefor is other than on such exchange, or if there is no such
available sale price on such exchange or if the Evaluator determines
that such price is inappropriate as a basis for evaluation, such
Evaluation shall generally be based on the following methods or any
combination thereof whichever the Evaluator deems appropriate: (i) in
the case of Equity Securities, on the basis of the current offer price
for comparable securities on the over-the-counter market (unless the
Evaluator deems such price inappropriate as a basis for evaluation),
(ii) on the basis of current offering prices for the Fixed Income
Securities as obtained from investment dealers or brokers who
customarily deal in securities comparable to those held by the Trust;
(iii) if current ask or offering prices are not available for the
Securities, on the basis of current ask or offering prices for
comparable securities, (iv) by determining the valuation of Securities
on the ask or offering side of the market by appraisal, (v) by
utilizing a securities pricing service to help determine the value of
each issue so long as the service uses a similar methodology to
determine securities prices; or (vi) by any combination of the above.
With respect to shares issued by investment companies registered under
the Investment Company Act of 1940 that are not listed on a national
or foreign securities exchange, such valuations shall be made on the
basis of the current net asset value of such shares as determined by
the issuers of such shares. If the Trust holds Securities denominated
in a currency other than U.S. dollars, the Evaluation of such Security
shall be converted to U.S. dollars based on current offering side
exchange rates (unless the Evaluator deems such prices inappropriate
as a basis for valuation). The Evaluator shall add to the Evaluation
of such Security which is traded principally on a foreign securities
exchange the amount of any commissions and relevant taxes associated
with the acquisition of the Security. As used herein, the closing sale
price is deemed to mean the most recent closing sale price on the
relevant securities exchange at or immediately prior to the Evaluation
Time. For each Evaluation, the Trustee shall also confirm and furnish
to the Depositor the calculation of the Trust Fund Evaluation to be
computed pursuant to Section 5.01
(c) After the initial offering period of Units of a Trust (as
determined by the Depositor), Evaluation of the Securities shall be
made in the manner described in Section 4.01(b), on the basis of the
bid side value of the relevant currency exchange rate expressed in
U.S. dollars and, except in those cases in which the Securities are
listed on a national or foreign securities exchange and the last
available sale prices are utilized, on the basis of the last available
bid price of the Securities. In addition, the Evaluator may reduce the
Evaluation of each Security which is principally traded outside of the
United States by the amount of any liquidation costs (other than
brokerage costs incurred on any national securities exchange) and any
capital gains or other taxes which would be incurred by the Trust upon
the sale of such Security, such taxes being computed as if the
Security were sold on the date of the Evaluation.
(43) The first paragraph of Section 5.01 is hereby amended and replaced in
its entirety with the following:
Section 5.01. Trust Evaluation. As of the Evaluation Time (a) on the
last Business Day of each year, (b) on the day on which any Unit is
tendered for redemption and (c) on any other day desired by the
Trustee or requested by the Depositor, the Trustee shall: add (i) all
moneys on deposit in a Trust or moneys in the process of being
collected from matured interest coupons or bonds matured or called for
redemption prior to maturity (excluding (A) cash, cash equivalents or
Letters of Credit deposited pursuant to Section 2.01 hereof for the
purchase of Contract Securities, unless such cash or Letters of Credit
have been deposited in the Income and Capital Accounts because of
failure to apply such moneys to the purchase of Contract Securities
pursuant to the provisions of Sections 2.01, 3.02 and 3.03 hereof and
(B) moneys credited to the Reserve Account pursuant to Section 3.04
hereof), plus (ii) the aggregate Evaluation of all Securities
(including Contract Securities and additional Securities for which
purchase contracts have been entered into pursuant to the Depositor's
instructions pursuant to Section 2.05, less the purchase price of such
contracts) on deposit in such Trust (such Evaluation to be made on the
basis of the aggregate underlying value of the Securities as
determined in Section 4.01(b) for the purpose of computing redemption
value of Units as set forth in Section 5.02 hereof), plus (iii) all
other income from the Securities (including dividends receivable on
the Equity Securities trading ex-dividend as of the date of such
valuation and including interest accrued on the Fixed Income
Securities not subject to collection and distribution) as of the
Evaluation Time on the date of such Evaluation together with all other
assets of such Trust. For each such computation there shall be
deducted from the sum of the above (i) amounts representing any
applicable taxes or charges payable out of the respective Trust and
for which no deductions shall have previously been made for the
purpose of addition to the Reserve Account, (ii) amounts representing
estimated accrued expenses of such Trust including but not limited to
unpaid fees and expenses of the Trustee, the Evaluator, the
Supervisor, the Depositor and counsel, in each case as reported by the
Trustee to the Depositor on or prior to the date of computation, (iii)
amounts representing unpaid organization costs, (iv) if the Prospectus
for a Trust provides that the creation and development fee, if any,
accrues on a daily basis, amounts representing unpaid accrued creation
and development fees, (v) if the Prospectus for a Trust provides that
the deferred sales charge, if any, accrues on a daily basis, amounts
representing unpaid accrued deferred sales charge, and (vi) any moneys
identified by the Trustee, as of the date of such computation, as held
for distribution to Unitholders of record as of an Income or Capital
Account Record Date, or for payment of the Redemption Value of Units
tendered, prior to such date. The resulting figure is herein called a
"Trust Fund Evaluation." The value of the pro rata share of each Unit
of the respective Trust determined on the basis of any such evaluation
shall be referred to herein as the "Unit Value." Amounts receivable by
the Trust in foreign currency shall be reported to the Evaluator who
shall convert the same to U.S. dollars based on current exchange
rates, in the same manner as provided in Section 4.01(b) or 4.01(c),
as applicable, for the conversion of the valuation of foreign
Securities, and the Evaluator shall report such conversion with each
Evaluation made pursuant to Section 4.01.
This Reference Trust Agreement shall be deemed effective when executed and
delivered by the Sponsor and the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Reference Trust
Agreement to be duly executed.
GUGGENHEIM FUNDS DISTRIBUTORS, LLC, DEPOSITOR
By /s/ Xxx Xxx
--------------
Vice President and Secretary
THE BANK OF NEW YORK MELLON, TRUSTEE
By /s/ Xxxxxx Xxxxxxx
---------------------
Vice President
SCHEDULE A
SECURITIES INITIALLY DEPOSITED
GUGGENHEIM DEFINED PORTFOLIOS, SERIES 1825
(Note: Incorporated herein and made a part hereof are the "Trust
Portfolio(s)" as set forth in the Prospectus.)
