EXHIBIT 1.1
ADVISORS DISCIPLINED TRUST 364
TRUST AGREEMENT
Dated: May 21, 2009
This Trust Agreement among Advisors Asset Management, Inc., 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 Advisor's
Disciplined Trust, Effective for Unit Investment Trusts Investing in Debt
Obligations Established On and After September 17, 2004 (Including Advisor's
Disciplined Trust 15 and Subsequent Series)" (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, Trustee, Evaluator and Supervisor 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
full 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 Schedules hereto have been deposited in
trust under this Trust Agreement.
2. The fractional undivided interest in and ownership of the Trust
represented by each Unit thereof is a fractional amount, the numerator of which
is one and the denominator of which is the amount set forth under "Understanding
Your Investment--Statement of Financial Condition--Number of Units" in the
Prospectus for the Trust.
3. The aggregate number of Units described in Section 2.03(a) for the Trust
is that number of Units set forth under "Understanding Your Investment--
Statement of Financial Condition--Number of Units" in the Prospectus for the
Trust.
4. The term "Deferred Sales Charge Payment Dates" shall mean the dates
specified for deferred sales fee installments under "Investment Summary--Fees
and Expenses" in the Prospectus for the Trust.
5. The term "First Settlement Date" shall mean the third Business Day
following the Initial Date of Deposit.
6. The term "Monthly Distribution Date" shall mean the "Distribution Dates"
set forth under "Investment Summary--Essential Information" in the Prospectus
for the Trust.
7. The term "Monthly Record Date" shall mean the "Record Dates" set forth
under "Investment Summary--Essential Information" in the Prospectus for the
Trust.
8. Section 1.01(1) of the Standard Terms and Conditions of Trust is
replaced in its entirety with the following:
"'Depositor' shall mean Advisors Asset Management, Inc. and its successors
in interest, or any successor depositor appointed as hereinafter provided."
9. Section 1.01(2) of the Standard Terms and Conditions of Trust is
replaced in its entirety with the following:
"'Trustee' shall mean The Bank of New York Mellon and its successors in
interest, or any successor trustee appointed as hereinafter provided."
10. Section 1.01(3) of the Standard Terms and Conditions of Trust is
replaced in its entirety with the following:
"'Evaluator' shall mean Advisors Asset Management Inc., and its successors
in interest, or any successor evaluator appointed as hereinafter provided."
11. Section 1.01(4) of the Standard Terms and Conditions of Trust is
replaced in its entirety with the following:
"'Supervisor' shall mean Advisors Asset Management Inc., and its successors
in interest, or any successor evaluator appointed as hereinafter provided."
12. Section 3.05 of the Standard Terms and Conditions of Trust is amended by
adding the following subsection immediately after Section 3.05(c) of the
Standard Terms and Conditions of Trust:
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"(d) Notwithstanding any of the previous provisions, if a Trust has elected
to be taxed as a regulated investment company under the United States Internal
Revenue Code of 1986, as amended, the Trustee is directed to make any
distribution or take any action necessary in order to maintain the qualification
of the Trust as a regulated investment company for federal income tax purposes
or 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."
13. The last sentence of the sixth paragraph of Section 3.05 of the Standard
Terms and Conditions of Trust is replaced in its entirety with the following:
"The Trustee shall not be required to make a distribution from the
Principal Account unless the cash balance on deposit therein available for
distribution shall be sufficient to distribute at least $1.00 per Unit.
14. Section 3.07(a)(vii) of the Standard Terms and Conditions of Trust is
replaced in its entirety by the following:
"(viii) that as of any Monthly Record Date any of the Securities are
scheduled to be redeemed and paid prior to the next succeeding Monthly
Distribution Date; provided, however, that as the result of such redemption the
Trustee will receive funds in an amount sufficient to enable the Trustee to
include in the next distribution from the Principal Account at least $1.00 per
Unit;"
15. Section 3.07(a)(x) and Section 3.07(b) of the Standard Terms and
Conditions of Trust are replaced in their entirety by the following:
"(x) if the Trust has elected to be taxed as a "regulated investment
company" as defined in the United States Internal Revenue Code of 1986, as
amended, 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.
(b) In the event a Security is sold pursuant to any provisions of this
Section 3.07 as a direct result of serious adverse credit factors affecting the
issuer of such Security and the Trust has elected to be taxed as a "regulated
investment company" as defined in the United States Internal Revenue Code of
1986, as amended, then the Depositor may, but is not obligated, to direct the
reinvestment of the proceeds of the sale of such Security in any other
securities which meet the criteria necessary for inclusion in such Trust on the
Initial Date of Deposit."
16. The paragraph immediately following Section 3.14(a)(3) of the Standard
Terms and Conditions of Trust shall be replaced in its entirety with the
following:
"Notwithstanding anything to the contrary in this Section 3.14, no
substitution of Replacement Securities will be made if such substitution will
adversely affect the federal income tax status of the related Trust."
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17. The Depositor's annual compensation as set forth under Section 3.15
shall be that dollar amount per Unit set forth under "Investment Summary--Fees
and Expenses--Annual operating expenses--Supervisory, evaluation and
administration fees" in the Prospectus for the Trust.
18. The Standard Terms and Conditions of Trust shall be amended to include
the following section:
"Section 3.18. Regulated Investment Company Election. If the Prospectus for
a Trust states that such Trust intends to elect to be treated and to qualify as
a 'regulated investment company' as defined in the United States Internal
Revenue Code of 1986, as amended, the Trustee is hereby directed to make such
elections and take all actions, including any appropriate election to be taxed
as a corporation, as shall be necessary to effect such qualification or to
provide funds to make any distribution for a taxable year in order to avoid
imposition of any income or excise tax on the Trust or on undistributed income
in the Trust. The Trustee shall make such reviews of each Trust portfolio as
shall be necessary to maintain qualification of a particular Trust as regulated
investment company and to avoid imposition of tax on a Trust or undistributed
income in a Trust, and the Depositor and Supervisor shall be authorized to rely
conclusively upon such reviews."
19. The first sentence of Section 6.02 of the Standard Terms and Conditions
of Trust is replaced in its entirety by the following:
"Any Unit tendered for redemption by a Unitholder or his duly authorized
attorney to the Trustee at its unit investment trust division office, currently
at 000 Xxxxxxx Xxxxx Xxxxxxx, Xxxx Xxxxxxxx, XX 00000, whether in the form of a
Certificate or in uncertificated form tendered by means of an appropriate
request for redemption in form approved by the Trustee shall be redeemed by the
Trustee no later than the seventh calendar day following the day on which tender
for redemption is made, provided that if such day of redemption is not a
Business Day, then such Unit shall be redeemed on the first Business Day prior
thereto (being herein called the "Redemption Date")."
20. The Trustee's annual compensation as set forth under Section 7.04 of the
Standard Terms and Conditions of Trust, shall be $0.95 per Unit provided,
however, such fee shall be reduced if and as specified in footnote 1 under
"Investment Summary--Fees and Expenses" in the Prospectus for the Trust.
21. Section 9.01 of the Standard Terms and Conditions of Trust shall be
replaced in its entirety with the following:
"Section 9.01. Amendments. (a) This Indenture may be amended from time to
time by the Depositor and Trustee or their respective successors, without the
consent of any of the Unitholders, (i) to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision contained herein, (ii) to make such other provision in
regard to matters or questions arising hereunder as shall not materially
adversely affect the interests of the Unitholders or (iii) to make such
amendments as may be
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necessary (a) for the Trust to continue to qualify as a regulated investment
company for federal income tax purposes if the Trust has elected to be taxed as
such under the United States Internal Revenue Code of 1986, as amended, or (b)
to prevent the Trust from being deemed an association taxable as a corporation
for federal income tax purposes if the Trust has not elected to be taxed as a
regulated investment company under the United States Internal Revenue Code of
1986, as amended. This Indenture may not be amended, however, without the
consent of all Unitholders then outstanding, so as (1) to permit, except in
accordance with the terms and conditions hereof, the acquisition hereunder of
any Securities other than those specified in the Schedules to the Trust
Agreement or (2) to reduce the aforesaid percentage of Units the holders of
which are required to consent to certain of such amendments. This Indenture may
not be amended so as to reduce the interest in a Trust represented by Units
(whether evidenced by Certificates or held in uncertificated form) without the
consent of all affected Unitholders.
(b) Except for the amendments, changes or modifications as provided in
Section 9.01(a) hereof, neither the parties hereto nor their respective
successors shall consent to any other amendment, change or modification of this
Indenture without the giving of notice and the obtaining of the approval or
consent of Unitholders representing at least 66 2/3% of the Units then
outstanding of the affected Trust. Nothing contained in this Section 9.01(b)
shall permit, or be construed as permitting, a reduction of the aggregate
percentage of Units the holders of which are required to consent to any
amendment, change or modification of this Indenture without the consent of the
Unitholders of all of the Units then outstanding of the affected Trust and 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, (3) adversely affect the tax status of the Trust for federal
income tax purposes or result in the Units being deemed to be sold or exchanged
for federal income tax purposes or (4) unless the Trust has elected to be taxed
as a regulated investment company for federal income tax purposes, result in a
variation of the investment of Unitholders in the Trust.
(c) Unless the Depositor directs that other notice shall be provided, the
Trustee shall include in the annual report provided pursuant to Section 3.06
notification of the substance of such amendment."
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IN WITNESS WHEREOF, the undersigned have caused this Trust Agreement to be
executed; all as of the day, month and year first above written.
ADVISORS ASSET MANAGEMENT, INC.
By /s/ XXXX X. XXXXXXXX
------------------------------
Senior Vice President
CORPORATE ACKNOWLEDGMENT
STATE OF KANSAS }
}ss.
COUNTY OF SEDGWICK }
On the 21st day of May in the year 2009, before me personally came Xxxx X.
Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides in Wichita, Kansas; that he is Senior Vice President, of Advisors Asset
Management, Inc., the corporation described in and which executed the above
instrument; and that he signed his name thereto by authority of the board of
directors of said corporation.
/s/ XXXXXXX X. XXXXX
--------------------------------
Notary Public
(Notarial Seal)
RPL Section 309 - Corporate-no seal
THE BANK OF NEW YORK MELLON
By /s/ XXXX X. XXXXXXX
-----------------------------
Vice President
CORPORATE ACKNOWLEDGMENT
STATE OF NEW YORK }
}ss.
COUNTY OF KINGS }
On the 21st day of May in the year 2009, before me personally came Xxxx X.
Xxxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides in Brooklyn, New York; that he is a Vice President of The Bank of New
York Mellon, the company described in and which executed the above instrument;
and that he signed his name thereto by authority of the board of directors of
said company.
/s/ XXXXXXX X. XXXXX, XX.
--------------------------------
Notary Public
(Notarial Seal)
RPL Section 309 - Corporate-no seal
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SCHEDULE A TO TRUST AGREEMENT
SECURITIES INITIALLY DEPOSITED
IN
ADVISORS DISCIPLINED TRUST 364
Incorporated herein by this reference and made a part hereof
is the schedule set forth under "Portfolio" in the Prospectus for the Trust.
