EXHIBIT 1.1
ADVISORS DISCIPLINED TRUST 289
TRUST AGREEMENT
Dated: October 1, 2008
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 Advisors
Disciplined Trust, Effective for Unit Investment Trusts Investing in Equity
Securities Established On and After August 5, 2004 (Including Advisor's
Disciplined Trust, Series 13 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 "Distribution Date" shall mean the "Distribution Dates" set
forth under "Investment Summary--Essential Information" in the Prospectus for
the Trust.
6. The term "Fund Shares" shall mean any Securities issued by an investment
company registered under the Investment Company Act of 1940.
7. The term "Mandatory Termination Date" shall mean the "Termination Date"
set forth under "Investment Summary--Essential Information" in the Prospectus
for the Trust.
8. The term "Record Date" shall mean the "Record Dates" set forth under
"Investment Summary--Essential Information" in the Prospectus for the Trust.
9. 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."
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. The first paragraph of Section 3.05(b)(i) of the Standard Terms and
Conditions of Trust is replaced in its entirety with the following:
"(i) On each Distribution Date, the Trustee shall distribute to each
Unitholder of record at the close of business on the preceding Record Date an
amount per Unit equal to such Unitholder's Income Distribution (as defined
below) plus such Unitholder's pro rata share of the balance of the Capital
Account (except for monies on deposit therein required to purchase Contract
Securities or to purchase Securities contracted for pursuant to the Depositor's
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purchase instructions) computed as of the close of business on the Record Date
immediately preceding such Distribution Date."
13. Section 3.05(b)(ii) of the Standard Terms and Conditions of Trust is
replaced in its entirety with the following:
"(ii) For the purpose of this Section 3.05, the Unitholder's "Income
Distribution" shall be equal to such Unitholder's pro rata share of the cash
balance in the Income Account computed as of the 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."
14. Section 3.05 of the Standard Terms and Conditions of Trust is hereby
amended by adding the following immediately after Section 3.05(b)(v):
"(vi) Notwithstanding the foregoing, The Trustee shall not be required to
make a distribution from the Income Account or the Capital Account unless the
aggregate cash for distribution within the meaning of Treas. Reg 1.671-5(b)(5)
from the Income Account and the Capital Account is equal to or greater than .1%
of the net asset value of the Trust on the related Record Date. This provision
is intended to comply with Treas. Reg. 1.671-5(c)(2)(v)(C), and shall
interpreted consistent therewith and with any successor regulation."
15. The first paragraph of Section 3.11 of the Standard Terms and Conditions
of Trust is amended by adding the following at the end of such paragraph:
"Notwithstanding the foregoing, in the event that the Trustee shall have
been notified at any time of any action to be taken or proposed to be taken by
holders of Fund Shares (including but not limited to the making of any demand,
direction, request, giving of any notice, consent or waiver or the voting with
respect to any matter relating to the Fund Shares), the Trustee shall promptly
notify the Depositor and shall thereupon take such action or refrain from taking
any action with respect to the Fund Shares so as to insure that the Fund Shares
are voted as closely as possible in the same manner and the same general
proportion, with respect to all issues, as are shares of such Fund Shares that
are held by owners other than the Trust."
16. The Depositor's annual compensation as set forth under Section 3.13
shall be that dollar amount per 100 Units set forth under "Investment Summary--
Fees and Expenses--Annual operating expenses--Supervisory, evaluation and
administration fees" in the Prospectus for the Trust.
17. Notwithstanding anything to the contrary in the Standard Terms and
conditions of Trust, no Unitholder may request a distribution of Fund Shares in-
kind pursuant to Sections 6.02, 6.05 or 9.02 during the 30 days prior to and
including the Mandatory Termination Date of a Trust.
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18. Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, if the Trustee sells, redeems or otherwise liquidates Fund
Shares pursuant to Section 6.02 to satisfy Unit redemptions, the Trustee shall
do so, as nearly as practicable, on a pro rata basis among all Fund Shares held
by the Trust.
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 second and third paragraph of Section 6.02 of the Standard Terms and
Conditions of Trust is hereby replaced in its entirety with the following:
"Notwithstanding the preceding paragraph, if a Unitholder electing an In
Kind Distribution is an Affiliated Redeeming Unitholder, as such term is defined
below, such In Kind Distribution shall be permitted subject to the following
conditions:
(a) The In Kind Distribution shall be consistent with the Trust's redemption
policies and undertakings, as set forth in the Trust's Prospectus;
(b) Neither the Affiliated Redeeming Unitholder, nor any other party with
the ability and the pecuniary incentive to influence the In Kind Distribution,
may select, or influence the selection of, the distributed Securities;
(c) Upon an In Kind Distribution by the Affiliated Redeeming Unitholder, the
Trustee shall distribute to the Affiliated Redeeming Unitholder its
proportionate share of every Security in the Trust's portfolio, provided that if
the Trustee is not an affiliated person (as the term "affiliated person" is
defined in the Investment Company Act of 1940, as amended) of the Affiliated
Redeeming Unitholder, the Trustee may exclude Discretionary Assets (as defined
below) from the In Kind Distribution to the extent that the Trustee cannot
practicably distribute such Discretionary Assets without undue burden or adverse
impact to the Trust or its Unitholders. If the Trustee determines that it is
impracticable to distribute the Discretionary Assets in kind, the Trustee shall
sell or liquidate the Discretionary Assets to raise funds to satisfy the
redemption, provided that if the Trustee cannot sell or liquidate the
Discretionary Assets, the Trustee may sell or liquidate other Securities;
(d) The In Kind Distribution may not favor the Affiliated Redeeming
Unitholder to the detriment of any other Unitholder;
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(e) The Trustee shall monitor each In Kind Distribution on a quarterly basis
for compliance with all provisions of this Section 6.02; and
(f) The Trustee shall maintain and preserve for a period of not less than
six years from the end of the fiscal year in which the In Kind Distribution
occurs, the first two years in an easily accessible place, records for each In
Kind Distribution setting forth the identity of the Affiliated Redeeming
Unitholder, a description of the composition of the Trust's portfolio (including
each asset's value) immediately prior to the In Kind Distribution, a description
of each Security distributed in-kind, the terms of the In Kind Distribution, the
information or materials upon which the asset valuations were made, and a
description of the composition of the Trust's portfolio (including each asset's
value) one month after the In Kind Distribution.
(g) The term "Affiliated Redeeming Unitholder" shall mean an affiliated
person or a promoter of or a principal underwriter for the Trust, or an
affiliated person of such a person, promoter or principal underwriter. The
terms "affiliated person," "promoter" and "principal underwriter" as used in the
preceding sentence shall have the meanings assigned to each such term in the
Investment Company Act of 1940, as amended.
(h) The term "Discretionary Assets" shall mean (i) securities that, if
distributed, would be required to be registered under the Securities Act of
1933, as amended; (ii) securities issued by entities in countries that (A)
restrict or prohibit the holding of securities by non-nationals other than
through qualified investment vehicles, or (B) permit transfers of ownership of
securities to be effected only by transactions conducted on a local stock
exchange; and (iii) any assets that, although they may be liquid and marketable,
must be traded through the marketplace or with the counterparty to the
transaction in order to effect a change in beneficial ownership."
21. The first sentence of Section 7.04 of the Standard Terms and Conditions
of Trust is replaced in its entirety by the following:
"For services performed under this Indenture the Trustee shall be paid an
annual fee in the amount per Unit set forth in the Trust Agreement, which fee
shall accrue daily and be computed based on the number of Units outstanding as
of January 1 of such year except for a Trust during the year or years in which
an initial offering period as determined in Section 5.01 of this Indenture
occurs, in which case the fee for a month is based on the number of Units
outstanding at the end of such month (such annual fee to be pro rated for any
calendar year in which the Trustee provides services during less than the whole
of such year)."
22. The Trustee's annual compensation as set forth under Section 7.04, shall
be $0.0105 per Unit.
23. 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
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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
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 1st day of October in the year 2008, 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
By /s/ XXXXXX XXXXXXXX
-----------------------------
Vice President
CORPORATE ACKNOWLEDGMENT
STATE OF NEW YORK }
}ss.
COUNTY OF KINGS }
On the 1st day of October in the year 2008, before me personally came
Xxxxxx Xxxxxxxx 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 289
Incorporated herein by this reference and made a part hereof
is the schedule set forth under "Portfolio" in the Prospectus for the Trust.
