EXHIBIT 1.1
ADVISORS DISCIPLINED TRUST 394
TRUST AGREEMENT
Dated: July 16, 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 Mortgage-
Backed Securities of the Modified Pass-Through guaranteed by the Government
National Mortgage Association Established On and After August 5, 2004 (Including
Advisor's Disciplined Trust, Series 11 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):
"(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
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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. Section 3.07(a)(viii) of the Standard Terms and Conditions of Trust
shall be replaced in its entirety with the following:
"(viii) 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 (i) to maintain the
qualification of the Trust as a regulated investment company or (ii) to provide
funds to make any distribution for a taxable year in order to avoid imposition
of any income or excise taxes on the Trust or on undistributed income in the
Trust.
(ix) 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 United States Internal
Revenue Code of 1986, as amended."
14. The first two sentences in the second paragraph of Section 3.12 of the
Standard Terms and Conditions of Trust shall be 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 shall at the direction of the Depositor, vote
for or against, or accept or reject, any offer for 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."
15. Section 3.13(a) of the Standard Terms and Conditions of Trust shall be
replaced in its entirety with the following:
"(a) The Replacement Securities shall be Securities as originally selected
for deposit in the Trust or securities which the Depositor determines to be
similar in character as Securities originally selected for deposit in the
Trust;"
16. The Depositor's annual compensation as set forth under Section 3.14
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. The Standard Terms and Conditions of Trust shall be amended to include
the following section:
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"Section 3.17. 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."
18. 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")."
19. 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)."
20. The Trustee's annual compensation as set forth under Section 7.04 shall
be $0.0105 per Unit.
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
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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 16th day of July 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
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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 16th day of July 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 394
Incorporated herein by this reference and made a part hereof
is the schedule set forth under "Portfolio" in the Prospectus for the Trust.
