EXHIBIT 1.1
ADVISORS DISCIPLINED TRUST 945
TRUST AGREEMENT
Dated: November 16, 2012
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. Notwithstanding anything to the contrary in the Standard Terms and
Conditions of Trust, all Units will be held in uncertificated form and
Unitholders may not request a certificate representing his or her Units.
4. 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.
5. 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.
6. The term "First Settlement Date" shall mean the third Business Day
following the Initial Date of Deposit.
7. The term "Monthly Distribution Date" shall mean the "Distribution Dates"
set forth under "Investment Summary--Essential Information" in the Prospectus
for the Trust.
8. The term "Monthly 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(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."
11. 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."
12. 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."
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13. Section 3.05 of the Standard Terms and Conditions of Trust is replaced
in its entirety with the following:
Section 3.05. Distributions. The Trustee, as of the First Settlement
Date, shall advance from its own funds and shall pay to the Unitholders of each
Trust then of record the amount of interest accrued on the Securities deposited
in such Trust. The Trustee shall be entitled to reimbursement for such
advancement from interest received by the respective Trust before any further
distributions shall be made from the Interest Account to Unitholders of such
Trust. The Trustee shall also advance from its own funds and pay the
appropriate persons the amount of any interest which accrues on any "when, as
and if issued" or "delayed delivery" Securities deposited in a trust from the
First Settlement Date to the respective dates of delivery to the Trust of any
such Securities. Subsequent distributions shall be made as hereinafter provided.
As of each Monthly Record Date, the Trustee shall, with respect to each
Trust:
(a) deduct from the Interest Account or, to the extent funds are not
available in such Account, from the Principal Account and pay to itself
individually the amounts that it is at the time entitled to receive
pursuant to Section 7.04;
(b) deduct from the Interest Account, or, to the extent funds are not
available in such Account, from the Principal Account and pay to the
Depositor the amount that it is entitled to receive pursuant to Section
3.14; and
(c) deduct from the Interest Account, or, to the extent funds are not
available in such Account, from the Principal Account and pay to counsel,
as hereinafter provided for, an amount equal to unpaid fees and expenses,
if any, of such counsel pursuant to Section 3.09 as certified to by the
Depositor.
On or shortly after each Monthly Distribution Date for a Trust, the Trustee
shall make distributions as described herein by mail to or upon the order of
each Unitholder of record of such Trust as of the close of business on the
preceding Monthly Record Date at the post office address appearing on the
registration books of the Trustee. As of the "Initial distribution date" set
forth under "Investment Summary--Essential Information" in the Trust Prospectus
the Trustee shall distribute funds from the Interest Account of such Trust to
each Unitholder of record of such Trust as of the close of business on the
"Initial record date" set forth under "Investment Summary--Essential
Information" in the Trust Prospectus the amount specified under "Investment
Summary--Essential Information--Estimated initial distribution per unit" in the
Trust Prospectus. Thereafter, subsequent distributions of funds from the
Interest Account of a Trust to each Unitholder shall consist of such
Unitholder's pro rata share of the balance of the Interest Account calculated as
of the Monthly Record Date on the basis of one-twelfth of the estimated annual
interest income to such Trust for the ensuing twelve months after deduction of
the estimated costs and expenses of such Trust to be incurred and chargeable to
the Interest Account during the twelve month period for which the interest
income is to be estimated. In making such computation, the Trustee shall treat
as received amounts receivable by the Trust on the Securities prior to the next
following Monthly Distribution Date in respect of a record date for a Security
occurring on or before the Monthly Record Date on which the computation is
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being made; should such amounts not be received by the Trust, the computation
shall be adjusted to reflect amounts actually received.
In the event the amount on deposit in the Interest Account of a Trust is
not sufficient for the payment of the amount of interest to be distributed to
Unitholders on the bases of the aforesaid computations, the Trustee may advance
its own funds and cause to be deposited in and credited to such Interest Account
such amounts as may be required to permit payment of the monthly interest
distribution to be made as aforesaid and shall be entitled to be reimbursed out
of amounts credited to the Interest Account subsequent to the date of such
advance.
Distributions of amounts represented by the cash balance in the Principal
Account for a Trust shall be computed as of each Monthly Record Date, provided,
however, that for this purpose the cash balance of the Principal Account shall
not include amounts permitted to be reinvested in Reinvestment Bonds pursuant to
Section 3.14 until the Depositor otherwise notifies the Trustee in writing. On
the following Monthly Distribution Date, or within a reasonable period of time
thereafter, the Trustee shall distribute by mail to each Unitholder of record of
such Trust at the close of business on the preceding Monthly Record Date at his
post office address such Unitholder's pro rata share of the cash balance of the
Principal Account calculated as of such Monthly Record Date, after deduction of
the costs and expenses of such Trust chargeable to the Principal Account. 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.
If the Depositor (i) fails to replace any Failed Contract Security or (ii)
is unable or fails to enter into any contract for the purchase of any
Replacement Security in accordance with Section 3.13, the Trustee shall
distribute to all Unitholders of the related Trust the principal, accrued
interest and sales charge attributable to such Failed Contract Security at the
next Monthly Distribution Date which is more than thirty days after the
expiration of the Purchase Period or at such earlier time or in such manner as
the Trustee in its sole discretion deems to be in the best interest of the
Unitholders of the related Trust.
If any contract for a Replacement Security in replacement of a Failed
Contract Security shall fail, the Trustee shall distribute the principal, and,
to the extent paid by the Depositor, the accrued interest and sales charge
attributable to the Failed Contract Security to the Unitholders of the related
Trust at the next Monthly Distribution Date which is more than thirty days after
the date on which the contract in respect of such Replacement Security failed or
at such earlier time or in such earlier manner as the Trustee in its sole
discretion determines to be in the best interest of the Unitholders of the
related Trust. The Depositor agrees to reimburse the Trustee for any sales
charge payments collected by the Depositor to which it is not entitled pursuant
to this paragraph.
If, at the end of the Purchase Period, less than all moneys attributable to
a Failed Contract Security have been applied or allocated by the Trustee
pursuant to a contract to purchase Replacement Securities, the Trustee shall
distribute the remaining moneys to Unitholders of the related Trust at the next
Monthly Distribution Date which is more than thirty days after the end
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of the Purchase Period or at such earlier time thereafter as the Trustee in its
sole discretion deems to be in the best interest of the Unitholders of the
related Trust.
The amounts to be so distributed to each Unitholder of a Trust shall be
that pro rata share of the cash balance of the Interest and Principal Accounts
of such Trust, computed as set forth above, as shall be represented by the Units
registered in the name of such Unitholder. In the computation of each such
share, fractions of less than one cent shall be omitted. After any such
distribution provided for above, any cash balance remaining in an Interest
Account or Principal Account of a Trust shall be held in the same manner as
other amounts subsequently deposited in each of such Interest and Principal
Accounts, respectively.
For the purpose of distributions as herein provided, the Unitholders of
record on the registration books of the Trustee at the close of business on each
Monthly Record Date shall be conclusively entitled to the related distribution,
and no liability shall attach to the Trustee by reason of payment to any such
registered Unitholder of record. Nothing herein shall be construed to prevent
the payment of amounts from the Interest Account and the Principal Account of a
Trust to individual Unitholders by means of one check, draft or other proper
instrument, provided that the appropriate statement of such distribution shall
be furnished therewith as provided in Section 3.06 hereof.
Notwithstanding anything to the contrary herein, 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.
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.
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(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."
17. The third paragraph of Section 3.15 of the Standard Terms and Conditions
of Trust is replaced in its entirety by the following:
"To the extent permitted by applicable laws, rules and regulations, any
moneys payable to the Depositor pursuant to this Section 3.15 shall be secured
by a lien on the related Trust in favor of the Depositor prior to the interest
of Unitholders, but no such lien shall be prior to any lien in favor of the
Trustee under the provisions of Section 7.04 herein. 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."
18. 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.
19. Section 3.16 of the Standard Terms and Conditions of Trust is hereby
amended by adding the following immediately after the second paragraph:
"To the extent permitted by applicable laws, rules and regulations, any
moneys payable to the Depositor pursuant to this Section 3.16 shall be secured
by a lien on the related Trust in favor of the Depositor prior to the interest
of Unitholders, but no such lien shall be prior to any lien in favor of the
Trustee under the provisions of Section 7.04 herein. 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."
20. Section 3.17 of the Standard Terms and Conditions of Trust is hereby
amended by adding the following immediately after the first paragraph:
"To the extent permitted by applicable laws, rules and regulations, any
moneys payable to the Depositor pursuant to this Section 3.17 shall be secured
by a lien on the related Trust in
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favor of the Depositor prior to the interest of Unitholders, but no such lien
shall be prior to any lien in favor of the Trustee under the provisions of
Section 7.04 herein. 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."
21. 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.
22. 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 0 Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxxxxx, XX 00000, 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")."
23. 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)."
24. 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
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reduced if and as specified in footnote 1 under "Investment Summary--Fees and
Expenses" in the Prospectus for the Trust.
25. 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 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 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 amndment."
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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 November in the year 2012, 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
IN WITNESS WHEREOF, the undersigned have caused this Trust Agreement to be
executed; all as of the day, month and year first above written.
THE BANK OF NEW YORK MELLON
By /s/ XXXXXXX XXXXXXXX
-----------------------------
Vice President
CORPORATE ACKNOWLEDGMENT
STATE OF NEW YORK }
}ss.
COUNTY OF KINGS }
On the 16th day of November in the year 2012, before me personally came
Xxxxxxx 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/ 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 945
Incorporated herein by this reference and made a part hereof
is the schedule set forth under "Portfolio" in the Prospectus for the Trust.
