Exhibit (a)1.1
▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT COMPANY
AMENDED AND RESTATED
MASTER TRUST AGREEMENT
August 19, 2002
▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT COMPANY
AMENDED AND RESTATED MASTER TRUST AGREEMENT
Page
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ARTICLE I. NAME AND DEFINITIONS 1
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Section 1.1 Name 1
Section 1.2 Definitions 2
(a) "Agreement" 2
(b) "By-Laws" 2
(c) "Classes" 2
(d) "Commission" 2
(e) "Declaration of Trust" 2
(f) "Distribution Plan" 2
(g) "Interested Person" 2
(h) "Shareholder" 2
(i) "Shareholder Services Plan" 2
(j) "Shares" 2
(k) "Sub-Trust" or "Series" 2
(l) "Trust" 2
(m) "Trustee Emeritus" 2
(n) "Trustees" 2
(o) "1940 Act" 3
ARTICLE II. PURPOSE OF TRUST 3
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ARTICLE III. THE TRUSTEES 3
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Section 3.1 Number, Designation, Election, Term, etc. 3
(a) [Reserved] 3
(b) Number 3
(c) Election and Term 3
(d) Resignation and Retirement 3
(e) Removal 3
(f) Vacancies 4
(g) Effect of Death, Resignation, etc. 4
(h) No Accounting 4
(i) Trustee Emeritus 4
Section 3.2 Powers of Trustees 5
(a) Investments 5
(b) Disposition of Assets 5
(c) Ownership Powers 6
(d) Subscription 6
(e) Form of Holding 6
(f) Reorganization, etc. 6
(g) Voting Trusts, etc. 6
(h) Compromise 6
(i) Partnerships, etc. 6
(j) Borrowing and Security 6
(k) Guarantees, etc. 6
(1) Insurance 6
(m) Pensions, etc. 7
(n) Resident Agent 7
Section 3.3 Certain Contracts 7
(a) Advisory and Sub-Advisory 7
(b) Administration 8
(c) Distribution 8
(d) Custodian and Depository 8
(e) Transfer and Dividend Disbursing Agency 8
(f) Shareholder Servicing 8
(g) Accounting 8
Section 3.4 Payment of Trust Expenses and Compensation of Trustees 9
Section 3.5 Ownership of Assets of the Trust 9
ARTICLE IV. SHARES 9
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Section 4.1 Description of Shares 9
Section 4.2 Establishment and Designation of Sub-Trusts 11
(a) Assets Belonging to Sub-Trusts 12
(b) Liabilities Belonging to Sub-Trusts 12
(c) Dividends 12
(d) Liquidation 13
(e) Voting 13
(f) Redemption by Shareholder 13
(g) Redemption by Trust 14
(h) Net Asset Value 14
(i) Transfer 14
(j) Equality 14
(k) Fractions 14
(l) Conversion Rights 15
Section 4.3 Establishment and Designation of Classes of the Sub-Trusts 15
Section 4.4 Ownership of Shares 17
Section 4.5 Investments in the Trust 17
Section 4.6 No Pre-emptive Rights 18
Section 4.7 Status of Shares and Limitation of Personal Liability 18
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS 18
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Section 5.1 Voting Powers 18
Section 5.2 Meetings 18
Section 5.3 Record Dates 19
Section 5.4 Quorum and Required Vote 19
Section 5.5 Action by Written Consent 20
Section 5.6 Inspection of Records 20
Section 5.7 Additional Provisions 20
Section 5.8 Shareholder Communications 20
ARTICLE VI. LIMITATION OF LIABILITY; INDEMNIFICATION 21
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Section 6.1 Trustees, Trustees Emeritus, Shareholders, etc.
Not Personally Liable; Notice 21
Section 6.2 Trustee's/Trustee's Emeritus Good Faith Action;
Expert Advice; No Bond or Surety 21
Section 6.3 Indemnification of Shareholders 22
Section 6.4 Indemnification of Trustees, Trustees Emeritus, Officers, etc. 22
Section 6.5 Compromise Payment 23
Section 6.6 Indemnification Not Exclusive, etc. 23
Section 6.7 Liability of Third Persons Dealing with Trustees
and Trustees Emeritus 23
ARTICLE VII. MISCELLANEOUS 23
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Section 7.1 Duration and Termination of Trust 23
Section 7.2 Reorganization 24
Section 7.3 Amendments 24
Section 7.4 Filing of Copies; References; Headings 25
Section 7.5 Applicable Law 25
▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT COMPANY
AMENDED AND RESTATED MASTER TRUST AGREEMENT
AMENDED AND RESTATED MASTER TRUST AGREEMENT AND DECLARATION OF TRUST made
at Tacoma, Washington this 19th day of August, 2002, by the Trustees hereunder.
WITNESSETH
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS this Trust is authorized to issue its shares of beneficial interest
in separate series, each separate series to be a Sub-Trust hereunder, all in
accordance with the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into their
hands as trustees of a Massachusetts business trust in accordance with the
provisions hereinafter set forth; and
WHEREAS the Trust was established pursuant to a Master Trust Agreement
dated as of July 26, 1984 (the "Original Agreement"); and
WHEREAS there are 23 amendments to the Original Agreement (the Original
Agreement together with such amendments, the "Amended Agreement"); and
WHEREAS the Trustees desire to amend and restate the Original Agreement to
incorporate each of the 23 amendments to the Original Agreement and to further
amend the Amended Agreement;
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets which they may from time to time acquire in any
manner as Trustees hereunder IN TRUST to manage and dispose of the same upon the
following terms and conditions for the benefit of the holders from time to time
of shares of beneficial interest in this Trust or Sub-Trusts created hereunder
as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1 Name. This Trust shall be known as "▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT
COMPANY" and the Trustees shall conduct the business of the Trust under that
name or any other name or names as they may from time to time determine.
Notwithstanding the foregoing, the Trust expressly acknowledges and agrees that
if ▇▇▇▇▇ ▇▇▇▇▇▇▇ Company, a corporation organized and existing under the laws of
the State of Washington, or any of its corporate affiliates, no longer serves as
investment adviser to the Trust, the Trust will immediately take all action
necessary to change its name to delete any reference to "▇▇▇▇▇ ▇▇▇▇▇▇▇."
Section 1.2 Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) "Agreement" means this Amended and Restated Master Trust Agreement and
Declaration of Trust as amended or restated from time to time;
(b) "By-Laws" shall mean the By-Laws of the Trust as amended from time to
time;
(c) "Classes" shall mean a sub-division of the Trust, established by this
Agreement or by action of the Trustees, consisting of a portion of the Shares of
a Series or Sub-Trust, provided, that all Shares of a Sub-Trust shall have a
proportionate undivided interest in the assets of such Sub-Trust as determined
in accordance with the rights and preferences established as to each such Class;
(d) "Commission" shall have the meaning given it in the 1940 Act;
(e) "Declaration of Trust" shall mean this Amended and Restated Master
Trust Agreement and Declaration of Trust as amended or restated from time to
time;
(f) "Distribution Plan" refers to a plan adopted in accordance with Rule
12b-1 of the Investment Company Act of 1940, as amended;
(g) "Interested Person" shall have the meaning given to it in the 1940
Act.
(h) "Shareholder" means a record owner of Shares;
(i) "Shareholder Services Plan" shall mean the Shareholder Services Plan
of the Trust as amended from time to time;
(j) "Shares" refers to the transferrable units of interest into which the
beneficial interest in the Trust and each Sub-Trust of the Trust (as the context
may require) shall be divided from time to time;
(k) "Sub-Trust" or "Series" refers to Series of Shares established and
designated under or in accordance with the provisions of Article IV, each of
which Series shall be a Sub-Trust of the Trust;
(l) The "Trust" refers to the Massachusetts business trust established by
this Agreement and Declaration of Trust, as amended from time to time, inclusive
of each and every Sub-Trust established hereunder;
(m) "Trustee Emeritus" refers to each person elected to that office from
time to time by the Trustees of the Trust, and serving as same;
(n) "Trustees" refers to the Trustees of the Trust and of each Sub-Trust
hereunder named herein or elected in accordance with Article III but does not
include Trustees Emeritus; and
(o) The "1940 Act" refers to the Investment Company Act of 1940 or any
successor statute enacted by Congress and the Rules and Regulations thereunder
or exemptive orders issued thereunder which are applicable to the Trust, all as
amended from time to time.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company and to
offer Shareholders of the Trust and each Sub-Trust of the Trust one or more
investment vehicles primarily in securities and debt instruments.
ARTICLE III
THE TRUSTEES
Section 3.1 Number, Designation, Election, Term, etc.
(a) [Reserved].
(b) Number. The Trustee(s) serving as such, whether currently a Trustee or
hereafter becoming a Trustee, may increase or decrease the number of Trustees to
a number other than the number previously determined. No decrease in the number
of Trustees shall have the effect of removing any Trustee from office prior to
the expiration of his term, but the number of Trustees may be decreased in
conjunction with the removal of a Trustee pursuant to subsection (e) of this
Section 3.1.
(c) Election and Term. Each Trustee, whether currently a Trustee or
hereafter becoming a Trustee, shall serve as a Trustee of the Trust and of each
Sub-Trust hereunder during the lifetime of this Trust and until its termination
as hereinafter provided except as such Trustee sooner dies, retires, resigns or
is removed. Subject to Section 16(a) of the 1940 Act, the Trustees may elect
their own successors and may, pursuant to Section 3.1(f) hereof, appoint
Trustees to fill vacancies.
(d) Resignation and Retirement. Any Trustee may resign his or her trust or
retire as a Trustee, by written instrument signed by him or her and delivered to
the other Trustees or to any officer of the Trust and such resignation or
retirement shall take effect upon such delivery or upon such later date as is
specified in such instrument and shall be effective as to the Trust and each
Sub-Trust hereunder. Notwithstanding the foregoing, a retirement by a Trustee
required by or in accordance with any policy approved and adopted by a majority
of the Trustees with respect to retirements of Trustees (including, but not
limited to, any policy providing for mandatory retirement of Trustees upon their
attainment of a specified age) shall be governed by and take effect in
accordance with such policy and shall be effective as to the Trust and each
Sub-Trust.
(e) Removal. Any Trustee may be removed with or without cause at any time:
(i) by written instrument, signed by at least two-thirds of the number of
Trustees prior to such removal, specifying the date upon which such removal
shall become effective; or (ii) by vote of
Shareholders holding not less than two-thirds of the Shares then outstanding,
cast in person or by proxy at any meeting called for the purpose; or (iii) by a
written declaration signed by Shareholders holding not less than two-thirds of
the Shares then outstanding and filed with the Trust's Custodian. Any such
removal shall be effective as to the Trust and each Sub-Trust hereunder.
(f) Vacancies. Any vacancy or anticipated vacancy resulting from any
reason, including without limitation the death, resignation, retirement, removal
or incapacity of any of the Trustees, or resulting from an increase in the
number of Trustees by the other Trustees may (but need not unless required by
the ▇▇▇▇ ▇▇▇) be filled by a majority of the remaining Trustees, subject to the
provisions of Section 16(a) of the 1940 Act, through the appointment in writing
of such other person as such remaining Trustees in their discretion shall
determine and such appointment shall be effective upon the written acceptance of
the person named therein to serve as a Trustee and agreement by such person to
be bound by the provisions of this Declaration of Trust, except that any such
appointment in anticipation of a vacancy to occur by reason of retirement,
resignation, or increase in number of Trustees to be effective at a later date
shall become effective only at or after the effective date of said retirement,
resignation, or increase in number of Trustees. As soon as any Trustee so
appointed shall have accepted such appointment and shall have agreed in writing
to be bound by this Declaration of Trust and the appointment is effective, the
Trust estate shall vest in the new Trustee, together with the continuing
Trustees, without any further act or conveyance.
(g) Effect of Death, Resignation, etc. The death, resignation, retirement,
removal, or incapacity of the Trustees, or any one of them, shall not operate to
annul or terminate the Trust or any Sub-Trust hereunder or to revoke or
terminate any existing agency or contract created or entered into pursuant to
the terms of this Declaration of Trust.
(h) No Accounting. Except to the extent required by the 1940 Act or under
circumstances which would justify his removal for cause, no person ceasing to be
a Trustee as a result of his death, resignation, retirement, removal or
incapacity (nor the estate of any such person) shall be required to make an
accounting to the Shareholders or remaining Trustees prior or subsequent to such
cessation.
(i) Trustee Emeritus. Any natural person qualified to hold the office of
Trustee under this Agreement who is not then a Trustee may be elected by a
majority of the Trustees then in office to serve as Trustee Emeritus for a
period of one year from the date of election, or such other term as may be
specified by the Board (which period shall not extend beyond such time as the
members of such Board next stand for election as Trustees). A Trustee Emeritus
shall be subject to removal by the Board from time to time with or without
cause. A Trustee Emeritus shall be given notice of each meeting of the Board of
Trustees in the same manner as each regular Trustee then in office (provided
that no failure to give or to receive such notice of a meeting shall affect the
status of the meeting as having been duly called and held or the validity of any
action taken by the regular Trustees at the meeting), shall be entitled to
attend each meeting of the Board, and shall be provided with access to such
records of the Trust as are made available to each Trustee. Notwithstanding the
foregoing, no Trustee Emeritus may vote at any meeting of the Board, or of any
committee of the Board, or direct the vote of any Trustee at same. A Trustee
Emeritus shall not be held responsible by virtue of service as a Trustee
Emeritus, either at law or in equity, for any action or failure to act of the
Trust, or of the Board of Trustees or any committee thereof including, without
limitation, any exercise or failure to
exercise powers necessary or convenient to carry out the responsibility of the
Trustees pursuant to Section 3.2 hereof. A Trustee Emeritus who is not an
Interested Person of the Trust may receive such fees and reimbursement of
expenses as are authorized for payment to each Trustee who is not an Interested
Person of the Trust.
Section 3.2 Powers of Trustees. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the
Trustees, and they shall have all powers necessary or convenient to carry out
that responsibility and the purpose of the Trust. Without limiting the
foregoing, the Trustees may adopt By-Laws not inconsistent with this Declaration
of Trust providing for the conduct of the business and affairs of the Trust and
may amend and repeal them to the extent that such By-Laws do not reserve that
right to the Shareholders; they may from time to time in accordance with the
provisions of Section 4.2 and 4.3, respectively, hereof establish Sub-Trusts and
Classes of Sub-Trusts, each such Sub-Trust to operate as a separate and distinct
investment medium and with separately defined investment objectives and policies
and distinct investment purpose; they may as they consider appropriate elect and
remove officers and appoint and terminate agents and consultants and hire and
terminate employees, any one or more of the foregoing of whom may be a Trustee,
and may provide for the compensation of all of the foregoing; they may appoint
from their own number, and terminate, any one or more committees consisting of
two or more Trustees, including without implied limitation an executive
committee, which may, when the Trustees are not in session and subject to the
1940 Act, exercise some or all of the power and authority of the Trustees as the
Trustees may determine; in accordance with Section 3.3, they may employ one or
more advisers, administrators, depositories and custodians and may authorize any
depository or custodian to employ subcustodians or agents and to deposit all or
any part of such assets in a system or systems for the central handling of
securities and debt instruments, retain transfer, dividend, accounting or
Shareholder servicing agents or any of the foregoing, provide for the
distribution of Shares by the Trust through one or more distributors, principal
underwriters or otherwise, set record dates or times for the determination of
Shareholders or various of them with respect to various matters; they may
compensate or provide for the compensation of the Trustees, officers, advisers,
administrators, custodians, other agents, consultants and employees of the Trust
or the Trustees on such terms as they deem appropriate; and, in general they may
delegate to any officer of the Trust, to any committee of the Trustees and to
any employee, adviser, administrator, distributor, depository, custodian,
transfer and dividend disbursing agent, or any other agent or consultant of the
Trust such authority, powers, functions and duties as they consider desirable or
appropriate for the conduct of the business and affairs of the Trust, including
without implied limitation the power and authority to act in the name of the
Trust and of the Trustees, to sign documents and to act as attorney-in-fact for
the Trustees. In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Trustees.
Without limiting the foregoing and to the extent not inconsistent with the
1940 Act or other applicable law, the Trustees shall have the following power
and authority for and on behalf of the Trust and each separate Sub-Trust
established hereunder:
(a) Investments. To invest and reinvest cash and other property, and to
hold cash or other property uninvested without in any event being bound or
limited by any present or future law or custom in regard to investments by
trustees;
(b) Disposition of Assets. To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the assets of the Trust;
(c) Ownership Powers. To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities, debt instruments or
property; and to execute and deliver proxies or powers of attorney to such
person or persons as the Trustees shall deem proper, granting to such person or
persons such power and discretion with relation to securities, debt instruments
or property as the Trustees shall deem proper;
(d) Subscription. To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities or debt
instruments;
(e) Form of Holding. To hold any security, debt instrument or property in
a form not indicating any trust, whether in bearer, unregistered or other
negotiable form, or in the name of the Trustees or of the Trust or of any
Sub-Trust or in the name of a custodian, subcustodian or other depository or a
nominee or nominees or otherwise;
(f) Reorganization, etc. To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security or debt instrument of which is or was held in the Trust; to consent to
any contract, lease, mortgage, purchase or sale-of property by such corporation
or issuer, and to pay calls or subscriptions with respect to any security or
debt instrument held in the Trust;
(g) Voting Trusts, etc. To join with other holders of any securities or
debt instruments in acting through a committee, depository, voting trustee or
otherwise, and in that connection to deposit any security or debt instrument
with, or transfer any security or debt instrument to, any such committee,
depository or trustee, and to delegate to them such power and authority with
relation to any security or debt instrument (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and to pay,
such portion of the expenses and compensation of such committee, depository or
trustee as the Trustees shall deem proper;
(h) Compromise. To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any Sub-Trust or any matter in controversy,
including but not limited to claims for taxes;
(i) Partnerships, etc. To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) Borrowing and Security. To borrow funds and to mortgage and pledge the
assets of the Trust or any Sub-Trust or any part thereof to secure obligations
arising in connection with such borrowing;
(k) Guarantees, etc. To endorse or guarantee the payment of any notes or
other obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust property (or Sub-Trust property) or any part thereof to secure any of or
all such obligations;
(l) Insurance. To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and
principal on its portfolio investments, and insurance policies insuring the
Shareholders, Trustees, Trustees Emeritus, officers, employees, agents,
consultants, investment advisers, managers, administrators, distributors,
principal underwriters, or independent contractors, or any thereof (or any
person connected therewith), of the Trust individually against all claims and
liabilities of every nature arising by reason of holding, being or having held
any such office or position, or by reason of any action alleged to have been
taken or omitted by any such person in any such capacity, including any action
taken or omitted that may be determined to constitute negligence, whether or not
the Trust would have the power to indemnify such person against such liability;
and
(m) Pensions, etc. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trust and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, Trustees
Emeritus, officers, employees and agents of the Trust.
(n) Resident Agent. To appoint CT Corporation System, located at ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as the Trust's resident agent in the
Commonwealth of Massachusetts and to appoint any successor or additional
resident agent in the Commonwealth of Massachusetts.
Except as otherwise provided by the 1940 Act or other applicable law, this
Declaration of Trust or the By-Laws, any action to be taken by the Trustees on
behalf of the Trust or any Sub-Trust may be taken by a majority of the Trustees
present at a meeting of Trustees (a quorum, consisting of at least a majority of
the Trustees then in office, being present), within or without Massachusetts,
including any meeting held by means of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time and participation by such means
shall constitute presence in person at a meeting, or by written consents of a
majority of the Trustees then in office (or such larger or different number as
may be required by the 1940 Act or other applicable law).
Section 3.3 Certain Contracts. Subject to compliance with the provisions of
the 1940 Act, but notwithstanding any limitations of present and future law or
custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time and without limiting the generality of
their powers and authority otherwise set forth herein, enter into one or more
contracts with any one or more corporations, trusts, associations, partnerships,
limited partnerships, other type of organizations, or individuals ("Contracting
Party"), to provide for the performance and assumption of some or all of the
following services, duties and responsibilities to, for or on behalf of the
Trust and/or any Sub-Trust, and/or the Trustees, and to provide for the
performance and assumption of such other services, duties and responsibilities
in addition to those set forth below as the Trustees may determine appropriate,
and to authorize such Contracting Party to employ or retain any one or more
corporations, trusts, associations, partnerships, limited partnerships, other
type of organizations, or individuals to provide to the Trust or to the
Contracting Party such services:
(a) Advisory and Sub-Advisory. Subject to the general supervision of the
Trustees and in conformity with the stated policy of the Trustees with respect
to the investments of the Trust or of the assets belonging to any Sub-Trust of
the Trust (as that phrase is defined in
subsection (a) of Section 4.1), to appoint an adviser and sub-advisers to manage
such investments and assets, make investment decisions with respect thereto, and
to place purchase and sale orders for portfolio transactions relating to such
investments and assets;
(b) Administration. Subject to the general supervision of the Trustees and
in conformity with any policies of the Trustees with respect to the operations
of the Trust and each Sub-Trust, to supervise all or any part of the operations
of the Trust and each Sub-Trust, and to provide all or any part of the
administrative and clerical personnel, office space and office equipment and
services appropriate for the efficient administration and operations of the
Trust and each Sub-Trust;
(c) Distribution. To distribute the Shares of the Trust and each
Sub-Trust, to be principal underwriter of such Shares, and/or to act as agent of
the Trust and each Sub-Trust in the sale of Shares and the acceptance or
rejection of orders for the purchase of Shares;
(d) Custodian and Depository. To act as depository for and to maintain
custody of the property of the Trust and each Sub-Trust and accounting records
in connection therewith;
(e) Transfer and Dividend Disbursing Agency. To maintain records of the
ownership of outstanding Shares, the issuance and redemption and the transfer
thereof, and to disburse any dividends declared by the Trustees and in
accordance with the policies of the Trustees and/or the instructions of any
particular Shareholder to reinvest any such dividends;
(f) Shareholder Servicing. To provide service with respect to the
relationship of the Trust and its Shareholders, records with respect to
Shareholders and their Shares, and similar matters; and
(g) Accounting. To handle all or any part of the accounting
responsibilities, whether with respect to the Trust's properties, Shareholders
or otherwise.
The same person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or in
addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine. Nothing herein
shall preclude, prevent or limit the Trust or a Contracting Party from entering
into sub-contractual arrangements relative to any of the matters referred to in
Sections 3.3(a) through (g) hereof.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party, or of or for any parent or affiliate of any Contracting
Party or that the Contracting Party or any parent or affiliate thereof is a
Shareholder or has an interest in the Trust or any Sub-Trust, or that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations,
trusts, associations, partnerships, limited partnerships or other
organizations, or have other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust or any
Sub-Trust and/or the Trustees or disqualify any Shareholder, Trustee or officer
of the Trust from voting upon or executing the same or create any liability or
accountability to the Trust, any Sub-Trust or its Shareholders, provided that in
the case of any relationship or interest referred to in the preceding clause (i)
on the part of any Trustee or officer of the Trust either (x) the material facts
as to such relationship or interest have been disclosed to or are known by the
Trustees not having any such relationship or interest and the contract involved
is approved in good faith by a majority of such Trustees not having any such
relationship or interest (even though such unrelated or disinterested Trustees
are less than a quorum of all of the Trustees), (y) the material facts as to
such relationship or interest and as to the contract have been disclosed to or
are known by the Shareholders entitled to vote thereon and the contract involved
is specifically approved in good faith by vote of the Shareholders, or (z) the
specific contract involved is fair to the Trust as of the time it is authorized,
approved or ratified by the Trustees or by the Shareholders.
Section 3.4 Payment of Trust Expenses and Compensation of Trustees. The
Trustees are authorized to pay or to cause to be paid out of the principal or
income of the Trust or any Sub-Trust, or partly out of principal and partly out
of income, and to charge or allocate the same to, between or among such one or
more of the Sub-Trusts that may be established and designated pursuant to
Article IV, as the Trustees deem fair, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust or any Sub-Trust,
or in connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser, administrator, distributor,
principal underwriter, auditor, counsel, depository, custodian, transfer agent,
dividend disbursing agent, accounting agent, Shareholder servicing agent, and
such other agents, consultants, and independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
Without limiting the generality of any other provision hereof, the Trustees
shall be entitled to reasonable compensation from the Trust for their services
as Trustees and may fix the amount of such compensation.
Section 3.5 Ownership of Assets of the Trust. Title to all of the assets of
the Trust shall at all times be considered as vested in the Trustees then
serving in office.
ARTICLE IV
SHARES
Section 4.1 Description of Shares. The beneficial interest in the Trust
shall be divided into Shares, all at $.01 par value, but the Trustees shall have
the authority from time to time to divide the Shares into two or more Series of
Shares (each of which Series of Shares shall be a separate and distinct
Sub-Trust of the Trust, including without limitation those Sub-Trusts
specifically established and designated in Section 4.2), as they deem necessary
or desirable. Each Sub-Trust established hereunder shall be deemed to be a
separate trust under Massachusetts General Laws Chapter 182. The Trustees shall
have exclusive power without the requirement of shareholder approval to
establish and designate such separate and distinct Sub-Trusts, and to fix
and determine the relative rights and preferences as between the shares of the
separate Sub-Trusts as to right of redemption and the price, terms and manner of
redemption, special and relative rights as to dividends and other distributions
and on liquidation, sinking or purchase fund provisions, conversion rights, and
conditions under which the several Sub-Trusts shall have separate voting rights
or no voting rights.
The number of authorized Shares and the number of Shares of each Sub-Trust
and Class that may be issued is unlimited, and the Trustees may issue Shares of
any Sub-Trust and Class for such consideration and on such terms as they may
determine (or for no consideration if pursuant to a Share dividend or split-up),
all without action or approval of the Shareholders. All Shares when so issued on
the terms determined by the Trustees shall be fully paid and nonassessable (but
may be subject to mandatory contribution back to the Trust as provided in
subsection (h) of Section 4.2). The Trustees may classify or reclassify any
unissued Shares or any Shares previously issued and reacquired of any Sub-Trust
into one or more Sub-Trusts or Class that may be established and designated from
time to time. The Trustees may hold as treasury Shares, reissue for such
consideration and on such terms as they may determine, or cancel, at their
discretion from time to time, any Shares of any Sub-Trust or Class reacquired by
the Trust.
In addition, the Trustees shall have the exclusive power, with or without
Shareholder approval, to establish and designate, and to issue by Classes,
Shares of any Sub-Trust or to divide the Shares of any Sub-Trust into Classes,
each Class having such different dividend, liquidation, voting, and other rights
as the Trustees may determine in their sole discretion. The fact that Shares of
a Sub-Trust shall have been issued without the designation of any Classes of
such Sub-Trust, or of any specific Class of such Sub-Trust, shall not limit the
authority of the Trustees to establish and designate such Shares as a Class, or
to establish and designate one or more Classes or additional Classes, without
the approval of Shareholders of such Sub-Trust, provided, that the establishment
and designation of any Class of a Sub-Trust shall not materially adversely
affect the rights of any existing Shareholder. In furtherance thereof, any
Shares designated and issued by a Sub-Trust for which no Class shall have been
designated shall be deemed to be Class S Shares of the Sub-Trust.
The Trustees may from time to time close the transfer books or establish
record dates and times for the purposes of determining the holders of Shares
entitled to be treated as such, to the extent provided or referred to in Section
5.3.
The establishment and designation of any Sub-Trust or Class of Sub-Trust in
addition to those established and designated in Section 4.2 and 4.3,
respectively, shall be effective upon the execution by a majority of the then
Trustees of an instrument setting forth such establishment and designation and
the relative rights and preferences of the Shares of such Sub-Trust or Class, or
as otherwise provided in such instrument. At any time that there are no Shares
outstanding of any particular Sub-Trust or Class previously established and
designated the Trustees may by an instrument executed by a majority of their
number abolish that Sub-Trust or Class and the establishment and designation
thereof. Each instrument referred to in this paragraph shall have the status of
an amendment to this Declaration of Trust.
Any Trustee, officer or other agent of the Trust, and any organization in
which any such person is interested may acquire, own, hold and dispose of Shares
of any Sub-Trust of the Trust to the same extent as if such person were not a
Trustee, officer or other agent of the Trust; and
the Trust may issue and sell or cause to be issued and sold and may purchase
Shares of any Sub-Trust and Class from any such person or any such organization
subject only to the general limitations, restrictions or other provisions
applicable to the sale or purchase of Shares of such Sub-Trust and Class
generally.
Section 4.2 Establishment and Designation of Sub-Trusts. Without limiting
the authority of the Trustees set forth in Section 4.1 to establish and
designate any further Sub-Trusts, the Trustees hereby establish and designate
the following Sub-Trusts:
Aggressive Strategy Fund
Balanced Strategy Fund
Conservative Strategy Fund
Diversified Bond Fund
Diversified Equity Fund
Emerging Markets Fund
Emerging Market Securities Fund
Equity Aggressive Strategy Fund (formerly Equity Balanced Strategy Fund)
Equity I Fund
Equity II Fund
Equity III Fund
Equity Income Fund
Equity Q Fund
Fixed Income I Fund
Fixed Income III Fund
International Fund
International Securities Fund
Moderate Strategy Fund
Money Market Fund
Multistrategy Bond Fund
Municipal Bond I Fund
Municipal Bond II Fund
Quantitative Equity Fund
Real Estate Securities Fund
▇▇▇▇▇▇▇ 1000 Index Fund
Select Growth Fund
Select Value Fund
Short-Term Bond Fund (formerly Fixed Income II Fund and survivor and by merger
of Volatility Constrained Bond Fund)
Special Growth Fund
Tax Exempt Bond Fund (formerly Limited Volatility Tax Free Fund)
Tax Free Money Market Fund
Tax-Managed Aggressive Strategy Fund
Tax-Managed Conservative Strategy Fund
Tax-Managed Global Equity Fund (formerly Tax-Managed Equity Aggressive Strategy
Fund)
Tax-Managed Large Cap Fund (formerly Equity T Fund)
Tax-Managed Mid & Small Cap Fund (formerly Tax-Managed Small Cap Fund)
Tax-Managed Moderate Strategy Fund
Tax-Managed Overseas Equity Fund
U.S. Government Money Market Fund
Shares of the above-referenced Sub-Trusts and any Shares of any further
Sub-Trusts that may from time to time be established and designated by the
Trustees shall (unless the Trustees otherwise determine with respect to some
further Sub-Trust at the time of establishing and designating the same) have the
following relative rights and preferences, and the power of the Trustees to
establish relative rights and preferences of Sub-Trusts pursuant to this Section
4.2 shall not detract from or limit the power of the Trustees under Section 4.1
to determine and set the relative rights and preferences of any Class thereof:
(a) Assets Belonging to Sub-Trusts. All consideration received by the Trust
for the issue or sale of Shares of a particular Sub-Trust, together with all
assets in which such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof, including any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds in whatever form the same may be, shall
be held by the Trustees in trust for the benefit of the holders of Shares of
that Sub-Trust and shall irrevocably belong to that Sub-Trust for all purposes,
and shall be so recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, together with any General Items
allocated to that Sub-Trust as provided in the following sentence, are herein
referred to as "assets belonging to" that Sub-Trust. In the event that there are
any assets, income, earnings, profits, and proceeds thereof, funds, or payments
which are not readily identifiable as belonging to any particular Sub-Trust
(collectively "General Items"), the Trustees shall allocate such General Items
to and among any one or more of the Sub-Trusts established and designated from
time to time in such manner and on such basis as they, in their sole discretion,
deem fair and equitable; and any General Items so allocated to a particular
Sub-Trust shall belong to that Sub-Trust. Each such allocation by the Trustees
shall be conclusive and binding upon the Shareholders of all Sub-Trusts for all
purposes.
(b) Liabilities Belonging to Sub-Trusts. The assets belonging to each
particular Sub-Trust shall be charged with the liabilities in respect of that
Sub-Trust and all expenses, costs, charges and reserves attributable to that
Sub-Trust, and any general liabilities, expenses, costs, charges or reserves of
the Trust which are not readily identifiable as belonging to any particular
Sub-Trust shall be allocated and charged by the Trustees to and among any one or
more of the Sub-Trusts established and designated from time to time in such
manner and on such basis as the Trustees in their sole discretion deem fair and
equitable. The liabilities, expenses, costs, charges and reserves allocated and
so charged to a Sub-Trust are herein referred to as "liabilities belonging to"
that Sub-Trust. Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon the Shareholders
of all Sub-Trusts for all purposes. Any creditor of any Sub-Trust may look only
to the assets of that Sub-Trust to satisfy such creditor's debt.
The Trustees shall have full discretion, to the extent not inconsistent
with the 1940 Act, to determine which items shall be treated as income and which
items as capital; and each such determination and allocation shall be conclusive
and binding upon the Shareholders.
(c) Dividends. Dividends and distributions on Shares of a particular
Sub-Trust may be paid with such frequency as the Trustees may determine, which
may be daily or otherwise pursuant to a standing resolution or resolutions
adopted only once or with such frequency as the
Trustees may determine, to the holders of Shares of that Sub-Trust, from such of
the income and capital gains, accrued or realized, from the assets belonging to
that Sub-Trust, as the Trustees may determine, after providing for actual and
accrued liabilities belonging to that Sub-Trust. All dividends and distributions
on Shares of a particular Sub-Trust shall be distributed pro rata to the holders
of Shares of that Sub-Trust in proportion to the number of Shares of that
Sub-Trust held by such holders at the date and time of record established for
the payment of such dividends or distributions, except that in connection with
any dividend or distribution program or procedure the Trustees may determine
that no dividend or distribution shall be payable on Shares as to which the
Shareholder's purchase order and/or payment have not been received by the time
or times established by the Trustees under such program or procedure. Such
dividends and distributions may be made in cash or Shares of that Sub-Trust or a
combination thereof as determined by the Trustees or pursuant to any program
that the Trustees may have in effect at the time for the election by each
Shareholder of the mode of the making of such dividend or distribution to that
Shareholder. Any such dividend or distribution paid in Shares will be paid at
the net asset value thereof as determined in accordance with subsection (h) of
Section 4.2.
(d) Liquidation. In the event of the liquidation or dissolution of the
Trust or any Sub-Trust, the Shareholders of each Sub-Trust that has been
established and designated and that has voted to be liquidated or dissolved,
shall be entitled to receive, when and as declared by the Trustees, the excess
of the assets belonging to that Sub-Trust over the liabilities belonging to that
Sub-Trust. The assets so distributable to the Shareholders of any particular
Sub-Trust shall be distributed among such Shareholders in proportion to the
number of Shares of that Sub-Trust held by them and recorded on the books of the
Trust. The liquidation of any particular Sub-Trust may be authorized by vote of
a majority of the Trustees then in office subject to the approval of a majority
of the outstanding voting Shares of that Sub-Trust, as defined in the 1940 Act.
(e) Voting. On each matter submitted to a vote of the Shareholders, each
holder of a Share of each Sub-Trust shall be entitled to one vote for each whole
Share and to a proportionate fractional vote for each fractional Share standing
in his name on the books of the Trust and all Shares of each Sub-Trust entitled
to vote shall vote as a separate class except as otherwise required by the 1940
Act. As to any matter which does not affect the interest of a particular
Sub-Trust, only the holders of Shares of the one or more affected Sub-Trusts
shall be entitled to vote thereon.
(f) Redemption by Shareholder. Each holder of Shares of a particular
Sub-Trust shall have the right at such times as may be permitted by the Trust,
but no less frequently than once each week, to require the Trust to redeem all
or any part of his Shares of that Sub-Trust at a redemption price equal to the
net asset value per Share of that Sub-Trust next determined in accordance with
subsection (h) of this Section 4.2 after the Shares are properly tendered for
redemption. Payment of the redemption price shall be in cash; provided, however,
that if the Trustees determine, which determination shall be conclusive, that
conditions exist which make payment wholly in cash unwise or undesirable, the
Trust may, subject to the requirements of the 1940 Act, make payment wholly or
partly in securities or other assets belonging to the Sub-Trust of which the
Shares being redeemed are part at the value of such securities or assets used in
such determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the holders of Shares of any
Sub-Trust to require the Trust to
redeem Shares of that Sub-Trust during any period or at any time when and to the
extent permissible under the 1940 Act.
(g) Redemption by Trust. Each Share of each Sub-Trust that has been
established and designated is subject to redemption by the Trust at the
redemption price which would be applicable if such Share was then being redeemed
by the Shareholder pursuant to subsection (f) of this Section 4.2: (a) at any
time, if the Trustees determine in their sole discretion that failure to so
redeem may have materially adverse consequences to the holders of the Shares of
the Trust or any Sub-Trust thereof, or (b) upon such other conditions as may
from time to time be determined by the Trustees, including without limitation in
furtherance of subsection (i) of this Section 4.2, and set forth in the then
current Prospectus of the Trust with respect to maintenance of Shareholder
accounts of a minimum amount.
(h) Net Asset Value. The net asset value per Share of any Sub-Trust shall
be the quotient obtained by dividing the value of the net assets of that
Sub-Trust (being the value of the assets belonging to that Sub-Trust less the
liabilities belonging to that Sub-Trust) by the total number of Shares of that
Sub-Trust outstanding, all determined in accordance with the methods and
procedures, including without limitation those with respect to rounding,
established by the Trustees from time to time.
The Trustees may determine to maintain the net asset value per Share of any
Sub-Trust at a designated constant dollar amount and in connection therewith may
adopt procedures not inconsistent with the 1940 Act for the continuing
declarations of income attributable to that Sub-Trust as dividends payable in
additional Shares of that Sub-Trust at the designated constant dollar amount and
for the handling of any losses attributable to that Sub-Trust. Such procedures
may provide that in the event of any loss each Shareholder shall be deemed to
have contributed to the capital of the Trust attributable to that Sub-Trust his
pro rata portion of the total number of Shares required to be cancelled in order
to permit the net asset value per Share of that Sub-Trust to be maintained,
after reflecting such loss, at the designated constant dollar amount. Each
Shareholder of the Trust shall be deemed to have agreed, by his investment in
any Sub-Trust with respect to which the Trustees shall have adopted any such
procedure, to make the contribution referred to in the preceding sentence in the
event of any such loss.
(i) Transfer. Subject to the limitations set forth in Section 4.2(g) above,
and in the following paragraph, all Shares of each particular Sub-Trust shall be
freely transferable, but transfers of Shares of a particular Sub-Trust will be
recorded on the Share transfer records of the Trust applicable to that Sub-Trust
only at such times as Shareholders shall have the right to require the Trust to
redeem shares of that Sub-Trust and at such other times as may be permitted by
the Trustees.
(j) Equality. All Shares of each particular Sub-Trust shall represent an
equal proportionate interest in the assets belonging to that Sub-Trust (subject
to the liabilities belonging to that Sub-Trust), and each Share of any
particular Sub-Trust shall be equal to each other Share of that Sub-Trust; but
the provisions of this sentence shall not restrict any distinctions permissible
under subsection (c) of this Section 4.2 that may exist with respect to
dividends and distributions on Shares of the same Sub-Trust. The Trustees may
from time to time divide or combine the Shares of any particular Sub-Trust into
a greater or lesser number of Shares of that Sub-Trust without thereby changing
the proportionate beneficial interest in the
assets belonging to that Sub-Trust or in any way affecting the rights of Shares
of any other Sub-Trust.
(k) Fractions. Any fractional Share of any Sub-Trust, if any such
fractional Share is outstanding, shall carry proportionately all the rights and
obligations of a whole Share of that Sub-Trust, including rights and obligations
with respect to voting, receipt of dividends and distributions, redemption of
Shares, and liquidation of the Trust or any Sub-Trust.
(l) Conversion Rights. Subject to compliance with the requirements of the
1940 Act, the Trustees shall have the authority to provide that holders of
Shares of any Sub-Trust shall have the right to convert said Shares into Shares
of one or more other Sub-Trust in accordance with such requirements and
procedures as may be established by the Trustees.
Section 4.3 Establishment and Designation of Classes of the Sub-Trusts.
Without limiting the authority of the Trustees set forth in Section 4.1 of this
Agreement to establish and designate any further Sub-Trusts and Classes of
Sub-Trusts, and without affecting the rights and preferences of existing
Sub-Trusts and Classes, the Trustees hereby establish and designate the
following Classes for the Sub-Trusts listed below:
Premier
Sub-Trust Class Class Class Class Class Class Class Class Class
A B C D E I S Y
Aggressive Strategy Fund X X X X X X
Balanced Strategy Fund X X X X X X
Conservative Strategy Fund X X X X X X
Diversified Bond Fund X X X X X
Diversified Equity Fund X X X X X
Emerging Markets Fund X X X X X
Emerging Market Securities Fund X
Equity Aggressive Strategy Fund X X X X X X
Equity I Fund X X X X
Equity II Fund X X X X
Equity III Fund X X X X
Equity Income Fund X X X X X
Equity Q Fund X X X X X
Fixed Income I Fund X X X X
Fixed Income III Fund X X X X
International Fund X X X X
International Securities Fund X X X X X
Moderate Strategy Fund X X X X X X
Money Market Fund X X X
Multistrategy Bond Fund X X X X X
Municipal Bond I Fund X
Municipal Bond II Fund X
Quantitative Equity Fund X X X X X
Real Estate Securities Fund X X X X X X X
▇▇▇▇▇▇▇ 1000 Index Fund X
Select Growth Fund X X X X X X X
Select Value Fund X X X X X X X
Short-Term Bond Fund X X X X X X X X
Special Growth Fund X X X X X
Tax Exempt Bond Fund X X X X X
Tax Free Money Market Fund X X X
Tax-Managed Aggressive
Strategy Fund X X X
Tax-Managed Conservative
Strategy Fund X X X
Tax-Managed Global Equity Fund X X X X X
Tax-Managed Large Cap Fund X X X X X
Tax-Managed Mid & Small Cap Fund X X X X X
Tax-Managed Moderate Strategy Fund X X X
Tax-Managed Overseas Equity Fund X X X X X X X
US Government Money Market Fund X
The Trustees direct that each Class of Shares of each Sub-Trust shall have
all the relative rights and preferences set forth below, shall represent an
equal proportionate interest in the underlying assets and liabilities of such
Sub-Trust, and shall generally have identical voting, dividend, liquidation and
other rights, preferences, powers, restrictions, limitations, obligations,
qualifications and terms and conditions as all other Shares of such Sub-Trust,
except that:
- each Class B, Class C and Class D Share offered in connection with a
Distribution Plan will bear, as a charge against distributable income
or gains or as a reduction in interest, certain fees under its
Distribution Plan and will have exclusive voting rights on matters
pertaining to the Distribution Plan of the Class and any related
agreements;
- each Class A, Class B, Class C, Class D and Class E Share offered in
connection with a Shareholder Services Plan will bear, as a charge
against distributable income or gains or as a reduction in interest,
certain fees under its respective Shareholder Services Plan and will
have exclusive voting rights on matters pertaining to the Shareholder
Services Plan of the Class and any related agreements;
- each Class of Shares of a Sub-Trust shall contain such conversion
feature as may be required to comply with regulations applicable to
the Sub-Trust or to the issuance of Shares of the Sub-Trust;
- each Class of Shares of a Sub-Trust will bear, as a charge against
distributable income or gains or as a reduction in interest, differing
amounts of certain expenses attributable to the Class;
- the Trustees shall provide for differing payments of dividends from
income or distributions of gains on a Class of Shares of a Sub-Trust
to reflect different charges against such income or gains or otherwise
to equalize the net asset values of the Classes or, in the absence of
such policies, the net asset value per share of different Classes of a
Sub-Trust may differ at certain times;
- each Class of Shares of a Sub-Trust may be accorded such different
exchange privileges from Shares of another Class as the Board may deem
proper from time to time;
- each Class of Shares of a Sub-Trust shall be subject to such different
conditions of redemption, as shall be set forth in the Trust's
registration statement from time to time;
- each Share of any Class of a Sub-Trust will vote exclusively on
matters solely affecting Shares of that Class, and shall not vote upon
matters which do not affect such Class;
- each Class of Shares of a Sub-Trust will have a different class
designation from any other Class of that Sub-Trust; and
- each Class of Shares of a Sub-Trust may have such additional rights
and preferences, or be subject to such restrictions and
qualifications, as the Trustees by resolution may determine,
consistent with the provisions of the 1940 Act and the Internal
Revenue Code, as amended, and not otherwise identified above.
Section 4.4 Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust or of a transfer or similar agent for the Trust, which
books shall be maintained separately for the Shares of each Sub-Trust that has
been established and designated. No certificates certifying the ownership of
Shares need be issued except as the Trustees may otherwise determine from time
to time. The Trustees may make such rules as they consider appropriate for the
issuance of Share certificates, the use of facsimile signatures, the transfer of
Shares and similar matters. The record books of the Trust as kept by the Trust
or any transfer or similar agent, as the case may be, shall be conclusive as to
who are the Shareholders and as to the number of Shares of each Sub-Trust held
from time to time by each such Shareholder.
Section 4.5 Investments in the Trust. The Trustees may accept investments
in the Trust and each Sub-Trust thereof from such persons and on such terms and
for such consideration, not inconsistent with the provisions of the 1940 Act, as
they from time to time authorize. The Trustees may authorize any distributor,
principal underwriter, custodian, transfer agent or other person to accept
orders for the purchase of Shares that conform to such authorized terms and to
reject any purchase orders for Shares whether or not conforming to such
authorized terms.
To the extent permitted by the 1940 Act and to the extent that the
portfolio management and operations of any money market Sub-Trust are not
adversely affected, each Sub-Trust other than such money market Sub-Trusts, may
invest its cash assets in Shares of any money market Sub-Trust to the extent
permitted by the then current Prospectus applicable to such Sub-Trust. For all
Trust purposes, such investments in any money market Sub-Trust by other
Sub-Trusts will be deemed the issuance of Shares by such money market Sub-Trusts
to the Sub-Trusts and the withdrawal of such investments will be deemed a
redemption of Shares of such money market Sub-Trusts. Similarly, each of the
other Sub-Trusts will deem such an investment a purchase or redemption of Shares
of such money market Sub-Trusts. Any Sub-Trust investing in any money market
Sub-Trust pursuant to this procedure, will participate equally on a pro-rata
basis in all income, capital gains and net assets of such money market
Sub-Trusts and will have all rights and obligations of a Shareholder as provided
in this Declaration of Trust, including voting rights hereunder provided,
however, that such Shares of such money market Sub-Trusts issued to such other
Sub-Trusts shall be voted by the Trustees in the same proportion as the Shares
of such money market Sub-Trusts which are not held by the other Sub-Trusts.
Section 4.6 No Pre-emptive Rights. Shareholders shall have no pre-emptive
or other right to subscribe to any additional Shares or other securities issued
by the Trust.
Section 4.7 Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof and to have
become a party hereto. The death of a Shareholder during the continuance of the
Trust shall not operate to terminate the Trust or any Sub-Trust thereof nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
only to the rights of said decedent under this Trust. Ownership of Shares shall
not entitle the Shareholder to any title in or to the whole or any part of the
Trust property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust shall have any power to bind personally any Shareholder, nor except
as specifically provided herein to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 Voting Powers. The Shareholders shall have power to vote only
(i) for the election or removal of Trustees as provided in Section 3.1, (ii)
with respect to any contract with a Contracting Party as provided in Section 3.3
as to which Shareholder approval is required by the 1940 Act, (iii) with respect
to any termination or reorganization of the Trust or any Sub-Trust to the extent
and as provided in Sections 7.1 and 7.2, (iv) with respect to any amendment of
this Declaration of Trust to the extent and as provided in Section 7.3, (v) to
the same extent as the stockholders of a Massachusetts business corporation as
to whether or not a court action, proceeding or claim should or should not be
brought or maintained derivatively or as a class action on behalf of the Trust
or any Sub-Trust thereof or the Shareholders (provided, however, that a
shareholder of a particular Sub-Trust shall not be entitled to a derivative or
class action on behalf of any other Sub-Trust (or shareholder of any other
Sub-Trust) of the Trust) and (vi) with respect to such additional matters
relating to the Trust as may be required by the 1940 Act, this Declaration of
Trust, the By-Laws or any registration of the Trust with the Commission (or any
successor agency) or any state, or as the Trustees may consider necessary or
desirable. There shall be no cumulative voting in the election of Trustees.
Shares may be voted in person or by proxy. A proxy with respect to Shares held
in the name of two or more persons shall be valid if executed by any one of them
unless at or prior to exercise of the proxy the Trust receives a specific
written notice to the contrary from any one of them. A proxy purporting to be
executed by or on behalf of a Shareholder shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest on the challenger. Until Shares are issued, the Trustees may exercise
all rights of Shareholders and may take any action required by law, this
Declaration of Trust or the By-Laws to be taken by Shareholders.
Section 5.2 Meetings. No annual or regular meeting of Shareholders is
required. Special meetings of Shareholders may be called by the Trustees from
time to time for the purpose of taking action upon any matter requiring the vote
or authority of the Shareholders as herein
provided or upon any other matter deemed by the Trustees to be necessary or
desirable. Written notice of any meeting of Shareholders shall be given or
caused to be given by the Trustees by mailing or transmitting such notice at
least seven days before such meeting, postage prepaid, stating the time, place
and purpose of the meeting, to each Shareholder at the Shareholder's address as
it appears on the records of the Trust. The Trustees shall promptly call and
give notice of a meeting of Shareholders for the purpose of voting upon removal
of any Trustee of the Trust when requested to do so in writing by Shareholders
holding not less than 10% of the Shares then outstanding. If the Trustees shall
fail to call or give notice of any meeting of Shareholders for a period of 30
days after written application by Shareholders holding at least 10% of the
Shares then outstanding requesting a meeting be called for any other purpose
requiring action by the Shareholders as provided herein or in the By-Laws, then
Shareholders holding at least 10% of the Shares then outstanding may call and
give notice of such meeting, and thereupon the meeting shall be held in the
manner provided for herein in case of call thereof by the Trustees.
Section 5.3 Record Dates. (a) For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, or for the purpose of any other action, the Trustees may, from time to
time, close the transfer books for such period, not exceeding thirty days
(except at or in connection with the termination of the Trust), as the Trustees
may determine; or without closing the transfer books the Trustees may fix a date
and time not more than ninety days prior to the date of any meeting of
Shareholders or other action as the date and time of record for the
determination of Shareholders entitled to vote at such meeting or any
adjournment thereof held not more than one hundred and twenty days after such
record date, or to be treated as Shareholders of record for purposes of such
other action, and any Shareholder who was a Shareholder at the date and time so
fixed shall be entitled to vote at such meeting or any adjournment thereof or to
be treated as a Shareholder of record for purposes of such other action, even
though he has since that date and time disposed of his Shares, and no
Shareholder becoming such after that date and time shall be so entitled to vote
at such meeting or any adjournment thereof or to be treated as a Shareholder of
record for purposes of such other action.
(b) For the purpose of determining the Shareholders who are entitled to
participate in any dividend or distribution, the Trustees may, from time to
time, close the transfer books for such period, not exceeding thirty days
(except at or in connection with the termination of the Trust), as the Trustees
may determine; or without closing the transfer books the trustees may fix a date
and time not more than sixty days prior to the date of any dividend or
distribution as the date and time of record for the determination of
Shareholders entitled to be treated as Shareholders of record for purposes of
such dividend or distribution as the date and time of record for the
determination of Shareholders entitled to be treated as Shareholders of record
for purposes of such dividend or distribution, even though such Shareholder has
since that date and time disposed of its Shares, and no Shareholder becoming
such after that date and time shall be so entitled to be treated as a
Shareholder of record for purposes of such dividend or distribution."
Section 5.4 Quorum and Required Vote. A majority of the Shares entitled to
vote shall be a quorum for the transaction of business at a Shareholders'
meeting, but any lesser number shall be sufficient for adjournments. Any
adjourned session or sessions may be held, within a reasonable time after the
date set for the original meeting without the necessity of further notice. A
majority of the Shares voted, at a meeting of which a quorum is present shall
decide any questions and a plurality shall elect a Trustee, except when a
different vote is required or permitted by any provision of the 1940 Act or
other applicable law or by this Declaration of Trust or the By-Laws.
Section 5.5 Action by Written Consent. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if a majority of Shareholders entitled to vote on the matter
(or such larger proportion thereof as shall be required by the 1940 Act or by
any express provision of this Declaration of Trust or the By-Laws) consent to
the action in writing and such written consents are filed with the records of
the meetings of Shareholders. Such consent shall be treated for all purposes as
a vote taken at a meeting of Shareholders.
Section 5.6 Inspection of Records. The records of the Trust shall be open
to inspection by Shareholders to the same extent as is permitted stockholders of
a Massachusetts business corporation under the Massachusetts Business
Corporation Law.
Section 5.7 Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
Section 5.8 Shareholder Communications. Whenever ten or more Shareholders
of record who have been such for at least six months preceding the date of
application, and who hold in the aggregate either Shares having a net asset
value of at least $25,000 or at least 1% of the outstanding Shares, whichever is
less, shall apply to the Trustees in writing, stating that they wish to
communicate with other Shareholders with a view to obtaining signatures to a
request for a Shareholder meeting and accompanied by a form of communication and
request which they wish to transmit, the Trustees shall within five business
days after receipt of such application either (1) afford to such applicants
access to a list of the names and addresses of all Shareholders as recorded on
the books of the Trust or Sub-Trust, as applicable; or (2) inform such
applicants as to the approximate number of Shareholders of record, and the
approximate cost of mailing to them the proposed communication and form of
request.
If the Trustees elect to follow the course specified in clause (2) above,
the Trustees, upon the written request of such applicants, accompanied by a
tender of the material to be mailed and of the reasonable expenses of mailing,
shall, with reasonable promptness, mail such material to all Shareholders of
record at their addresses as recorded on the books, unless within five business
days after such tender the Trustees shall mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a written
statement signed by at least a majority of the Trustees to the effect that in
their opinion either such material contains untrue statements of fact or omits
to state facts necessary to make the statements contained therein not
misleading, or would be in violation of applicable law, and specifying the basis
of such opinion. The Trustees shall thereafter comply with any order entered by
the Commission and the requirements of the 1940 Act and the Securities Exchange
Act of 1934.
ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 6.1 Trustees, Trustees Emeritus, Shareholders, etc. Not Personally
Liable; Notice. All persons extending credit to, contracting with or having any
claim against the Trust shall look only to the assets of the Sub-Trust with
which such person dealt for payment under such credit, contract or claim; and
neither the Shareholders of any Sub-Trust nor the Trustees, nor the Trustees
Emeritus, nor any of the Trust's officers, employees or agents, whether past,
present or future, nor any other Sub-Trust shall be personally liable therefor.
Every note, bond, contract, instrument, certificate or undertaking and every
other act or thing whatsoever executed or done by or on behalf of the Trust, any
Sub-Trust or the Trustees or Trustees Emeritus or any of them in connection with
the Trust shall be conclusively deemed to have been executed or done only by or
for the Trust (or the Sub-Trust) or the Trustees or the Trustees Emeritus and
not personally. Nothing in this Declaration of Trust shall protect any Trustee,
Trustee Emeritus or officer against any liability to the Trust or the
Shareholders to which such Trustee, Trustee Emeritus or officer would otherwise
be subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee, Trustee Emeritus or of such officer.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officers or officer shall give notice that this
Declaration of Trust is on file with the Secretary of The Commonwealth of
Massachusetts and shall recite to the effect that the same was executed or made
by or on behalf of the Trust or by them as Trustees or Trustee or as officers or
officer and not individually and that the obligations of such instrument are not
binding upon any of them or the Shareholders individually but are binding only
upon the assets and property of the Trust, or the particular Sub-Trust in
question, as the case may be, but the omission thereof shall not operate to bind
any Trustees or Trustee or officers or officer or Shareholders or Shareholder
individually.
Section 6.2 Trustees' and Trustees' Emeritus Good Faith Action; Expert
Advice; No Bond or Surety. The exercise by the Trustees of their powers and
discretions hereunder shall be binding upon everyone interested. A Trustee or
Trustee Emeritus shall be liable for his or her own willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee or Trustee Emeritus, and for nothing else, and
shall not be liable for errors of judgment or mistakes of fact or law. Subject
to the foregoing, (a) the Trustees or Trustees Emeritus shall not be responsible
or liable in any event for any neglect or wrongdoing of any officer, agent,
employee, consultant, adviser administrator, distributor or principal
underwriter, custodian or transfer, dividend disbursing, Shareholder servicing
or accounting agent of the Trust, nor shall any Trustee or Trustee Emeritus be
responsible for the act or omission of any other Trustee or Trustee Emeritus;
(b) the Trustees or Trustees Emeritus may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust
and their duties as Trustees or Trustees Emeritus, and shall be under no
liability for any act or omission in accordance with such advice or for failing
to follow such advice; and (c) in discharging their duties, the Trustees or
Trustees Emeritus, when acting in good faith, shall be entitled to rely upon the
books of account of the Trust and upon written reports made to the Trustees or
Trustees Emeritus by any officer appointed by them, any independent public
accountant, and (with respect to the subject matter of the contract involved)
any officer, partner or responsible employee of a Contracting Party appointed by
the Trustees or
Trustees Emeritus pursuant to Section 3.3. The Trustees or Trustees Emeritus as
such shall not be required to give any bond or surety or any other security for
the performance of their duties.
Section 6.3 Indemnification of Shareholders. In case any Shareholder (or
former Shareholder) of any Sub-Trust of the Trust shall-be charged or held to be
personally liable for any obligation or liability of the Trust solely by reason
of being or having been a Shareholder and not because of such Shareholder's acts
or omissions or for some other reason, said Sub-Trust (upon proper and timely
request by the Shareholder) shall assume the defense against such charge and
satisfy any judgment thereon, and the Shareholder or former Shareholder (or his
heirs, executors, administrators or other legal representatives or in the case
of a corporation or other entity, its corporate or other general successor)
shall be entitled out of the assets of said Sub-Trust estate to be held harmless
from and indemnified against all loss and expense arising from such liability.
Section 6.4 Indemnification of Trustees, Trustees Emeritus, Officers, etc.
The Trust shall indemnify (from the assets of the Sub-Trust or Sub-Trusts in
question) each of its Trustees, Trustees Emeritus and officers (including
persons who serve at the Trust's request as directors, officers, trustees or
trustees emeritus of another organization in which the Trust has any interest as
a shareholder, creditor or otherwise (hereinafter referred to as a "Covered
Person") against all liabilities, including but not limited to amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and
expenses, including reasonable accountants' and counsel fees, incurred by any
Covered Person in connection with the defense or disposition of any action, suit
or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which such Covered Person may be or may
have been involved as a party or otherwise or with which such person may be or
may have been threatened, while in office or thereafter, by reason of being or
having been such a Trustee, Trustee Emeritus or officer, director, trustee or
trustee emeritus, except with respect to any matter as to which it has been
determined that such Covered Person (i) did not act in good faith in the
reasonable belief that such Covered Person's action was in or not opposed to the
best interests of the Trust or (ii) had acted with willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office (either and both of the conduct
described in (i) and (ii) being referred to hereafter as "Disabling Conduct"). A
determination that the Covered Person is entitled to indemnification may be made
by (i) a final decision on the merits by a court or other body before whom the
proceeding was brought that the person to be indemnified was not liable by
reason of Disabling Conduct, (ii) dismissal of a court action or an
administrative proceeding against a Covered Person for insufficiency of evidence
of Disabling Conduct, or (iii) a reasonable determination, based upon a review
of the facts, that the Covered Person was not liable by reason of Disabling
Conduct by (a) a vote of a majority of a quorum of Trustees who are neither
"interested persons" of the Trust as defined in section 2(a)(19) of the 1940 Act
nor parties to the proceeding, or (b) an independent legal counsel in a written
opinion. Expenses, including accountants' and counsel fees so incurred by any
such Covered Person (but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), may be paid from time to time by the
Sub-Trust in question in advance of the final disposition of any such action,
suit or proceeding, provided that the Covered Person shall have undertaken to
repay the amounts so paid to the Sub-Trust in question if it is ultimately
determined that indemnification of such expenses is not authorized under this
Article VI and (i) the Covered Person shall have provided security for such
undertaking, (ii) the Trust shall be insured against losses arising by reason of
any lawful advances, or (iii) a majority of a quorum of the disinterested
Trustees who are not a party to the proceeding, or an independent legal counsel
in a written opinion, shall have
determined, based on a review of readily available facts (as opposed to a full
trial-type inquiry), that there is reason to believe that the Covered Person
ultimately will be found entitled to indemnification.
Section 6.5 Compromise Payment As to any matter disposed of by a compromise
payment by any such Covered Person referred to in Section 6.4, pursuant to a
consent decree or otherwise, no such indemnification either for said payment or
for any other expenses shall be provided unless such indemnification shall be
approved (a) by a majority of the disinterested Trustees who are not a party to
the proceeding or (b) by an independent legal counsel in a written opinion.
Approval by the Trustees pursuant to clause (a) or by independent legal counsel
pursuant to clause (b) shall not prevent the recovery from any Covered Person of
any amount paid to such Covered Person in accordance with any of such clauses as
indemnification if such Covered Person is subsequently adjudicated by a court of
competent jurisdiction not to have acted in good faith in the reasonable belief
that such Covered Person's action was in or not opposed to the best interests of
the Trust or to have been liable to the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Covered Person's office.
Section 6.6 Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article VI shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used in
this Article VI; "Covered Person" shall include such person's heirs, executors
and administrators, an "interested Covered Person" is one against whom the
action, suit or other proceeding in question or another action, suit or other
proceeding on the same or similar grounds is then or has been pending or
threatened, and a "disinterested" person is a person against whom none of such
actions, suits or other proceedings or another action, suit or other proceeding
on the same or similar grounds is then or has been pending or threatened.
Nothing contained in this article shall affect any rights to indemnification to
which personnel of the Trust, other than Trustees, Trustees Emeritus and
officers, and other persons may be entitled by contract or otherwise under law,
nor the power of the Trust to purchase and maintain liability insurance on
behalf of any such person.
Section 6.7 Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time and,
without limiting the generality of the foregoing, no change, alteration or
modification with respect to any Sub-Trust shall operate to terminate the Trust.
The Trust may be terminated at any time by a majority of the Trustees then in
office subject to a favorable vote of a majority of the outstanding voting
securities, as defined in the 1940 Act, Shares of each Sub-Trust voting
separately by Sub-Trust.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may be
determined by the Trustees, the
Trust shall in accordance with such procedures as the Trustees consider
appropriate reduce the remaining assets to distributable form in cash,
securities or other property, or any combination thereof, and distribute the
proceeds to the Shareholders, in conformity with the provisions of subsection
(d) of Section 4.2.
Section 7.2 Reorganization. The Trustees may sell, convey, merge and
transfer the assets of the Trust, or the assets belonging to any one or more
Sub-Trusts, to another trust, partnership, association or corporation organized
under the laws of any state of the United States, or to the Trust to be held as
assets belonging to another Sub-Trust of the Trust, in exchange for cash, shares
or other securities (including, in the case of a transfer to another Sub-Trust
of the Trust, Shares of such other Sub-Trust) with such transfer either (1)
being made subject to, or with the assumption by the transferee of, the
liabilities belonging to each Sub-Trust the assets of which are so transferred,
or (2) not being made subject to, or not with the assumption of, such
liabilities; provided, however, that no assets belonging to any particular
Sub-Trust shall be so transferred unless the terms of such transfer shall have
first been approved at a meeting called for the purpose by the affirmative vote
of the holders of a majority of the outstanding voting Shares, as defined in the
1940 Act, of that Sub-Trust. Following such transfer, the Trustees shall
distribute such cash, shares or other securities (giving due effect to the
assets and liabilities belonging to and any other differences among the various
Sub-Trusts the assets belonging to which have so been transferred) among the
Shareholders of the Sub-Trust the assets belonging to which have been so
transferred; and if all of the assets of the Trust have been so transferred, the
Trust shall be terminated.
The Trust, or any one or more Sub-Trusts, may, either as the successor,
survivor, or non-survivor, (1) consolidate with one or more other trusts,
partnerships, associations or corporations organized under the laws of the
Commonwealth of Massachusetts or any other state of the United States, to form a
new consolidated trust, partnership, association or corporation under the laws
of which any one of the constituent entities is organized, or (2) merge into one
or more other trusts, partnerships, associations or corporations organized under
the laws of the Commonwealth of Massachusetts or any other state of the United
States, or have one or more such trusts, partnerships, associations or
corporations merged into it, any such consolidation or merger to be upon such
terms and conditions as are specified in an agreement and plan of reorganization
entered into by the Trust, or one or more Sub-Trusts as the case may be, in
connection therewith. The terms merge" or "merger" as used herein shall also
include the purchase or acquisition of any assets of any other trust,
partnership, association or corporation which is an investment company organized
under the laws of the Commonwealth of Massachusetts or any other state of the
United States. Any such consolidation or merger shall require the affirmative
vote of the holders of a majority of the outstanding voting Shares, as defined
in the 1940 Act, of each Sub-Trust which may reasonably be foreseen to be
materially adversely affected thereby.
Section 7.3 Amendments. All rights granted to the Shareholders under this
Declaration of Trust are granted subject to the reservation of the right to
amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any Shareholder or Trustee
or repeal the prohibition of assessment upon the Shareholders without the
express consent of each Shareholder or Trustee involved. Subject to the
foregoing, the provisions of this Declaration of Trust (whether or not related
to the rights of Shareholders) may be amended at any time, so long as such
amendment does not adversely affect the rights of any Shareholder with respect
to which such amendment is or purports to be applicable and so
long as such amendment is not in contravention of applicable law, including the
1940 Act, by an instrument in writing signed by a majority of the then Trustees
(or by an officer of the Trust pursuant to the vote of a majority of such
Trustees). Any amendment to this Declaration of Trust that adversely affects the
rights of Shareholders may be adopted at any time by an instrument in writing
signed by a majority of the then Trustees (or by an officer of the Trust
pursuant to a vote of a majority of such Trustees) when authorized to do so by
the vote in accordance with subsection (e) of Section 4.2 of Shareholders
holding a majority of the Shares entitled to vote. Subject to the foregoing, any
such amendment shall be effective as provided in the instrument containing the
terms of such amendment or, if there is no provision therein with respect to
effectiveness, upon the execution of such instrument and of a certificate (which
may be a part of such instrument) executed by a Trustee or officer of the Trust
to the effect that such amendment has been duly adopted.
Section 7.4 Filing of Copies; References; Headings. The original or a copy
of this instrument and of each amendment hereto shall be kept at the office of
the Trust where it may be inspected by any Shareholder. A copy of this
instrument and of each amendment hereto shall be filed by the Trust with the
Secretary of The Commonwealth of Massachusetts and with the Boston City Clerk,
as well as any other governmental office where such filing may from time to time
be required, but the failure to make any such filing shall not impair the
effectiveness of this instrument or any such amendment. Anyone dealing with the
Trust may rely on a certificate by an officer of the Trust as to whether or not
any such amendments have been made, as to the identities of the Trustees and
officers, and as to any matters in connection with the Trust hereunder; and,
with the same effect as if it were the original, may rely on a copy certified by
an officer of the Trust to be a copy of this instrument or of any such
amendments. In this instrument and in any such amendment, references to this
instrument, and all expressions like "herein", "hereof" and "hereunder" shall be
deemed to refer to this instrument as a whole as the same may be amended or
affected by any such amendments. The masculine gender shall include the feminine
and neuter genders. Headings are placed herein for convenience of reference only
and shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. This instrument may be executed in
any number of counterparts each of which shall be deemed an original.
Section 7.5 Applicable Law. This Declaration of Trust is made in The
Commonwealth of Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said Commonwealth,
including the Massachusetts Business Corporation Law as the same may be amended
from time to time, to which reference is made with the intention that matters
not specifically covered herein or as to which an ambiguity may exist shall be
resolved as if the Trust were a business corporation organized in Massachusetts,
but the reference to said Business Corporation Law is not intended to give the
Trust, the Trustees, the Shareholders or any other person any right, power,
authority or responsibility available only to or in connection with an entity
organized in corporate form. The Trust shall be of the type referred to in
Section 1 of Chapter 182 of the Massachusetts General Laws and of the type
commonly called a Massachusetts business trust, and without limiting the
provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals
for themselves and their assigns, this 19th day of August, 2002. This instrument
may be executed in one or more counterparts, all of which shall together
constitute a single instrument.
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