Exhibit 1
CORE TRUST (DELAWARE)
TRUST INSTRUMENT
AS AMENDED AND RESTATED NOVEMBER 1, 1994
TABLE OF CONTENTS
Page
ARTICLE I -- THE TRUST
Section 1.1 Name........................................................................... 1
Section 1.2 Definitions.................................................................... 1
ARTICLE II -- TRUSTEES AND OFFICERS
Section 2.1 Number and Qualification....................................................... 3
Section 2.2 Term and Election.............................................................. 3
Section 2.3 Resignation and Removal........................................................ 3
Section 2.4 Vacancies...................................................................... 3
Section 2.5 Meetings....................................................................... 3
Section 2.6 Committees..................................................................... 4
Section 2.7 By-Laws........................................................................ 5
Section 2.8 Officers of the Trust.......................................................... 5
Section 2.9 Election, Tenure and Removal of Officers....................................... 5
Section 2.10 Chairman, President and Vice Presidents....................................... 5
Section 2.11 Secretary..................................................................... 6
Section 2.12 Treasurer..................................................................... 6
Section 2.13 Other Officers and Duties..................................................... 6
ARTICLE III -- POWERS OF TRUSTEES
Section 3.1 General........................................................................ 6
Section 3.2 Investments.................................................................... 6
Section 3.3 Legal Title.................................................................... 7
Section 3.4 Sale of Interests.............................................................. 7
Section 3.5 Borrow Money................................................................... 7
Section 3.6 Delegation..................................................................... 7
Section 3.7 Collection and Payment......................................................... 7
Section 3.8 Expenses....................................................................... 7
Section 3.9 Miscellaneous Powers........................................................... 8
Section 3.10 Further Powers................................................................ 8
Section 3.11 Principal Transactions........................................................ 8
ARTICLE IV -- INVESTMENT MANAGEMENT, CUSTODIAL AND PRIVATE
PLACEMENT ARRANGEMENTS
Section 4.1 Investment Management and Other Arrangements................................... 8
Section 4.2 Custodial Arrangements......................................................... 9
Section 4.3 Parties to Contract............................................................ 9
Section 4.4 Compliance with 1940 Act....................................................... 9
ARTICLE V -- LIMITATIONS OF LIABILITY
Section 5.1 No Personal Liability of Trustees, Holders..................................... 9
Section 5.2 Indemnification................................................................ 10
Section 5.3 No Bond Required of Trustees................................................... 11
Section 5.4 No Duty of Investigation; Notice in Trust Instruments, etc..................... 11
Section 5.5 Reliance on Experts, etc....................................................... 12
ARTICLE VI -- INTERESTS OF THE TRUST
Section 6.1 Interests...................................................................... 12
Section 6.2 Rights of Holders.............................................................. 12
Section 6.3 Purchase of or Increase in Interests........................................... 12
Section 6.4 Register of Interests.......................................................... 12
Section 6.5 Non-Transferability............................................................ 12
Section 6.6 Notices........................................................................ 12
Section 6.7 Assent to Trust Instrument..................................................... 13
Section 6.8 Establishment of Series........................................................ 13
Section 6.9 ▇▇▇▇▇▇ and Liabilities of Series............................................... 13
ARTICLE VII -- DECREASES AND WITHDRAWALS
Section 7.1 Decreases and Withdrawals...................................................... 14
ARTICLE VIII -- DETERMINATION OF BOOK CAPITAL ACCOUNT
BALANCES, NET ASSET VALUE, ALLOCATIONS
AND DISTRIBUTIONS
Section 8.1 Book Capital Account Balances.................................................. 14
Section 8.2 Net Asset Value................................................................ 14
Section 8.3 Allocation of Net Profits and Net Losses....................................... 15
Section 8.4 Distributions.................................................................. 15
Section 8.5 Power to Modify Foregoing Procedures........................................... 15
ARTICLE IX -- HOLDERS
Section 9.1 Meetings of Holders............................................................ 15
Section 9.2 Notice of Meetings............................................................. 16
Section 9.3 Record Date for Meetings....................................................... 16
Section 9.4 Proxies, etc................................................................... 16
Section 9.5 Inspectors of Election......................................................... 16
Section 9.6 Inspection of Records.......................................................... 17
Section 9.7 Holder Action by Written Consent............................................... 17
Section 9.8 Voting Powers.................................................................. 17
ARTICLE X -- DURATION; TERMINATION; DISSOLUTION; AMENDMENT;
MERGERS; ETC.
Section 10.1 Termination of Trust or any Series............................................ 17
Section 10.2 Dissolution................................................................... 18
Section 10.3 Amendment Procedure........................................................... 18
Section 10.4 Merger or Consolidation....................................................... 19
Section 10.5 Incorporation................................................................. 19
ARTICLE XI -- MISCELLANEOUS
Section 11.1 Governing Law................................................................. 19
Section 11.2 Counterparts.................................................................. 20
Section 11.3 Reliance by Third Parties..................................................... 20
Section 11.4 Provisions in Conflict with Law on Regulations................................ 20
Section 11.5 Signatures.................................................................... 20
Section 11.6 Seal.......................................................................... 20
Section 11.7 Fiscal Year................................................................... 20
Section 11.8 Waivers of Notice............................................................. 20
Section 11.9 Reports....................................................................... 20
CORE TRUST (DELAWARE)
This TRUST INSTRUMENT of CORE TRUST (DELAWARE) is restated and amended
this 1st day of November, 1994 by the parties signatory hereto, as Trustees.
WHEREAS, having formed a business trust under the law of Delaware for
the investment and reinvestment of the Trust's assets the Trustees do desire to
amend and restate the Trust Instrument executed on September 1, 1994; and
WHEREAS, it is proposed that the trust assets be composed of money and
property contributed hereto by the holders of interests in the trust entitled to
ownership rights in the trust;
NOW, THEREFORE, the Trustees hereby declare that they will hold in
trust all money and property contributed to the trust fund to manage and dispose
of the same for the benefit of the holders of interests in the trust and subject
to the provisions hereof, to wit:
ARTICLE I
The Trust
1.1. Name. The name of the trust created hereby (the "Trust") shall be
"Core Trust (Delaware)," and so far as may be practicable the Trustees shall
conduct the Trust's activities, execute all documents and sue or be sued under
that name, which name (and the word "Trust" wherever hereinafter used) shall
refer to the Trustees as Trustees, and not individually, and shall not refer to
the officers, agents, employees or holders of interests in the Trust. However,
should the Trustees determine that the use of the name of the Trust is not
advisable, they may select such other name for the Trust as they deem proper and
the Trust may hold its property and conduct its activities under such other
name.
1.2. Definitions. As used in this Trust Instrument, the following terms
shall have the following meanings:
The terms "Affiliated Person," "Assignment" and "Interested Person"
shall have the meanings given them in the 1940 Act, as modified by any
applicable order or orders of the Commission or interpretive releases of the
Commission thereunder.
"Book Capital Account" shall mean, for any Holder of Interests in a
particular Series at any time, the Book Capital Account of the Holder with
respect to that Series for such day, determined in accordance with Article VIII
of this Instrument.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the Securities and Exchange Commission.
"Delaware Act" shall mean Chapter 38 of Title 12 of the Delaware Code
entitled "Treatment of Delaware Business Trusts," as it may be amended from time
to time.
"Fiscal Year" shall mean, with respect to any Series, an annual period
as determined by the Trustees.
"Holders" shall mean as of any particular time all holders of record of
Interests of a Series of the Trust at such time.
"Instrument" shall mean this Trust Instrument as amended from time to
time. References in this Instrument to "Instrument," "hereof," "herein" and
"hereunder" shall be deemed to refer to the Instrument rather than the article
or section in which such words appear.
"Interest(s)" shall mean, with respect to each Series, the interest of
a Holder in that Series, including all rights, powers and privileges accorded to
such Holders in this Instrument, which interest may be expressed as a
percentage, determined by calculating, at such times and on such basis, as the
Trustees shall from time to time determine, the ratio of each Holder's Book
Capital Account balance to the total of all Holders' Book Capital Account
balances in that Series. Reference herein to a specified percentage in, or
fraction of, Interests of the Holders in a Series means Holders whose combined
Book Capital Accounts represent such specified percentage or fraction of the
Book Capital Accounts of all Holders in that Series.
"Investment Manager" shall mean any person furnishing services to the
Trust or any Series pursuant to any investment management contract as described
in Section 4.1 hereof.
"Majority Interests Vote" shall mean, with respect to the Trust or a
Series thereof, the vote, at a meeting of the Holders of the Trust or Series, as
the case may be, of (i) 67% or more of the Interests present or represented at
such meeting, if the Holders of more than 50% of the Interests of the Trust or
Series, as the case may be, are present or represented by proxy or (ii) more
than 50% of the Interests of the Trust or Series, as the case may be, whichever
is less.
"Net Asset Value" shall have the meaning assigned to that term in
Section 8.2 hereof.
"Person" shall mean and include individuals, corporations,
partnerships, trusts, associations, joint ventures and other entities, whether
or not legal entities, and governments and agencies and political subdivisions
thereof.
"Registration Statement" shall mean the Registration Statement of the
Trust under the 1940 Act, as amended from time to time.
"Series" shall mean a series of Interests of the Trust established in
accordance with the provisions of Article VI, Section 6.8 hereof.
"Trustees" shall mean the signatories to this Instrument, so long as
they shall continue in office in accordance with the terms hereof, and all other
persons who at the time in question have been duly elected or appointed and have
qualified as trustees in accordance with the provisions hereof and are then in
office, who are herein referred to as the "Trustees," and reference in this
Instrument to a Trustee or Trustees shall refer to such person or persons in
their capacity as trustees hereunder.
"Trust Property" shall mean as of any particular time any and all
property, real or personal, tangible or intangible, which at such time is owned
or held by or for the account of the Trust or any Series, or the Trustees on
behalf of the Trust or any Series.
The "1940 Act" refers to the Investment Company Act of 1940, as amended
from time to time, and the rules and regulations thereunder.
ARTICLE II
Trustees and Officers
2.1. Number and Qualification. The number of Trustees shall be fixed
from time to time by the Trustees then in office, provided, however, that the
number of Trustees shall in no event be less than three or more than twelve. Any
vacancy created by an increase in Trustees may be filled by the appointment of
an individual having the qualifications described in this Article. Any such
appointment shall not become effective, however, until the individual appointed
shall have accepted such appointment and agreed to be bound by the terms of this
Instrument. No reduction in the number of Trustees shall have the effect of
removing any Trustee from office. Whenever a vacancy in the number of Trustees
shall occur, until such vacancy is filled as provided in Section 2.4 hereof, the
Trustees in office, regardless of their number, shall have all the powers
granted to the Trustees and shall discharge all the duties imposed upon the
Trustees by this Instrument.
2.2. Term and Election. Each Trustee named herein, or elected or
appointed hereunder, shall (except in the event of resignations or removals or
vacancies pursuant to Section 2.3 or 2.4 hereof) hold office until the Trustee's
successor has been elected and has qualified to serve as Trustee. Beginning with
the Trustees elected at the first meeting of Holders, each Trustee shall hold
office during the lifetime of this Trust and until its termination as
hereinafter provided unless such Trustee resigns or is removed as provided in
Section 2.3 below.
2.3. Resignation and Removal. Any Trustee may resign their trust
(without need for prior or subsequent accounting) by an instrument in writing
signed by him and delivered or mailed to the Chairman, if any, the President or
the Secretary and such resignation shall be effective upon such delivery, or at
a later date according to the terms of the instrument. Any of the Trustees may
be removed by the affirmative vote of the Holders of two-thirds (2/3) of the
Interests or (provided the aggregate number of Trustees, after such removal and
after giving effect to any appointment made to fill the vacancy created by such
removal, shall not be less than the number required by Section 2.1 hereof) with
cause, by the action of two-thirds of the remaining Trustees. Removal with cause
includes, but is not limited to, the removal of a Trustee due to physical or
mental incapacity. Upon the resignation or removal of a Trustee, or the
Trustee's otherwise ceasing to be a Trustee, the Trustee shall execute and
deliver such documents as the remaining Trustees shall require for the purpose
of conveying to the Trust or the remaining Trustees any Trust Property held in
the name of the resigning or removed Trustee. Upon the death of any Trustee or
upon removal or resignation due to any Trustee's incapacity to serve as trustee,
the Trustee's legal representative shall execute and deliver on the Trustee's
behalf such documents as the remaining Trustees shall require as provided in the
preceding sentence.
2.4. Vacancies. The term of office of a Trustee shall terminate and a
vacancy shall occur in the event of the death, resignation, adjudicated
incompetence or other incapacity to perform the duties of the office, or
removal, of a Trustee or increase in the number of Trustees. No such vacancy
shall operate to annul this Instrument or to revoke any existing agency created
pursuant to the terms of this Instrument. In the case of a vacancy, the Holders
of at least a majority of the Interests entitled to vote, acting at any meeting
of the Holders held in accordance with Section 9.1 hereof, or a majority vote of
the Trustees continuing in office, may fill such vacancy, and any Trustee so
elected by the Trustees or the Holders shall hold office as provided in this
Instrument.
2.5. Meetings.
(a) Meetings of the Trustees shall be held from time to time upon the
call of the Chairman, if any, the President, the Secretary, or any two Trustees.
The Trustees may act with or without a meeting. A quorum for all meetings of the
Trustees shall be a majority of the Trustees. Unless provided otherwise in this
Instrument, any action of the Trustees may be taken by vote of a majority of the
Trustees present (a quorum being present) at a meeting duly called or by
unanimous written consent of the Trustees without a meeting. In the absence of a
quorum, a majority of the Trustees present may adjourn the meeting from time to
time until a quorum shall be present. Notice of an adjourned meeting need not be
given. The Trustees by majority vote may delegate to any one or more of their
number their authority to approve particular matters or take particular actions
on behalf of the Trust.
(b) Regular meetings of the Trustees may be held without call or notice
at a time and place fixed by the Trustees. Notice of any other meeting shall be
given by mail, facsimile or telegram (which term shall include a cablegram) or
delivered personally, which shall include by telephone. Notice of a meeting
designating the time, date and place of such meeting shall be mailed not less
than 72 hours or otherwise given not less than 24 hours before the meeting but
may be waived in writing by any Trustee either before or after such meeting. The
attendance of a Trustee at a meeting shall constitute a waiver of notice of such
meeting except where a Trustee attends a meeting for the express purpose of
objecting, at the commencement of such meeting, to the transaction of any
business on the ground that the meeting has not been lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the Board of Trustees need be stated in the notice or waiver of
notice of such meeting, and no notice need be given of action proposed to be
taken by unanimous written consent.
(c) All or any one or more Trustees may participate in a meeting of the
Trustees or any committee thereof by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and participation in a meeting pursuant to such
communications system shall constitute presence in person at such meeting.
(d) The Chairman, if any, shall act as chairman at all meetings of the
Trustees; in the Chairman's absence the President shall act as chairman; and, in
the absence of the Chairman and the President, the Trustees present shall elect
one of their number to act as temporary chairman. The results of all actions
taken at a meeting of the Trustees, or by unanimous written consent of the
Trustees, shall be recorded by the Secretary.
(e) With respect to actions of the Trustees and any committee of the
Trustees, Trustees who are Interested Persons of the Trust or otherwise
interested in any action to be taken may be counted for quorum purposes under
this Section 2.5, or with respect to committees, Section 2.6 of this Instrument,
and shall be entitled to vote to the extent permitted by the 1940 Act.
2.6. Committees.
(a) Any committee of the Trustees may act with or without a meeting. A
quorum for all meetings of any committee shall be a majority of the members
thereof or such lesser number as determined by the Trustees. Unless provided
otherwise in this Instrument, any action of any committee may be taken by a vote
of a majority of the members present (a quorum being present) at a meeting or by
unanimous written consent of the members without a meeting or by telephone
meeting.
(b) The Trustees by vote of a majority of all the Trustees may elect
from their own number an Executive Committee to consist of not less than two (2)
to hold office at the pleasure of the Trustees, which shall have the power to
conduct the current and ordinary business of the Trust while the Trustees are
not in session, including the purchase and sale of securities and the
designation of securities to be delivered upon decrease or withdrawal of
Interests of the Trust or any Series, and such other powers of the Trustees as
the Trustees may, from time to time, delegate to them except those powers which
by law or this Instrument they are prohibited from delegating. The Trustees may
also elect from their own number other Committees from time to time, the number
composing such Committees, the powers conferred upon the same (subject to the
same limitations as with respect to the Executive Committee) and the term of
membership on such Committees to be determined by the Trustees. The Trustees may
designate a Chairman of any such Committee. In the absence of such designation,
the Committee may elect its own Chairman. Each Committee shall keep regular
minutes of its meetings and records of decisions taken without a meeting and
cause them to be recorded in a book designated for that purpose and kept in the
Office of the Trust.
(c) The Trustees may (1) provide for stated meetings of any Committee;
(2) specify the manner of calling and notice required for special meetings of
any Committee; (3) specify the number of members of a Committee required to
constitute a quorum and the number of members of a Committee required to
exercise specified powers delegated to such Committee; (4) authorize the making
of decisions to exercise specified powers by written assent of the requisite
number of members of a Committee without a meeting; and (5) authorize the
members of a Committee to meet by means of a telephone conference circuit.
2.7. By-Laws. The Trustees may, but need not, adopt By-Laws for
the conduct of the business of the Trust and may from time to time amend or
repeal any By-Laws.
2.8. Officers of the Trust. The Trustees shall, from time to time,
elect a President, a Secretary and a Treasurer. The Trustees may elect or
appoint, from time to time, a Chairman of the Board. The Trustees may elect or
appoint such other officers or assistant officers, including Vice Presidents, as
the business of the Trust may require. The Trustees may delegate to any officer
or committee the power to appoint any subordinate officers or agents. Any two or
more of the offices may be held by the same person, except that the same person
may not be both President and Secretary. The Trustees may designate a Vice
President as an Executive Vice President and may designate the order in which
the other Vice Presidents may act. The Chairman and the President shall be
Trustees, but no other officer of the Trust need be a Trustee. Any officer may
be required by the Trustees to be bonded for the faithful performance of the
officer's duties in such amount and with such sureties as the Trustees may
determine.
2.9. Election, Tenure and Removal of Officers. At the initial
organization meeting and thereafter at each annual meeting of the Trustees, the
Trustees shall elect the Chairman, if any, President, Secretary, Treasurer. The
Trustees may from time to time elect or appoint such other officers as the
Trustees shall deem necessary or appropriate in order to carry out the business
of the Trust and such officers shall hold office until the next annual meeting
of the Trustees and until their successors have been duly elected and qualified.
The Trustees also may authorize or appoint the President to appoint such other
officers as the Trustees shall deem necessary or appropriate in order to carry
out the business of the Trust. The Trustees may fill any vacancy in office or
add any additional officers at any time. Any officer may be removed at any time,
with or without cause, by action of a majority of the Trustees. This provision
shall not prevent the making of a contract of employment for a definite term
with any officer and shall have no effect upon any cause of action which any
officer may have as a result of removal in breach of a contract of employment.
Any officer may resign at any time by notice in writing signed by such officer
and delivered or mailed to the Chairman, if any, President, or Secretary, and
such resignation shall take effect immediately, or at a later date according to
the terms of such notice in writing.
2.10. Chairman, President, and Vice Presidents. The Chairman, if any,
shall, if present, preside at all meetings of the Holders and of the Trustees
and shall exercise and perform such other powers and duties as may be from time
to time assigned to him by the Trustees. Subject to such supervisory powers, if
any, as may be given by the Trustees to the Chairman, if any, the President
shall be the chief executive officer of the Trust and, subject to the control of
the Trustees, shall have general supervision, direction and control of the
business of the Trust and of its employees and shall exercise such general
powers of management as are usually vested in the office of President of a
corporation. In the absence of the Chairman, if any, the President shall preside
at all meetings of the Holders and the Trustees. Subject to direction of the
Trustees, the Chairman, if any, and the President shall each have power in the
name and on behalf of the Trust to execute any and all loan documents,
contracts, agreements, deeds, mortgages, and other instruments in writing, and
to employ and discharge employees and agents of the Trust. Unless otherwise
directed by the Trustees, the Chairman, if any, and the President shall each
have full authority and power, on behalf of all of the Trustees, to attend and
to act and to vote, on behalf of the Trust, at any meetings of business
organizations in which the Trust holds an interest, or to confer such powers
upon any other persons, by executing any proxies duly authorizing such persons.
The Chairman, if any, and the President shall have such further authorities and
duties as the Trustees shall from time to time determine. In the absence or
disability of the President, the Vice Presidents in order of their rank or the
Vice President designated by the Trustees, shall perform all of the duties of
President, and when so acting shall have all the powers of and be subject to all
of the restrictions upon the President. Subject to the direction of the
President, each Vice President shall have the power in the name and on behalf of
the Trust to execute any and all loan documents, contracts, agreements, deeds,
mortgages and other instruments in writing, and, in addition, shall have such
other duties and powers as shall be designated from time to time by the Trustees
or by the President.
2.11. Secretary. The Secretary shall keep the minutes of all meetings
of, and record all votes of, Holders, Trustees and the Executive Committee, if
any. The Secretary shall be custodian of the seal of the Trust, if any, and the
Secretary (and any other person so authorized by the Trustees) shall affix the
seal or, if permitted, a facsimile thereof, to any instrument executed by the
Trust which would be sealed by a Delaware corporation executing the same or a
similar instrument and shall attest the seal and the signature or signatures of
the officer or officers executing such instrument on behalf of the Trust. The
Secretary shall also perform any other duties commonly incident to such office
in a Delaware business corporation, and shall have such other authorities and
duties as the Trustees shall from time to time determine.
2.12. Treasurer. Except as otherwise directed by the Trustees, the
Treasurer shall have the general supervision of the monies, funds, securities,
notes receivable and other valuable papers and documents of the Trust, and shall
have and exercise under the supervision of the Trustees and of the President all
powers and duties normally incident to the President's office. The Treasurer may
endorse for deposit or collection all notes, checks and other instruments
payable to the Trust or to its order. The Treasurer shall deposit all funds of
the Trust as may be ordered by the Trustees or the Treasurer. The Treasurer
shall deliver all funds of the Trust which may come into the Treasurer's hands
to such Custodian as the Trustees may employ pursuant to Article V of these
By-Laws. The Treasurer shall keep accurate account of the books of the Trust's
transactions which shall be the property of the Trust, and which together with
all other property of the Trust in the Treasurer's possession, shall be subject
at all times to the inspection and control of the Trustees. Unless the Trustees
shall otherwise determine, the Treasurer shall be the principal accounting
officer of the Trust and shall also be the principal financial officer of the
Trust. The Treasurer shall have such other duties and authorities as the
Trustees or President shall from time to time determine. Notwithstanding
anything to the contrary herein contained, the Trustees may authorize any
investment adviser, administrator or manager to maintain bank accounts and
deposit and disburse funds on behalf of the Trust.
2.13. Other Officers and Duties. The Trustees may elect such other
officers and assistant officers as they shall from time to time determine to be
necessary or desirable in order to conduct the business of the Trust. Assistant
officers shall act generally in the absence of the officer whom they assist and
shall assist that officer in the duties of their office. Each officer, employee
and agent of the Trust shall have such other duties and authority as may be
conferred upon him by the Trustees or delegated to him by the President.
ARTICLE III
Powers of Trustees
3.1. General. The Trustees shall have exclusive and absolute control
over the Trust Property and over the business of the Trust to the same extent as
if the Trustees were the sole owners of the Trust Property and business in their
own right, but with such powers of delegation as may be permitted by this
Instrument. The Trustees may perform such acts as in their sole discretion are
proper for conducting the business of the Trust. The enumeration of any specific
power herein shall not be construed as limiting the aforesaid power. Such powers
of the Trustees may be exercised without order of or resort to any court.
3.2. Investments. The Trustees shall have power to:
(a) Conduct, operate and carry on the business of an investment
company;
(b) Subscribe for, invest in, reinvest in, purchase or otherwise
acquire, hold, pledge, sell, assign, transfer, exchange, distribute or otherwise
deal in or dispose of any form of property including United States and foreign
currencies and related instruments including forward contracts, and securities,
including common and preferred stocks, warrants, bonds, debentures, time notes
and all other evidences of indebtedness, negotiable or non-negotiable
instruments, obligations, certificates of deposit or indebtedness, commercial
paper, repurchase agreements, reverse repurchase agreements, convertible
securities, forward contracts, options, futures contracts, and other securities,
including, without limitation, those issued, guaranteed or sponsored by any
state, territory or possession of the United States and the District of Columbia
and their political subdivisions, agencies and instrumentalities, or by the
United States Government, any foreign government, or any agency, instrumentality
or political subdivision of the United States Government or any foreign
government, or international instrumentalities, or by any bank, savings
institution, corporation or other business entity organized under the laws of
the United States or under foreign laws; and to exercise any and all rights,
powers and privileges of ownership or interest in respect of any and all such
investments of every kind and description, including, without limitation, the
right to consent and otherwise act with respect thereto, with power to designate
one or more persons, firms, associations or corporations to exercise any of said
rights, powers and privileges in respect of any of said instruments; and the
Trustees shall be deemed to have the foregoing powers with the respect to any
additional securities in which the Trustees may determine to invest.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust, nor shall the Trustees be limited
by any law limiting the investments which may be made by fiduciaries.
3.3. Legal Title. Legal title to all the Trust Property shall be vested
in the Trustees as joint tenants except that the Trustees shall have the power
to cause legal title to any Trust Property to be held by or in the name of one
or more of the Trustees, or in the name of the Trust, or in the name of any
other Person on behalf of the Trust, on such terms as the Trustees may
determine.
The right, title and interest of the Trustees in the Trust Property
shall vest automatically in each person who may hereafter become a Trustee upon
the Trustee's due election and qualification. Upon the resignation, removal or
death of a Trustee, the Trustee shall automatically cease to have any right,
title or interest in any of the Trust Property, and the right, title and
interest of such Trustee in the Trust Property shall vest automatically in the
remaining Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered.
3.4. Sale of Interests. Subject to the more detailed provisions set
forth in Articles VII and VIII, the Trustees shall have the power to permit
persons to purchase Interests and to add to or reduce, in whole or in part,
their Interest in the Trust or any Series thereof.
3.5. Borrow Money. The Trustees shall have power to borrow money or
otherwise obtain credit and to secure the same by mortgaging, pledging or
otherwise subjecting as security the assets of the Trust, including the lending
of portfolio securities, and to endorse, guarantee or undertake the performance
of any obligation, contract or engagement of any other person, firm, association
or corporation.
3.6. Delegation. The Trustees shall have power, consistent with their
continuing exclusive authority over the management of the Trust and the Trust
Property, to delegate from time to time to such of their number or to officers,
employees or agents of the Trust the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient.
3.7. Collection and Payment. The Trustees shall have power to collect
all property due to the Trust; and to pay all claims, including taxes, against
the Trust Property; to prosecute, defend, compromise or abandon any claims
relating to the Trust Property; to foreclose any security interest securing any
obligations, by virtue of which any property is owed to the Trust; and to enter
into releases, agreements and other instruments.
3.8. Expenses. The Trustees shall have power to incur and pay all
expenses which in the opinion of the Trustees are necessary or incidental to
carry out any of the purposes of this Instrument, and to pay reasonable
compensation from the funds of the Trust or the assets of the appropriate Series
to themselves as Trustees. The Trustees shall fix the compensation of all
officers, employees and Trustees. The Trustees may pay themselves such
compensation for special services, including legal and brokerage services, as
they in good faith may deem reasonable, and reimbursement for expenses
reasonably incurred by themselves on behalf of the Trust or any Series thereof.
3.9. Miscellaneous Powers. The Trustees shall have the power to: (a)
employ or contract with such Persons as the Trustees may deem desirable for the
transaction of the business of the Trust and terminate such employees or
contractual relationships as they consider appropriate; (b) enter into joint
ventures, partnerships and any other combinations or associations; (c) purchase,
and pay for out of Trust Property or the assets of the appropriate Series,
insurance policies insuring the Investment Manager, placement agent, Holders,
Trustees, officers, employees, agents, or independent contractors of the Trust
against all claims arising by reason of holding any such position or by reason
of any action taken or omitted by any such Person in such capacity, whether or
not the Trust would have the power to indemnify such Person against such
liability; (d) establish pension, profit-sharing and other retirement, incentive
and benefit plans for any Trustees, officers, employees and agents of the Trust;
(e) make donations, irrespective of benefit to the Trust, for charitable,
religious, educational, scientific, civic or similar purposes; (f) to the extent
permitted by law, indemnify any Person with whom the Trust has dealings,
including the Investment Manager, placement agent, Holders, Trustees, officers,
employees, agents or independent contractors of the Trust, to such extent as the
Trustees shall determine; (g) guarantee indebtedness or contractual obligations
of others; (h) determine and change the Fiscal Year of each Series of the Trust
and the method in which its accounts shall be kept; (i) adopt a seal for the
Trust, but the absence of such seal shall not impair the validity of any
instrument executed on behalf of the Trust; (j) establish separate and distinct
Series with separately defined investment objectives and policies and distinct
investment purposes in accordance with the provisions of Article VI hereof; (k)
subject to the provisions of Section 3804 of the Delaware Act, allocate assets,
liabilities and expenses of the Trust to a particular Series or apportion the
same between or among two or more Series, provided that any liabilities or
expenses incurred by a particular Series shall be payable solely out of the
assets belonging to that Series as provided for in Article VI hereof; (l)
establish, from time to time, a minimum investment for Holders in the Trust or
in one or more Series, and require the withdrawal of any Holder whose investment
is less than such minimum upon giving notice to such Holder and; (m) appoint, or
authorize any officer or officers to appoint, one or more registrars of the
Trust.
3.10. Further Powers. The Trustees shall have power to conduct the
business of the Trust and carry on its operations in any and all of its branches
and maintain offices, whether within or without the State of Delaware, in any
and all states of the United States of America, in the District of Columbia, and
in any and all commonwealths, territories, dependencies, colonies, possessions,
agencies or instrumentalities of the United States of America and of foreign
governments, and to do all such other things and execute all such instruments as
they deem necessary, proper or desirable in order to promote the interests of
the Trust although such things are not herein specifically mentioned. Any
determination as to what is in the interests of the Trust made by the Trustees
in good faith shall be conclusive. In construing the provisions of this
Instrument, the presumption shall be in favor of a grant of power to the
Trustees. The Trustees will not be required to obtain any court order to deal
with Trust Property.
3.11. Principal Transactions. The Trustees may, on behalf of the Trust,
buy any securities from or sell any securities to, or lend any assets of the
Trust or any Series to, any Trustee or officer of the Trust or any firm of which
any such Trustee or officer is a member acting as principal, or have any such
dealings with any investment manager, placement agent or transfer agent for the
Trust or with any Interested Person of such person; and the Trust may employ any
such person, or firm or company in which such person is an Interested Person, as
broker, legal counsel, registrar, investment manager, placement agent, transfer
agent, dividend disbursing agent, custodian or in any other capacity upon
customary terms.
ARTICLE IV
Investment Management, Custodial
and Placement Agent Arrangements
4.1. Investment Management and Other Arrangements. The Trustees may in
their discretion, from time to time, enter into investment management contracts
or placement agent agreements with respect to the Trust or any Series whereby
the other party to such contract or agreement shall undertake to furnish the
Trustees such investment management, placement agent and/or other services as
the Trustees shall, from time to time, consider desirable and all upon such
terms and conditions as the Trustees may in their discretion determine.
Notwithstanding any provisions of this Instrument, the Trustees may authorize
any Investment Manager (subject to such general or specific instruments as the
Trustees may, from time to time, adopt) to effect purchases, sales, loans or
exchanges of Trust Property on behalf of the Trustees or may authorize any
officer, employee or Trustee to effect such purchases, sales, loans or exchanges
pursuant to recommendations of any such Investment Manager (and all without
further action by the Trustees). Any such purchases, sales, loans and exchanges
shall be deemed to have been authorized by all of the Trustees.
4.2. Custodial Arrangements.
(a) The Trustees shall at all times employ a bank, a company that is a
member of a national securities exchange, or a trust company, each having
capital, surplus and undivided profits of at least two million dollars
($2,000,000) as custodian with authority as the Trust's agent, but subject to
such restrictions, limitations and other requirements as the Trustees shall
determine (i) to hold the securities owned by the Trust and deliver the same
upon written order or oral order confirmed in writing; (ii) to receive and
receipt for any monies due to the Trust and deposit the same in its own banking
department or elsewhere as the Trustees may direct; and (iii) to disburse such
funds upon orders or vouchers.
(b) The Trustees may direct the custodian to deposit all or any part of
the securities owned by the Trust in a system for the central handling of
securities established by a national securities exchange or a national
securities association registered with the Commission under the Securities
Exchange Act of 1934, as amended, or such other person as may be permitted by
the Commission, or otherwise in accordance with the 1940 Act, pursuant to which
system all securities of any particular class or series of any issuer deposited
within the system are treated as fungible and may be transferred or pledged by
bookkeeping entry without physical delivery of such securities, provided that
all such deposits shall be subject to withdrawal only upon the order of the
Trust or its custodians, subcustodians or other agents.
(c) The funds of the Trust shall be deposited in such depositories as
the Trustees shall designate and shall be drawn out on checks, drafts or other
orders signed by such officer, officers, agent or agents (including any
investment adviser, administrator or manager), as the Trustees may from time to
time authorize.
4.3. Parties to Contract. Any contract may be entered into with any
corporation, firm, trust or association, although one or more of the Trustees or
officers of the Trust may be an officer, director, trustee, shareholder, or
member of such other party to the contract, and no such contract shall be
invalidated or rendered void or voidable by reason of the existence of any such
relationship, nor shall any person holding such relationship be disqualified
from voting on or executing the same in the Holder's and/or Trustee's capacity
as Holder and/or Trustee, nor shall any person holding such relationship be
liable merely by reason of such relationship for any loss or expense to the
Trust under or by reason of said contract or accountable for any profit realized
directly or indirectly therefrom. The same person (including a firm,
corporation, trust, or association) may be the other party to contracts entered
into pursuant to Sections 4.1 or 4.2 above or otherwise, and any person may be
financially interested or otherwise affiliated with persons who are parties to
any or all of the contracts mentioned in this Section 4.3.
4.4. Compliance with 1940 Act. Any contract entered into pursuant to
Section 4.1 shall be consistent with and subject to the requirements of Section
15 of the 1940 Act, as modified by any applicable order or orders of the
Commission or interpretive releases of the Commission thereunder, with respect
to its continuance in effect, its termination and the method of authorization
and approval of such contract or renewal thereof.
ARTICLE V
Limitations of Liability
5.1. No Personal Liability of Trustees, Holders. No Trustee, when
acting in such capacity, shall be subject to any personal liability whatsoever
to any Person, other than the Trust or its Holders, in connection with Trust
Property or the affairs of the Trusts. No Trustee, when acting in such capacity,
shall be subject to any personal liability whatsoever, provided that nothing
contained herein or in the Delaware Act shall protect any Trustee against any
liability to the Trust or its Holders to which he 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 Trustees hereunder. No
Holder shall be subject to any personal liability whatsoever to any Person in
connection with Trust Property or the affairs of the Trust. The Trustees shall
have no power to bind any Holder personally or to call upon any Holder for the
payment of any sum of money or assessment whatsoever other than such as the
Holder may at any time personally agree to pay by way of purchase of or increase
in Interests or otherwise.
5.2. Indemnification.
(a) Subject to the exceptions and limitations contained in Section
(b) below:
(i) Every Person who is, or has been, a Trustee or officer of
the Trust (hereinafter referred to as a "Covered Person") shall be
indemnified by the Trust to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by him
in connection with any claim, action, suit or proceeding in which he
becomes involved as a party or otherwise by virtue of being or having
been a Trustee or officer and against amounts paid or incurred by him
in the settlement thereof;
(ii) The words "claim," "action," "suit," or "proceeding"
shall apply to all claims, actions, suits or proceedings (civil,
criminal or other, including appeals), actual or threatened while in
office or thereafter, and the words "liability" and "expenses" shall
include, without limitation, attorneys' fees, costs, judgments, amounts
paid in settlement, fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) Who shall have been adjudicated by a court or body before
which the proceeding was brought (A) to be liable to the Trust or its
Holders by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of the
Covered Person's office or (B) not to have acted in good faith in the
reasonable belief that Covered Person's action was in the best interest
of the Trust; or
(ii) In the event of a settlement, unless there has been a
determination that such Trustee or officer did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the Trustee's or officer's office,
(A) By the court or other body
approving the settlement;
(B) By at least a majority of those Trustees
who are neither Interested Persons of the Trust nor are
parties to the matter based upon a review of readily available
facts (as opposed to a full trial-type inquiry); or
(C) By written opinion of independent legal
counsel based upon a review of readily available facts (as
opposed to a full trial-type inquiry);
provided, however, that any Holder may, by appropriate legal
proceedings, challenge any such determination by the Trustees or by
independent counsel.
(c) The rights of indemnification herein provided may be insured
against by policies maintained by the Trust, shall be severable, shall not be
exclusive of or affect any other rights to which any Covered Person may now or
hereafter be entitled, shall continue as to a person who has ceased to be a
Covered Person and shall inure to the benefit of the heirs, executors and
administrators of such a person. Nothing contained herein shall affect any
rights to indemnification to which Trust personnel, other than Covered Persons,
and other persons may be entitled by contract or otherwise under law.
(d) Expenses in connection with the preparation and presentation of a
defense to any claim, action, suit or proceeding of the character described in
paragraph (a) of this Section 5.2 may be paid by the Trust or Series from time
to time prior to final disposition thereof upon receipt of an undertaking by or
on behalf of such Covered Person that such amount will be paid over by him to
the Trust or Series if it is ultimately determined that he is not entitled to
indemnification under this Section 5.2; provided, however, that either (a) such
Covered Person shall have provided appropriate security for such undertaking,
(b) the Trust is insured against losses arising out of any such advance payments
or (c) either a majority of the Trustees who are neither Interested Persons of
the Trust nor parties to the matter, or independent legal counsel in a written
opinion, shall have determined, based upon a review of readily available facts
(as opposed to a trial-type inquiry or full investigation), that there is reason
to believe that such Covered Person will be found entitled to indemnification
under this Section 5.2.
(e) Conditional advancing of indemnification monies under this Section
5.2 for actions based upon the 1940 Act may be made only on the following
conditions: (i) the advances must be limited to amounts used, or to be used, for
the preparation or presentation of a defense to the action, including costs
connected with the preparation of a settlement; (ii) advances may be made only
upon receipt of a written promise by, or on behalf of, the recipient to repay
that amount of the advance which exceeds that amount which it is ultimately
determined that he is entitled to receive from the Trust by reason of
indemnification; and (iii) (a) such promise must be secured by a surety bond,
other suitable insurance or an equivalent form of security which assures that
any repayments may be obtained by the Trust without delay or litigation, which
bond, insurance or other form of security must be provided by the recipient of
the advance, or (b) a majority of a quorum of the Trust's disinterested,
non-party Trustees, or an independent legal counsel in a written opinion, shall
determine, based upon a review of readily available facts, that the recipient of
the advance ultimately will be found entitled to indemnification.
(f) In case any Holder or former Holder of any Series shall be held to
be personally liable solely by reason of the Holder or former Holder being or
having been a Holder of that Series and not because of the Holder or former
Holder acts or omissions or for some other reason, the Holder or former Holder
(or the Holder or former Holder's 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
belonging to the applicable Series to be held harmless from and indemnified
against all loss and expense arising from such liability. The Trust, on behalf
of the affected Series, shall, upon request by the Holder, assume the defense of
any claim made against the Holder for any act or obligation of the Series and
satisfy any judgment thereon from the assets of the Series.
5.3. No Bond Required of Trustees. No Trustee shall, as such, be
obligated to give any bond or surety or other security for the performance of
any of the Trustee's duties hereunder.
5.4. No Duty of Investigation; Notice in Trust Instruments, etc. No
purchaser, lender, or other person dealing with the Trustees or any officer,
employee or agent of the Trust shall be bound to make any inquiry concerning the
validity of any transaction purporting to be made by the Trustees or by said
officer, employee or agent or be liable for the application of money or property
paid, loaned, or delivered to or on the order of the Trustees or of said
officer, employee or agent. Every obligation, contract, instrument, certificate
or other interest or undertaking of the Trust or any Series, and every other act
or thing whatsoever executed in connection with the Trust or any Series, shall
be conclusively taken to have been executed or done by the executors thereof
only in their capacity as Trustees, officers, employees or agents of the Trust.
Every written obligation, contract, instrument, certificate or other interest or
undertaking of the Trust or any Series made or sold by the Trustees or by any
officer, employee or agent of the Trust, in their capacity as such, shall
contain an appropriate recital to the effect that the Trustee, officer, employee
and agent of the Trust shall not personally be bound by or liable thereunder,
nor shall resort be had to their private property for the satisfaction of any
obligation or claim thereunder, and appropriate references shall be made therein
to the Instrument, and may contain any further recital which they may deem
appropriate, but the omission of such recital shall not operate to impose
personal liability on any of the Trustees, officers, employees or agents of the
Trust. The Trustees may maintain insurance for the protection of the Trust
Property, its Holders, Trustees, officers, employees and agents in such amount
as the Trustees shall deem adequate to cover possible tort liability, and such
other insurance as the Trustees in their sole judgment shall deem advisable.
5.5. Reliance on Experts, etc. Each Trustee and officer or employee of
the Trust shall, in the performance of the Trustee's, officer's and employee's
duties, be fully and completely justified and protected with regard to any act
or any failure to act resulting from reliance in good faith upon the books of
account or other records of the Trust or any Series, upon an opinion of counsel,
or upon reports made to the Trust or any Series by any of its officers or
employees or by any Investment Manager, accountant, appraiser or other experts
or consultants selected with reasonable care by the Trustees, officers or
employees of the Trust, regardless of whether such counsel or expert may also be
a Trustee.
ARTICLE VI
Interests of the Trust
6.1. Interests. The beneficial interest in the property of the Trust
shall be divided into Interests of one or more separate and distinct Series as
the Trustees shall from time to time create and establish. The Trustees may
permit the purchase of Interests in any Series by any number of Persons. Subject
to applicable law and to such restrictions as may be adopted by the Trustees, a
Holder may increase or decrease its Interest in any Series without limitation.
6.2. Rights of Holders. The ownership of the Trust Property of every
description and the right to conduct any business hereinbefore described are
vested exclusively in the Trustees, and the Holders shall have no right or title
therein other than the beneficial interest conferred by their Interests and they
shall have no right to call for any partition or division of any property,
profits or rights of the Trust. The Interests shall be personal property giving
only the rights specifically set forth in this Instrument.
6.3. Purchase of or Increase in Interests. The Trustees, in their
discretion, may, from time to time, without a vote of the Holders, permit the
purchase of Interests of any Series by such party or parties (or increase in the
Interest of a Holder in any Series) and for such type of consideration,
including cash or property, at such time or times (including, without
limitation, each business day), and on such terms as the Trustees may deem best,
and may in such manner acquire other assets (including the acquisition of assets
subject to, and in connection with the assumption of, liabilities) and
businesses. The Trustees may make such additional rules and regulations, not
inconsistent with this Instrument, as they may deem expedient concerning the
purchase or increase of Interests.
6.4. Register of Interests. A register shall be kept at the principal
office of the Trust under the direction of the Trustees which shall contain the
names and addresses of the Holders of each Series and the Book Capital Account
balances of each Holder of each Series. Each such register shall be conclusive
as to who are the Holders of each Series of the Trust and who shall be entitled
to payments of distributions or otherwise to exercise or enjoy the rights of
Holders. No Holder shall be entitled to receive payment of any distribution, or
to have notice given to it as herein provided, until it has given its address to
such officer or agent of the Trustees as shall keep the said register for entry
thereon.
6.5. Non-Transferability. Interests of a Series shall not be
transferable, unless the prospective transferor obtains the prior unanimous
consent of the Holders of that Series to the transfer. Except as otherwise
provided by law, the Trust shall be entitled to recognize the exclusive right of
a person in whose name any Interest stands on the record of Holders as the
holder of such Interest for all purposes, including, without limitation, the
rights to receive distributions, and to vote as such holder, and the Trust shall
not be bound to recognize any equitable or legal claim to or interest in any
such Interest on the part of any other person.
6.6. Notices. Any and all notices to which any Holder hereunder may be
entitled and any and all communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to any Holder of record at its last known
address as recorded on the register of the Trust.
6.7. Assent to Trust Instrument. Every Holder, by virtue of having
become a Holder, shall be held to have expressly assented and agreed to the
terms hereof and to have become a party hereto.
6.8. Establishment of Series. The Trust created hereby shall consist of
one or more Series and separate and distinct records shall be maintained by the
Trust for each Series and the assets associated with any such Series shall be
held and accounted for separately from the assets of the Trust or any other
Series. The Trustees shall have full power and authority, in their sole
discretion, and without obtaining any prior authorization or vote of the Holders
of any Series of the Trust, to establish and designate and to change in any
manner any such Series of Interests and to fix such preferences, voting powers,
right and privileges of such Series as the Trustees may from time to time
determine, to classify or reclassify any unissued Interests or any Series into
one or more Series, and to take such other action with respect to the Interests
as the Trustees may deem desirable. The establishment and designation of any
Series shall be effective upon the adoption of a resolution by a majority of the
Trustees setting forth such establishment and designation and the relative
rights and preferences of the Interests of such Series. At any time that there
are no Interests outstanding of any particular Series previously established and
designated, the Trustees may by a majority vote abolish that Series and the
establishment and designation thereof.
All references to Interests in this Trust Instrument shall be deemed to
be Interests of any or all Series, as the context may require. All provisions
herein relating to the Trust shall apply equally to each Series of the Trust,
except as the context otherwise requires.
6.9. Assets and Liabilities of Series. All consideration received by
the Trust for the issuance or sale of Interests of a particular Series, 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 and accounted for separately from the other assets of the Trust
and of every other Series and may be referred to herein as "assets belonging to"
that Series. The assets belonging to a particular Series shall belong to that
Series for all purposes, and to no other Series, subject only to the rights of
creditors of that Series. In addition, any assets, income, earnings, profits or
funds, or payments and proceeds with respect thereto, which are not readily
identifiable as belonging to any particular Series shall be allocated by the
Trustees between and among one or more of the Series in such manner as the
Trustees, in their sole discretion, deem fair and equitable. Each such
allocation shall be conclusive and binding upon the Holders of all Series for
all purposes, and such assets, income, earnings, profits or funds, or payments
and proceeds with respect thereto shall be assets belonging to that Series. The
assets belonging to a particular Series shall be so recorded upon the books of
the Trust, and shall be held by the Trustees in trust for the benefit of the
Holders of Interests of that Series. The assets belonging to each particular
Series shall be charged with the liabilities of that Series and all expenses,
costs, charges and reserves attributable to that Series. Any general
liabilities, expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular Series shall be allocated
and charged by the Trustees between or among any one or more of the Series in
such manner as the Trustees in their sole discretion deem fair and equitable.
Each such allocation shall be conclusive and binding upon the Holders of all
Series for all purposes. Without limitation of the foregoing provisions of this
Section 6.9, but subject to the right of the Trustees in their discretion to
allocate general liabilities, expenses, costs, changes or reserves as herein
provided, the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to a particular Series shall be
enforceable against assets of such Series only, and not against the assets of
the Trust generally. Notice of this contractual limitation on inter-Series
liabilities may, in the Trustee's sole discretion, be set forth in the
certificate of trust of the Trust (whether originally or by amendment) as filed
or to be filed in the Office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act, and upon the giving of such notice in the
certificate of trust, the statutory provisions of Section 3804 of the Delaware
Act relating to limitations on inter-Series liabilities (and the statutory
effect under Section 3804 of the Delaware Act setting forth such notice in the
certificate of trust) shall become applicable to the Trust and each Series. Any
person extending credit to, contracting with or having any claim against any
Series may look only to the assets of that Series to satisfy or enforce any debt
with respect to that Series. No Holder or former Holder of any Series shall have
a claim on or any right to any assets allocated or belonging to any other
Series.
ARTICLE VII
Decreases and Withdrawals
7.1. Decreases and Withdrawals. A Holder shall have the authority to
decrease or withdraw its Interest in any Series of the Trust, at such Holder's
option, subject to the terms and conditions provided in this Article VII. The
Trust shall, upon application of any Holder or pursuant to authorization from
any Holder, and subject to this Article VII, decrease or withdraw such Holder's
Interest for an amount (which shall be treated as a distribution for purposes of
Section 8.1) determined by the application of a formula adopted for such purpose
by resolution of the Trustees; provided that (a) such amount shall not exceed
the positive balance in such Holder's Book Capital Account (determined after
taking into account such adjustments as are required by Treasury Department
Regulation ss. 1.704-1(b) (2) (ii) (b) (2) but before reduction thereof to
reflect the distribution of such amount) and (b) if so authorized by the
Trustees, the Trust may, at any time and from time to time, charge fees for
effecting such decrease or withdrawal, at such rates as the Trustees may
establish, and may, at any time and from time to time, suspend such right of
decrease or withdrawal. The procedures for effecting decreases or withdrawals
shall be as determined by the Trustees from time to time.
ARTICLE VIII
Determination of Book Capital Account
Balances, Net Asset Value, Allocations and Distributions
8.1. Book Capital Account Balances. A Book Capital Account shall be
maintained for each Holder of each Series. With respect to each Series, each
Book Capital Account shall be credited with the amounts of consideration paid by
the Holder to purchase or increase its Interest in the Series and with its share
of the Series' Net Profits (defined below), shall be charged with such Holder's
share of the Series' Net Losses (defined below), distributions and withholding
taxes (if any) and shall otherwise appropriately reflect transactions of the
Series and the Holders. No interest shall be paid on any amount of consideration
paid to the Trust to purchase or increase Interests.
"Net Profits" of a Series for any given time period shall mean the
excess of the Net Asset Value of the Series (defined in Section 8.2) at the
close of business on the last day of the period, prior to any distribution being
made with respect to such period, over the Net Asset Value of the Series as of
the opening of business on the first day of such period, after any additional
contributions made on such date.
"Net Losses" of a Series for any given time period shall mean the
excess of the Net Asset Value of the Series as of the opening of business on the
first day of the period, after any additional contributions made on such date,
over the Net Asset Value of the Series at the close of business on the last day
of such period, prior to any distribution being made with respect to such
period.
The Book Capital Account balances of Holders of each Series shall be
determined periodically at such time or times as the Trustees may determine. The
power and duty to make calculations necessary to determine these balances may be
delegated by the Trustees to the Investment Manager, custodian, or such other
person as the Trustees may determine.
Notwithstanding anything herein to the contrary, the Book Capital
Accounts and any related accounts (including without limitation tax capital
accounts, gross appreciation [unrealized gain] accounts, and gross depreciation
[unrealized loss] accounts) of the Holders and of any series shall at all times
during the full term of such Series be determined and maintained in accordance
with the rules of Treasury Department Regulation ss. 1.704-1 (b) (2) (iv). The
Trustees are authorized to prescribe, in their absolute discretion, such
policies for the establishment and maintenance of such accounts ("Policies") as
they, in consultation with the Trust's professional advisers, consider to be in
accordance with the requirements of such rules.
8.2. Net Asset Value. The term "Net Asset Value" shall mean, with
respect to any Series, that amount by which the assets of the Series exceed its
liabilities, all as determined by or under the direction of the Trustees. In
making this determination, the Trustees, without Holder approval, may alter the
method of valuing portfolio securities insofar as permitted under the 1940 Act
and the rules, regulations and interpretations thereof promulgated or issued by
the Commission or insofar as permitted by any order of the Commission applicable
to the Series. The Trustees may delegate any of their powers and duties under
this Section 8.2 with respect to valuation of assets and liabilities.
8.3. Allocation of Net Profits and Net Losses.
(a) Net Profits and Net Losses of each Series shall be determined and
allocated daily as of the close of business to and among the Holders of that
Series in proportion to their respective Interests in the Series, determined as
of the opening of business on such day.
(b) Except as otherwise provided in this Section 8.3, for each fiscal
year, items of income, deduction, gain, loss or credit that are recognized by a
Series for tax purposes shall be allocated pursuant to Treasury Department
Regulations ss. 1.704-1(b) in such manner as to equitably reflect amounts
credited or debited to the Book Capital Account of each Holder of that Series
for such year. Allocations of such items also shall be made, where appropriate,
in accordance with section 704(c) of the Code and the regulations thereunder, as
may be provided in any Policies adopted by the Trustees pursuant to Section 8.1.
(c) Expenses of a Series, if any, which are borne by any Holder of that
Series in its individual capacity shall be specially allocated to that Holder.
(d) Notwithstanding anything in Section 8.3(b) or (c) to the contrary,
in the event any Holder of a Series unexpectedly receives any adjustments,
allocations or distributions described in Treasury Department Regulations
ss.1.704-1(b)(2)(ii)(d)(4), ss.1.704-1(b)(2)(ii)(d)(5) or
ss.1.704-1(b)(2)(ii)(d)(6), items of income (including gross income) and gain of
that Series shall be specially allocated to such Holder in an amount and manner
sufficient to eliminate the deficit balance in the Holder's Book Capital Account
(as determined in accordance with Treasury Department Regulation ss. 1.704-1
(b)(2)(ii)(d)) created by such adjustments, allocations or distributions as
quickly as possible. Any special allocations of income and gain of a Series
pursuant to this Section 8.3(d) shall be taken into account in computing
subsequent allocations of income and gain of that Series pursuant to this
Article VIII, so that the net amount of any items of that Series so allocated
and the income, gain, loss, deduction and all other items of that Series
allocated to each Holder pursuant to this Article VIII shall, to the extent
possible, equal the net amount that would have been allocated to each such
Holder pursuant to the provisions of this Article VIII if such special
allocations had not been made.
8.4. Distributions. The Trustees may from time to time agree to the
payment of distributions to Holders of a Series. The amount of such
distributions and the payment of them and whether they are in cash or in any
other assets of the Series shall be wholly in the discretion of the Trustees.
8.5. Power to Modify Foregoing Procedures. Notwithstanding any of the
foregoing provisions of this Article VIII, the Trustees may prescribe, in their
absolute discretion, such other bases and times for determining, for financial
reporting and/or tax accounting purposes, (a) the Net Profits, Net Losses,
taxable income, tax loss, and/or net assets of any Series (or, where appropriate
in the Trustees' judgment, of the Trust as a whole), and/or (b) the allocation
of the Net profits or Net Losses and taxable income or tax loss so determined
among, or the payment of distributions to, the Holders of any Series as they
deem necessary or desirable to enable the Trust or any Series to comply with any
provision of the 1940 Act, the Code, any rule or regulation thereunder, or any
order of exemption issued by the Commission, all as in effect now or as
hereafter amended or modified.
ARTICLE IX
Holders
9.1. Meetings of Holders. Meetings of the Holders of any Series may be
called at any time by a majority of the Trustees and shall be called by any
Trustee upon written request of Holders holding, in the aggregate, not less than
10% of the Interests of that Series, such request specifying the purpose or
purposes for which such meeting is to be called. Any such meeting shall be held
within or without the State of Delaware on such day and at such time as the
Trustees shall designate. Holders of one-third of the Interests entitled to
vote, present in person or by proxy, shall constitute a quorum for the
transaction of any business, except as may otherwise be required by law or by
this Instrument. The Chairman, if any, shall act as chairman at all meetings of
the Holders; in the Chairman's absence, the President shall act as chairman; and
in the absence of the Chairman and the President, the Trustee or Trustees
present at each meeting may elect a temporary chairman for the meeting, who may
be one of themselves. Holders may vote either in person or by duly executed
proxy and each Holder shall be entitled to vote proportionate to the Holder's
Interest in the Trust or affected Series. If a quorum is present at a meeting,
an affirmative vote of a majority of interest of the Holders present and
entitled to vote thereon, either in person or by proxy, at such meeting
constitutes the action of the Holders, unless law or this Instrument requires a
greater number of affirmative votes.
9.2. Notice of Meetings. Notice of all meetings of the Holders of any
Series, stating the time, place and purposes of the meeting, shall be given by
the Trustees by mail to each Holder of that Series, at the Holder's registered
address, mailed at least 10 days and not more than 90 days before the meeting.
At any such meeting, any business properly before the meeting may be considered
whether or not stated in the notice of the meeting. Any adjourned meeting may be
held as adjourned without further notice. No notice need be given to any Holder
who shall have failed to inform the Trust of the Holder's current address or if
a written waiver of notice, executed before or after the meeting by the Holder
or the Holder's attorney thereunto authorized, is filed with the records of the
meeting.
9.3. Record Date for Meetings. For the purpose of determining the
Holders who are entitled to notice of and to vote at any meeting, including any
adjournment thereof, or to participate in any distribution, or for the purpose
of any other action, the Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of the Holders or payment of
distributions or other action, as the case may be, as a record date for the
determination of the Persons to be treated as Holders of record for such
purposes. If the Trustees do not, prior to any meeting of Holders, so fix a
record date, then the date of mailing notice of the meeting shall be the record
date.
9.4. Proxies, etc. At any meeting of Holders, any Holder entitled to
vote thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Secretary, or with
such other officer or agent of the Trust as the Secretary may direct, for
verification prior to the time at which such vote shall be taken. A proxy may be
given in writing, by any electronic or telecommunications device or in any other
manner. Pursuant to a resolution of a majority of the Trustees, proxies may be
solicited in the name of one or more Trustees or one or more of the officers of
the Trust. Only Holders of record shall be entitled to vote. Each Holder shall
be entitled to a vote proportionate to its Interest in the Trust or applicable
Series, as the case may be. When Interests are held jointly by several persons,
any one of them may vote at any meeting in person or by proxy in respect of such
Interest, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present disagree
as to any vote to be cast, such vote shall not be received in respect of such
Interest. A proxy purporting to be executed by or on behalf of a Holder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. If the Holder is a minor or a
person of unsound mind, and subject to guardianship or to the legal control of
any other person as regards the charge or management of its Interest, the Holder
may vote by the Holder's guardian or such other person appointed or having such
control, and such vote may be given in person or by proxy. No proxy shall be
valid after eleven (11) months from the date of its execution, unless a longer
period is expressly stated in such proxy.
9.5. Inspectors of Election. In advance of any meeting of Holders, the
Trustees may appoint Inspectors of Election to act at the meeting or any
adjournment thereof. If Inspectors of Election are not so appointed, the
Chairman, if any, of any meeting of Holders may, and on the request of any
Holder or the Holder's proxy shall, appoint Inspectors of Election of the
meeting. The number of Inspectors shall be either one or three. If appointed at
the meeting on the request of one or more Holders or proxies, a majority of the
Interests present shall determine whether one or three Inspectors are to be
appointed, but failure to allow such determination by the Holders shall not
affect the validity of the appointment of Inspectors of Election. In case any
person appointed as Inspector fails to appear or fails or refuses to act, the
vacancy may be filled by appointment made by the Trustees in advance of the
convening of the meeting or at the meeting by the person acting as Chairman. The
Inspectors of Election shall determine the percentage of the total Interests
represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, shall receive votes, ballots or consents, shall
hear and determine all challenges and questions in any way arising in connection
with the right to vote, shall count and tabulate all votes or consents,
determine the results, and do such other acts as may be proper to conduct the
election or vote with fairness to all Holders. If there are three Inspectors of
Election, the decision, act or certificate of a majority is effective in all
respects as the decision, act or certificate of all. On request of the Chairman,
if any, of the meeting, or of any Holder or a ▇▇▇▇▇▇'s proxy, the Inspectors of
Election shall make a report in writing of any challenge or question or matter
determined by them and shall execute a certificate of any facts found by them.
9.6. Inspection of Records. The records of the Trust shall be open to
inspection by Holders during normal business hours for any purpose not harmful
to the Trust. At each meeting of the Holders of the Trust or any Series there
shall be open for inspection the minutes of the last previous meeting of Holders
of the Trust or Series, as the case may be, and a list of the Holders of the
Trust or Series, certified to be true and correct by the Secretary or other
proper agent of the Trust, as of the record date of the meeting. Such list of
Holders shall contain the name of each Holder and the address and the percentage
of the total Interests owned by such Holder.
9.7. Holder Action by Written Consent. Any action which may be taken by
Holders may be taken without a meeting if Holders shall unanimously consent to
the action in writing and the written consents are filed with the records of the
meetings of Holders. Such consent shall be treated for all purposes as a vote
taken at a meeting of Holders.
9.8. Voting Powers. The Holders shall have power to vote only (i) for
the election of Trustees as provided in Sections 2.2 and 2.4; (ii) for the
removal of Trustees as provided in Section 2.3; (iii) with respect to any
investment management contract entered into pursuant to Section 4.1; (iv) with
respect to termination of the Trust as provided in Section 10.1; and (v) with
respect to any such additional matters relating to the Trust as may be required
by this Instrument or any registration of the Trust as an investment company
under the 1940 Act with the Commission (or any successor agency) or as the
Trustees may consider necessary or desirable. On any matter submitted to a vote
of the Holders, all Interests shall be voted separately by individual Series,
except (i) when required by the 1940 Act, Interests shall be voted in the
aggregate and not by individual Series; and (ii) when the Trustees have
determined that the matter affects the interests of more than one Series, then
the Holders of all such Series shall be entitled to vote thereon. There shall be
no cumulative voting in the election of Trustees. Until Interests are issued and
at any time wherein no Interests are outstanding, the Trustees may exercise all
rights of Holders and may take any action required by law or this Instrument to
be taken by Holders.
ARTICLE X
Duration; Termination; Dissolution;
Amendment; Mergers; Etc.
10.1. Termination of Trust or any Series.
(a) The Trust or any Series may be terminated by (i) a Majority
Interests Vote of each Series affected by the matter or, if applicable, a
Majority Interests vote of the Trust, or (ii) the Trustees by written notice to
the Holders. Upon any such termination,
(i) The Trust or any affected Series shall carry on no
business except for the purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up the affairs of the
Trust or any affected Series and all of the powers of the Trustees
under this Instrument with respect to the Trust or any affected Series
shall continue until the affairs of the Trust or any such Series shall
have been wound up, including the power to fulfill or discharge the
contracts of the Trust or any such Series, collect its assets, sell,
convey, assign, exchange, or otherwise dispose of all or any part of
the remaining assets of the Trust or any such Series to one or more
persons at public or private sale for consideration which may consist
in whole or in part of cash, securities or other property of any kind,
discharge or pay its liabilities, and do all other acts appropriate to
liquidate its business.
(iii) After paying or adequately providing for the payment of
all liabilities, and upon receipt of such releases, indemnities and
refunding agreements, as they deem necessary for their protection, the
Trustees shall distribute the remaining assets of the Trust or any
affected Series, in cash or in kind or partly each, among the Holders
of the Trust or the affected Series in proportion to their respective
Interests in the Trust or Series (that is, in accordance with the
positive Book Capital Account balances of the Holders), after taking
into account such adjustments as are required by Treasury Department
Regulation ss. 1.704-1(b) (2) (ii) (b) (2).
(b) Upon termination of the Trust or any Series and distribution to the
Holders as herein provided, a majority of the Trustees shall execute and lodge
among the records of the Trust an instrument in writing setting forth the fact
of such termination. Upon termination of the Trust or any Series, the Trustees
shall thereupon be discharged from all further liabilities and duties hereunder
with respect to the Trust or Series, and the rights and interests of all Holders
of the Trust or Series shall thereupon cease.
10.2. Dissolution. Any Series shall be dissolved 120 days after a
Holder of an Interest in such Series either (a) makes an assignment for the
benefit of creditors, (b) files a voluntary petition in bankruptcy, (c) is
adjudicated a bankrupt or insolvent, (d) files any pleading admitting or failing
to contest the material allegations of a petition filed against it in any
bankruptcy or insolvency proceeding, or (e) seeks, consents to, or acquiesces in
the appointment of a trustee, receiver, or liquidator of such Holder or of all
or any substantial part of its assets, unless, within such 120 days, Holders
(excluding the Holder with respect to whom such event occurs) owning a majority
of the Interests in such Series vote to continue the Series. Upon any
dissolution pursuant to this section, the provisions of Section 10.1(a) (i),
(ii), and (iii) shall apply as if such dissolution were a termination described
in Section 10.1.
10.3. Amendment Procedure.
(a) Except as specifically provided herein, the Trustees may, without
the vote or consent of Holders, amend or otherwise supplement this Instrument by
making an amendment, a trust instrument supplemental hereto or an amended and
restated trust instrument. Holders shall have the right to vote (i) on any
amendment which would affect their right to vote granted in Section 9.8, (ii) on
any amendment to this Section 10.3, (iii) on any amendment as may be required by
law or by the Trust's registration statement filed with the Commission, and (iv)
on any amendment submitted to them by the Trustees. Any amendment required or
permitted to be submitted to Holders which, as the Trustees determine, shall
affect the Holders of one or more Series shall be authorized by vote of the
Holders of each Series affected, and no vote of Holders of a Series not affected
shall be required.
(b) Notwithstanding anything else herein, any Amendment to Article 5
hereof shall not limit the rights to indemnification or insurance provided
therein with respect to action or omission of Covered Persons prior to such
amendment. Nothing contained in this Instrument shall permit the amendment of
this Instrument to impair the exemption from personal liability of the Holders
or Trustees of the Trust.
(c) A certification signed by a majority of the Trustees setting forth
an amendment and reciting that it was duly adopted by the Holders or by the
Trustees as aforesaid or a copy of the Instrument, as amended, executed by a
majority of the Trustees, shall be conclusive evidence of such amendment when
lodged among the records of the Trust.
Notwithstanding any other provision hereof, until such time as
Interests are first sold, this Instrument may be terminated or amended in any
respect by the affirmative vote of a majority of the Trustees or by an
instrument signed by a majority of the Trustees.
10.4. Merger or Consolidation. Notwithstanding anything else herein,
the Trustees may, without the prior consent or vote of the Holders, cause the
Trust or any Series to merge or consolidate with any other partnership, trust or
other organization. Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, and notwithstanding anything to the contrary
contained in this Instrument, any such agreement of merger or consolidation may
effect any amendment to the Instrument or effect the adoption of a new trust
instrument of the Trust if the Trust or Series is the surviving or resulting
entity in the merger or consolidation.
10.5. Incorporation. Notwithstanding anything else herein, the Trustees
may, without the prior consent or vote of the Holders, cause to be organized or
assist in organizing a corporation or corporations under the laws of any
jurisdiction or any other trust, partnership, association or other organization
to take over all of the Trust Property or the assets of any Series or to carry
on any business in which the Trust or any Series shall directly or indirectly
have any interest, and to sell, convey and transfer the Trust Property or the
assets of any Series to any such corporation, trust, association or organization
in exchange for the equity interests thereof or otherwise, and to lend money to,
subscribe for the equity interests of, and enter into any contracts with any
such corporation, trust, partnership, association or organization, or any
corporation, partnership, trust, association or organization in which the Trust
or any Series holds or is about to acquire equity interests. The Trustees may
also cause a merger or consolidation between the Trust or any Series or any
successor thereto and any such corporation, trust, partnership, association or
other organization if and to the extent permitted by law, as provided under the
law then in effect. In addition, nothing contained herein shall be construed as
requiring approval of the Holders for the Trustees to organize or assist in
organizing one or more corporations, trusts, partnerships, associations or other
organizations and selling, conveying or transferring a portion of the Trust
Property or the assets of any Series to such organizations or entities.
ARTICLE XI
Miscellaneous
11.1. Governing Law. The trust set forth in this instrument is made in
the State of Delaware, and the Trust and this Instrument, and the rights and
obligations of the Trustees and Holders hereunder, are to be governed by and
construed and administered according to the Delaware Act and the laws of said
State; provided, however, that there shall not be applicable to the Trust, the
Trustees or this Instrument (a) the provisions of Section 3540 of Title 12 of
the Delaware Code or (b) any provisions of the laws (statutory or common) of the
State of Delaware (other than the Delaware Act) pertaining to trusts which
relate to or regulate (i) the filing with any court or governmental body or
agency of trustee accounts or schedules of trustee fees and charges, (ii)
affirmative requirements to post bonds for trustees, officers, agents or
employees of a trust, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition of real
or personal property, (iv) fees or other sums payable to trustees, officers,
agents or employees of a trust, (v) the allocation of receipts and expenditures
to income or principal, (vi) restrictions or limitations on the permissible
nature, amount or concentration of trust investments or requirements relating to
the titling, storage or other manner of holding of trust assets, or (vii) the
establishment of fiduciary or other standards or responsibilities or limitations
on the acts or powers of trustees, which are inconsistent with the limitations
or liabilities or authorities and powers of the Trustees set forth or referenced
in this Instrument. The Trust shall be of the type commonly called a "business
trust," and without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust under Delaware law. The
trust specifically reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be engaged in by trusts under
the Delaware Act, and the absence of a specific reference herein to any such
power, privilege or action shall not imply that the Trust may not exercise such
power or privilege or take such actions.
11.2. Counterparts. This Instrument may be simultaneously executed in
several counterparts, each of which shall be deemed to be an original, and such
counterparts, together, shall constitute one and the same instrument, which
shall be sufficiently evidenced by any such original counterpart.
11.3. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust or of any recording office
in which this Instrument may be recorded, appears to be a Trustee hereunder,
certifying to: (a) the number or identity of Trustees or Holders; (b) the due
authorization of the execution of any instrument or writing; (c) the form of any
vote passed at a meeting of Trustees or Holders; (d) the fact that the number of
Trustees or Holders present at any meeting or executing any written instrument
satisfies the requirements of this Instrument; (e) the form of any By-Laws
adopted by or the identity of any officers elected by the Trustees, or; (f) the
existence of any fact or facts which in any manner relate to the affairs of the
Trust, shall be conclusive evidence as to the matters so certified in favor of
any person dealing with the Trustees and their successors.
11.4. Provisions in Conflict With Law or Regulations.
(a) The provisions of this Instrument are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with any applicable laws or regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Instrument; provided, however, that such determination shall not affect any of
the remaining provisions of this Instrument or render invalid or improper any
action taken or omitted prior to such determination.
(b) If any provision of this Instrument shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Instrument in any jurisdiction.
(c) It is intended that each Series of the Trust be classified as a
partnership for federal income tax purposes. The Trustees, in their sole
discretion and without the vote or consent of the Holders, may amend this
Instrument and do whatever else they determine to be necessary to ensure that
this objective is achieved.
11.5. Signatures. All contracts and other instruments shall be executed
on behalf of the Trust by such officer, officers, agent or agents, as provided
in this Instrument or as the Trustees may from time to time by resolution
provide.
11.6. Seal. The seal of the Trust, if any, may be affixed to any
document, and the seal and its attestation may be lithographed, engraved or
otherwise printed on any document with the same force and effect as if it had
been imprinted and attested manually in the same manner and with the same effect
as if done by a Delaware business corporation.
11.7. Fiscal Year. The fiscal year of the Trust and each Series shall
begin on June 1, provided, however, that the Trustees may from time to time
change the fiscal year of the Trust or of any Series.
11.8. Waivers of Notice. Whenever any notice whatever is required to be
given by law or this Instrument, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. A notice shall be deemed to
have been telegraphed, cabled or wirelessed for the purposes of this Instrument
when it has been delivered to a representative of any telegraph, cable or
wireless company with instructions that it be telegraphed, cabled or wirelessed.
11.9. Reports. The Trustees shall cause to be prepared, at least
annually, a report of operations containing those financial statements as may be
required by laws or as the Trustees may direct for each Series prepared in
conformity with generally accepted accounting principles and an opinion of an
independent public accountant on such financial statements. The Trustees shall,
in addition, furnish to the Holders of each Series at least semi-annually
interim reports containing unaudited financial statements as may be required by
laws or as the Trustees may direct.
IN WITNESS WHEREOF, the undersigned have caused this amended and
restated Trust Instrument to be executed as of the day and year first above
written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
as Trustee and not individually
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
as Trustee and not individually
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
as Trustee and not individually
CORE TRUST (DELAWARE)
TRUST INSTRUMENT
AS AMENDED AND RESTATED NOVEMBER 1, 1994
Amendment Dated April 4, 1995
In accordance with Section 10.03 of the Trust Instrument as amended and
restated November 1, 1994 of Core Trust (Delaware) (the "Trust Instrument")
(which provides that except as specifically provided therein, the Board of
Trustees of Core Trust (Delaware) may, without shareholder vote, amend or
otherwise supplement the Trust Instrument by making an amendment) the following
trustees, being all of the Board of Trustees of Core Trust (Delaware), met on
April 4, 1995 and amended the Trust Instrument as follows.
RESOLVED, that Article VI, Section 6.3, of the Trust Instrument, is
hereby amended to provide in its entirety as follows:
6.3. Purchase of or Increase in Interests. The Trustees, in their
discretion, may, from time to time, without a vote of the Holders,
permit the purchase of Interests of any Series by such party or parties
(or increase in the Interest of a Holder in any Series) and for such
type of consideration, including cash or property, at such time or
times (including, without limitation, each business day), and on such
terms as the Trustees may deem best, and may in such manner acquire
other assets (including the acquisition of assets subject to, and in
connection with the assumption of, liabilities) and businesses;
provided, however, that the Trustees may not permit the purchase of
Interests of any Series if any Series would have more than 500 Holders.
The Trustees may make such additional rules and regulations, not
inconsistent with this Instrument, as they may deem expedient
concerning the purchase or increase of Interests.
IN WITNESS WHEREOF, the trustees hereto have caused this Trust
Instrument Amendment to be duly executed all as of the day and year first above
written.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
MARKED TO REFLECT CHANGES
6.3. Purchase of or Increase in Interests. The Trustees, in their
discretion, may, from time to time, without a vote of the Holders,
permit the purchase of Interests of any Series by such party or parties
(or increase in the Interest of a Holder in any Series) and for such
type of consideration, including cash or property, at such time or
times (including, without limitation, each business day), and on such
terms as the Trustees may deem best, and may in such manner acquire
other assets (including the acquisition of assets subject to, and in
connection with the assumption of, liabilities) and businesses;
provided, however, that the Trustees may not permit the purchase of
Interests of any Series if any Series would have more than 500 Holders.
The Trustees may make such additional rules and regulations, not
inconsistent with this Instrument, as they may deem expedient
concerning the purchase or increase of Interests.
CORE TRUST (DELAWARE)
TRUST INSTRUMENT
AS AMENDED AND RESTATED NOVEMBER 1, 1994
Amendment Dated August 30, 1995
In accordance with Section 10.03 of the Trust Instrument as amended and
restated November 1, 1994 of Core Trust (Delaware) (the "Trust Instrument")
(which provides that except as specifically provided therein, the Board of
Trustees of Core Trust (Delaware) may, without shareholder vote, amend or
otherwise supplement the Trust Instrument by making an amendment) the following
trustees, being all of the Board of Trustees of Core Trust (Delaware), met on
August 30, 1995 and amended the Trust Instrument as follows.
RESOLVED, that Appendix A of the Trust Instrument, is hereby added to
provide in its entirety as follows:
APPENDIX A
(as amended August 30, 1995)
Established Portfolios
The following Series have been created by the Trustees in accordance
with section 6.8 of the Trust Instrument:
Portfolio Date Established
1. International Portfolio 11/9/94
2. International Portoflio II 11/9/94
3. Small Company Portfolio 11/9/94
4. Index Portfolio 11/9/94
5. Treasury Cash Portfolio 8/30/95
6. Government Cash Portfolio 8/30/95
7. Cash Portfolio 8/30/95
8. Treasury Portfolio 8/30/95
IN WITNESS WHEREOF, the trustees hereto have caused this Trust
Instrument Amendment to be duly executed all as of the day and year first above
written.
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
-----------------------------
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Trustee
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
