Exhibit a
USAA MUTUAL FUNDS TRUST
FIRST AMENDED AND RESTATED MASTER TRUST AGREEMENT
APRIL 20, 2006
FIRST AMENDED AND RESTATED MASTER TRUST AGREEMENT
TABLE OF CONTENTS
PAGE
ARTICLE I. NAME AND DEFINITIONS.........................................1
Section 1.1. Name and Principal Office....................................1
Section 1.2. Definitions..................................................2
(a) "Act"...............................................2
(b) "By-Laws"...........................................2
(c) "class".............................................2
(d) "Commission"........................................2
(e) "Declaration of Trust"..............................2
(f) "Majority of the Outstanding........................2
(g) "Net Asset Value"...................................2
(h) "1940 Act"..........................................2
(i) "person"............................................2
(j) "Shareholder".......................................2
(k) "Shares"............................................2
(l) "Sub-Trust" or "Series".............................2
(m) "Trust".............................................2
(n) "Trustees"..........................................2
ARTICLE II. PURPOSE OF TRUST.............................................3
ARTICLE III. THE TRUSTEES.................................................3
Section 3.1. Number, Designation, Election, Term, etc.....................3
(a) Trustees............................................3
(b) Number..............................................3
(c) Election and Term...................................3
(d) Resignation and Retirement..........................3
(e) Removal.............................................3
(f) Vacancies...........................................4
(g) Effect of Death, Resignation, etc...................4
(h) No Accounting.......................................4
Section 3.2. Powers of Trustees...........................................4
(a) Investments.........................................5
(b) Disposition of Assets...............................5
(c) Ownership Powers....................................5
(d) Subscription........................................5
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(e) Form of Holding.....................................6
(f) Reorganization, etc.................................6
(g) Voting Trusts, etc..................................6
(h) Compromise..........................................6
(i) Partnerships, etc...................................6
(j) Borrowing and Security..............................6
(k) Guarantees, etc.....................................6
(l) Insurance...........................................6
(m) Pensions, etc.......................................6
(n) Distribution Plans..................................7
Section 3.3. Certain Contracts............................................7
(a) Advisory............................................7
(b) Administration......................................7
(c) Distribution........................................7
(d) Custodian and Depository............................7
(e) Transfer and Dividend Disbursing Agency.............7
(f) Shareholder Servicing...............................8
(g) Accounting..........................................8
Section 3.4. Payment of Trust Expenses and Compensation of Trustees.......9
Section 3.5. Ownership of Assets of the Trust.............................9
Section 3.6. Action by Trustees...........................................9
ARTICLE IV. SHARES.......................................................9
Section 4.1. Description of Shares........................................9
Section 4.2. Establishment and Designation of Sub-Trusts and Classes.....11
(a) Assets Belonging to Sub-Trusts.....................11
(b) Liabilities belonging to Sub-Trusts................12
(c) Dividends..........................................12
(d) Liquidation........................................13
(e) Voting.............................................13
(f) Redemption by Shareholder..........................13
(g) Redemption by Trust................................13
(h) Net Asset Value....................................14
(i) Transfer...........................................14
(j) Equality...........................................14
(k) Fractions..........................................14
(l) Conversion Rights..................................14
(m) Class Differences..................................15
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Section 4.3. Ownership of Shares.........................................15
Section 4.4. Investments in the Trust....................................15
Section 4.5. No Pre-emptive Rights.......................................15
Section 4.6. Status of Shares and Limitation of Personal Liability.......15
Section 4.7. No Appraisal Rights.........................................15
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS....................16
Section 5.1. Voting Powers...............................................16
Section 5.2. Meetings....................................................16
Section 5.3. Record Dates................................................16
Section 5.4. Quorum and Required Vote....................................17
Section 5.5. Action by Written Consent...................................17
Section 5.6. Inspection of Records.......................................17
Section 5.7. Additional Provisions.......................................17
ARTICLE VI. LIMITATION OF LIABILITY; INDEMNIFICATION....................17
Section 6.1. Trustees, Shareholders, etc. Not Personally
Liable; Notice............................................17
Section 6.2. Trustee's Good Faith Action; Expert Advice; No Bond
or Surety.................................................18
Section 6.3. Indemnification of Shareholders.............................19
Section 6.4. Indemnification of Trustees, Officers, etc.;
Advancement of Expenses...................................19
Section 6.5. Compromise Payment..........................................20
Section 6.6. Indemnification Not Exclusive, etc..........................20
Section 6.7. Liability of Third Persons Dealing with Trustees............20
Section 6.8. Discretion..................................................20
ARTICLE VII. MISCELLANEOUS....................................................21
Section 7.1. Duration and Termination of Trust...........................21
Section 7.2. Reorganization..............................................21
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Section 7.3. Amendments..................................................22
Section 7.4. Filing of Copies; References; Headings......................22
Section 7.5. Applicable Law..............................................23
Section 7.6. Registered Agent............................................23
Section 7.7. Integration.................................................23
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FIRST AMENDED AND RESTATED MASTER TRUST AGREEMENT
OF
USAA MUTUAL FUNDS TRUST
THIS FIRST AMENDED AND RESTATED MASTER TRUST AGREEMENT is made and entered into
this _____ day of ______, 2006, by the Trustees named below, and by the holders
of shares of beneficial interest to be issued hereunder as hereinafter provided.
WITNESSETH
WHEREAS, USAA Mutual Funds Trust (formerly known as "USAA State Tax-Free Trust")
("Trust") was formed on June 21, 1993 to carry on the business of an investment
company; and
WHEREAS, the Trust is authorized to issue its shares of beneficial interest in
separate series, each separate series to be a Sub-Trust hereunder, and to issue
classes of Shares of any Sub-Trust or divide Shares of any Sub-Trust into two or
more classes, all in accordance with the provisions hereinafter set forth; and
WHEREAS, the Trustees have agreed to manage all property coming into their hands
as trustees of a Delaware statutory trust in accordance with the provisions of
the Delaware Statutory Trust Act (12 Del. C. ss.3801, et seq.), as from time to
time amended and including any successor statute of similar import (the "Act"),
and the provisions hereinafter set forth; and
WHEREAS, Section 7.3 of the Trust's Master Trust Agreement dated June 21, 1993,
as amended on September 8, 1993 and May 3, 1994, provides that the Agreement may
be amended at any time so long as such amendment does not adversely affect the
rights of any Shareholder and so long as such amendment is not in contravention
of applicable law, including the Investment Company Act of 1940, as amended, by
an instrument in writing signed by a majority of the Trustees of the Trust; and
WHEREAS, the Trustees desire to amend and restate the Agreement to add 37 new
Series (in addition to the "Florida Tax-Free Income Fund" and "Florida Tax-Free
Money Market Fund" heretofore established and designated) and to modify certain
provisions of the Agreement; and
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets which they may from time to time acquire in any
manner as Trustees hereunder IN TRUST to manage and dispose of the same upon the
following terms and conditions for the benefit of the holders from time to time
of shares of beneficial interest in the Trust and the Sub-Trusts created
hereunder as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
SECTION 1.1. NAME AND PRINCIPAL OFFICE. This Trust shall be known as "USAA
Mutual Funds Trust" and the Trustees shall conduct the business of the Trust
u
nder that name or any other
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name or names as they may from time to time determine. The principal office of
the Trust shall be located at such location as the Trustees may from time to
time determine.
SECTION 1.2. DEFINITIONS. Whenever used herein, unless otherwise required by the
context or specifically provided:
(a) "Act" shall have the meaning given to it in the recitals of this
Declaration of Trust;
(b) "By-Laws" shall mean the By-Laws of the Trust as amended from time to
time;
(c) "class" refers to any class of Shares of any Series or Sub-Trust
established and designated under or in accordance with the provisions of Article
IV;
(d) "Commission" shall have the meaning given it in the 1940 Act;
(e) "Declaration of Trust" shall mean this Master Trust Agreement as
amended or restated from time to time;
(f) "Majority of the Outstanding Voting Shares" of the Trust or Sub-Trust
shall mean the vote, at the annual or a special meeting of Shareholders duly
called, (A) of 67 per centum or more of the Shares of the Trust or Sub-Trust
present at such meeting, if holders of more then 50 per centum of the
outstanding Shares of the Trust or Sub-Trust are present or represented by
proxy; or (B) of more than 50 per centum of the outstanding voting Shares of the
Trust or Sub-Trust, whichever is the less.
(g) "Net Asset Value" means the net asset value of each Sub-Trust or class
thereof, determined as provided in Article IV, Section 4.2(g).
(h) "1940 Act" refers to the Investment Company Act of 1940 and the Rules
and Regulations thereunder, all as amended from time to time;
(i) "person" means a natural person, corporation, limited liability
company, trust, association, partnership (whether general, limited or
otherwise), joint venture or any other entity.
(j) "Shareholder" means a beneficial owner of record of Shares;
(k) "Shares" refers to the transferable units of interest into which the
beneficial interest in the Trust and each Sub-Trust of the Trust and/or any
class of any Sub-Trust (as the context may require) shall be divided from time
to time;
(l) "Sub-Trust" or "Series" refers to a series of Shares established and
designated under or in accordance with the provisions of Article IV;
(m) "Trust" refers to the Delaware statutory trust established by this
Declaration of Trust, inclusive of each and every Sub-Trust established
hereunder; and
(n) "Trustees" refers to the trustees of the Trust named herein or elected
in accordance with Article III.
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ARTICLE II
PURPOSE OF TRUST
The purposes of the Trust are (i) to operate as an investment company and to
offer Shareholders of the Trust and each Sub-Trust of the Trust one or more
investment programs primarily in securities and debt instruments, and (ii) to
engage in such activities that are necessary, suitable, incidental or convenient
to the accomplishment of the foregoing.
ARTICLE III
THE TRUSTEES
SECTION 3.1. NUMBER, DESIGNATION, ELECTION, TERM, ETC.
(a) Trustees. The Trustees hereof shall be ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇.
(b) Number. The Trustees serving as such, whether named above or hereafter
becoming Trustees, may increase or decrease the number of Trustees to a number
other than the number theretofore determined. No decrease in the number of
Trustees shall have the effect of removing any Trustee from office prior to the
expiration of his term, but the number of Trustees may be decreased in
conjunction with the removal of a Trustee pursuant to subsection (e) of this
Section 3.1.
(c) Election and Term. Shareholders shall not be entitled to elect Trustees
except as required by the 1940 Act or under this Declaration of Trust. Each
Trustee, whether named above or hereafter becoming a Trustee, shall serve as a
Trustee of the Trust during the lifetime of this Trust and until its termination
as hereinafter provided except as such Trustee sooner dies, resigns, retires or
is removed. Subject to Section 16(a) of the 1940 Act, the Trustees may elect
successors and may, pursuant to Section 3.1(f) hereof, appoint Trustees to fill
vacancies.
(d) Resignation and Retirement. Any Trustee may resign his trust or retire
as a Trustee of the Trust, by written instrument signed by him and delivered to
the other Trustees or to any officer of the Trust, and such resignation or
retirement shall take effect upon such delivery or upon such later date as is
specified in such instrument and shall be effective as to the Trust and each
Sub-Trust hereunder.
(e) Removal. Any Trustee may be removed with or without cause at any time:
(i) by written instrument, signed by at least two-thirds of the number of
Trustees in office immediately prior to such removal, specifying the date upon
which such removal shall become effective; or (ii) by vote of Shareholders
holding not less than two-thirds of the Shares then outstanding, cast in person
or by proxy at any meeting called for the purpose; or (iii) by a written
declaration signed by Shareholders holding not less than two-thirds of the
Shares then outstanding and filed with the minutes of the Trust. Any such
removal shall be effective as to the Trust and each Sub-Trust hereunder.
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(f) Vacancies. Whenever a vacancy exists in the Board of Trustees,
regardless of the reason for such vacancy, the remaining Trustees shall appoint
any person as they determine in their sole discretion to fill that vacancy,
consistent with the limitations under the 1940 Act. Such appointment shall be
made by a written instrument signed by a majority of the Trustees or by a
resolution of the Trustees, duly adopted and recorded in the records of the
Trust, specifying the effective date of the appointment. The Trustees may
appoint a new Trustee as provided above in anticipation of a vacancy expected to
occur because of the retirement, resignation or removal of a Trustee, or an
increase in number of Trustees, provided that such appointment shall become
effective only at or after the expected vacancy occurs. Upon the appointment
and/or election of a successor Trustee, the trust estate shall vest in the new
Trustee, together with the continuing Trustees, without any further act or
conveyance, and he shall be deemed a Trustee hereunder.
(g) Effect of Death, Resignation, etc. The death, resignation, retirement,
removal or incapacity of the Trustees or any one of them shall cause a Trustee
to cease to be a trustee of the Trust but shall not operate to annul or
terminate the Trust or any Sub-Trust hereunder or to revoke or terminate any
existing agency or contract created or entered into pursuant to the terms of
this Declaration of Trust.
(h) No Accounting. Except to the extent required by the 1940 Act or under
circumstances which would justify his removal for cause, no person ceasing to be
a trustee of the Trust as a result of his death, resignation, retirement,
removal or incapacity (nor the estate of any such person) shall be required to
make an accounting to the Shareholders or remaining Trustees upon such
cessation.
SECTION 3.2. POWERS OF TRUSTEES. Subject to the provisions of this Declaration
of Trust, the business of the Trust shall be managed by the Trustees, and they
shall have all powers necessary or convenient to carry out that responsibility
and the purpose of the Trust. The Trustees in all instances shall act as
principals, and are and shall be free from the control of the Shareholders. The
Trustees shall have full power and authority to do any and all acts and to make
and execute any and all contracts and instruments that they may consider
necessary or appropriate in connection with the management of the Trust. The
Trustees shall not be bound or limited by present or future laws or customs with
regard to investment by trustees or fiduciaries, but shall have full authority
and absolute power and control over the assets of the Trust and the business of
the Trust to the same extent as if the Trustees were the sole owners of the
assets of the Trust and the business in their own right, including such
authority, power and control to do all acts and things as they, in their sole
discretion, shall deem proper to accomplish the purposes of this Trust. Without
limiting the foregoing, the Trustees may adopt By-Laws not inconsistent with
this Declaration of Trust providing for the conduct of the business and affairs
of the Trust and may amend and repeal them to the extent that such By-Laws do
not reserve that right to the Shareholders; they may from time to time in
accordance with the provisions of Section 4.1 hereof establish Sub-Trusts, each
such Sub-Trust to operate as a separate and distinct investment medium and with
separately defined investment objectives and policies and distinct investment
purposes; they may from time to time in accordance with the provisions of
Section 4.1 hereof establish Series or establish classes of Shares of any Series
or Sub-Trust or divide the Shares of any Series or Sub-Trust into classes; they
may as they consider appropriate designate employees and agents who may be
denominated as officers with titles, including, but not limited to, "president,"
"vice president," "treasurer," "secretary," "assistant secretary," "assistant
treasurer,"
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"managing director," "chairman of the board" and "vice chairman of the board"
and who in such capacity may act for and on behalf of the Trust, as and to the
extent authorized by the Trustees, and appoint and terminate agents and
consultants and hire and terminate employees, any one or more of the foregoing
of whom may be a Trustee, and may provide for the compensation of all of the
foregoing; they may appoint from their own number, and terminate, any one or
more committees consisting of two or more Trustees, including without implied
limitation an executive committee, which may, when the Trustees are not in
session and subject to the 1940 Act, exercise some or all of the power and
authority of the Trustees as the Trustees may determine; in accordance with
Section 3.3 they may employ one or more advisers, administrators, depositories
and custodians and may authorize any depository or custodian to employ
subcustodians or agents and to deposit all or any part of such assets in a
system or systems for the central handling of securities and debt instruments,
retain transfer, dividend, accounting or Shareholder servicing agents or any of
the foregoing, provide for the distribution of Shares by the Trust through one
or more distributors, principal underwriters or otherwise, and subject to
Section 5.3, set record dates or times for the determination of Shareholders or
various of them with respect to various matters; they may compensate or provide
for the compensation of the Trustees, officers, advisers, administrators,
custodians, other agents, consultants and employees of the Trust or the Trustees
on such terms as they deem appropriate; and in general they may delegate to any
officer of the Trust, to any committee of the Trustees and to any employee,
adviser, administrator, distributor, depository, custodian, transfer and
dividend disbursing agent, or any other agent or consultant of the Trust such
authority, powers, functions and duties as they consider desirable or
appropriate for the conduct of the business and affairs of the Trust, including
without implied limitation the power and authority to act in the name of the
Trust and any Sub-Trust and of the Trustees, to sign documents and to act as
attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent with the 1940
Act or other applicable law, the Trustees shall have power and authority for and
on behalf of the Trust and each separate Sub-Trust established hereunder:
(a) Investments. To invest and reinvest cash and other property, and to
hold cash or other property uninvested without in any event being bound or
limited by any present or future law or custom in regard to investments by
trustees; (b) Disposition of Assets. To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the assets of the Trust;
(c) Ownership Powers. To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities, debt instruments or
property; and to execute and deliver proxies or powers of attorney to such
person or persons as the Trustees shall deem proper, granting to such person or
persons such power and discretion with relation to securities, debt instruments
or property as the Trustees shall deem proper;
(d) Subscription. To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities or debt
instruments;
5
(e) Form of Holding. To hold any security, debt instrument or property in a
form not indicating any trust, whether in bearer, unregistered or other
negotiable form, or in the name of the Trustees or of the Trust or of any
Sub-Trust or in the name of a custodian, subcustodian or other depositary or a
nominee or nominees or otherwise;
(f) Reorganization, etc. To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security or debt instrument of which is or was held in the Trust; to consent to
any contract, lease, mortgage, purchase or sale of property by such corporation
or issuer, and to pay calls or subscriptions with respect to any security or
debt instrument held in the Trust;
(g) Voting Trusts, etc. To join with other holders of any securities or
debt instruments in acting through a committee, depositary, voting trustee or
otherwise, and in that connection to deposit any security or debt instrument
with, or transfer any security or debt instrument to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security or debt instrument (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and to pay,
such portion of the expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
(h) Compromise. To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any Sub-Trust or any matter in controversy,
including but not limited to claims for taxes;
(i) Partnerships, etc. To enter into joint ventures, general or limited
partnerships, limited liability companies and any other combinations or
associations;
(j) Borrowing and Security. To borrow funds and to mortgage and pledge the
assets of the Trust or any part thereof to secure obligations arising in
connection with such borrowing;
(k) Guarantees, etc. To endorse or guarantee the payment of any notes or
other obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust property or any part thereof to secure any of or all such obligations;
(l) Insurance. To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, consultants, investment advisers, managers,
administrators, distributors, principal underwriters, or independent
contractors, or any thereof (or any person connected therewith), of the Trust
individually against all claims and liabilities of every nature arising by
reason of holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such person in
any such capacity, including any action taken or omitted that may be determined
to constitute negligence, whether or not the Trust would have the power to
indemnify such person against such liability;
(m) Pensions, etc. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share
6
purchase, savings, thrift and other retirement, incentive and benefit plants,
trusts and provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits, for any or
all of the Trustees, officers, employees and agents of the Trust; and
(n) Distribution Plans. To adopt on behalf of the Trust or any Sub-Trust,
including with respect to any class thereof, a plan of distribution and related
agreements thereto pursuant to the terms of Rule 12b-1 under the 1940 Act and to
make payments from the assets of the Trust or the relevant Sub-Trust or
Sub-Trusts pursuant to said Rule 12b-1 Plan.
SECTION 3.3. CERTAIN CONTRACTS. Subject to compliance with the provisions of the
1940 Act, but notwithstanding any limitations of present and future law or
custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time and without limiting the generality of
their powers and authority otherwise set forth herein, enter into one or more
contracts with any one or more corporations, trusts, associations, partnerships,
limited partnerships, limited liability companies, other type of organizations,
or individuals (a "Contracting Party") to provide for the performance and
assumption of some or all of the following services, duties and responsibilities
to, for or on behalf of the Trust and/or any Sub-Trust, and/or the Trustees, and
to provide for the performance and assumption of such other services, duties and
responsibilities in addition to those set forth below as the Trustees may
determine appropriate:
(a) Advisory. Subject to the general supervision of the Trustees and in
conformity with the stated policy of the Trustees with respect to the
investments of the Trust or of the assets belonging to any Sub-Trust of the
Trust (as that phrase is defined in subsection (a) of Section 4.2), to manage
such investments and assets, make investment decisions with respect thereto, and
to place purchase and sale orders for portfolio transactions relating to such
investments and assets;
(b) Administration. Subject to the general supervision of the Trustees and
in conformity with any policies of the Trustees with respect to the operations
of the Trust and each Sub-Trust (including each class thereof), to supervise all
or any part of the operations of the Trust and each Sub-Trust, and to provide
all or any part of the administrative and clerical personnel, office space and
office equipment and services appropriate for the efficient administration and
operations of the Trust and each Sub-Trust;
(c) Distribution. To distribute the Shares of the Trust and each Sub-Trust
(including any classes thereof), to be principal underwriter of such Shares,
and/or to act as agent of the Trust and each Sub-Trust in the sale of Shares and
the acceptance or rejection of orders for the purchase of Shares;
(d) Custodian and Depository. To act as depository for and to maintain
custody of the property of the Trust and each Sub-Trust and accounting records
in connection therewith;
(e) Transfer and Dividend Disbursing Agency. To maintain records of the
ownership of outstanding Shares, the issuance and redemption and the transfer
thereof, and to disburse any
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dividends declared by the Trustees and in accordance with the policies of the
Trustees and/or the instructions of any particular Shareholder to reinvest any
such dividends;
(f) Shareholder Servicing. To provide service with respect to the
relationship of the Trust and its Shareholders, records with respect to
Shareholders and their Shares, and similar matters; and
(g) Accounting. To handle all or any part of the accounting
responsibilities, whether with respect to the Trust's properties, Shareholders
or otherwise.
The same person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or in
addition to the delineating of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and other, as the Trustees may determine. Nothing herein shall
preclude, prevent or limit the Trust or a Contracting Party from entering into
sub-contractual arrangements relating to any of the matters referred to in
Sections 3.3 (a) through (g) hereof.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager, adviser,
principal underwriter or distributor or agent of or for any Contracting Party,
or of or for any parent or affiliate of any Contracting Party or that the
Contracting Party or any parent or affiliate thereof is a Shareholder or has an
interest in the Trust or any Sub-Trust, or that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations, trusts,
associations, partnerships, limited partnerships, limited liability companies or
other organizations, or have other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust or any
Sub-Trust and/or the Trustees or disqualify any Shareholder, Trustee or officer
of the Trust from voting upon or executing the same or create any liability or
accountability to the Trust, any Sub-Trust or its Shareholders, provided that in
the case of any relationship or interest referred to in the preceding clause (i)
on the part of any Trustee or officer of the Trust either (x) the material facts
as to such relationship or interest have been disclosed to or are known by the
Trustees not having any such relationship or interest and the contract involved
is approved in good faith by a majority of such Trustees not having any such
relationship or interest (even though such unrelated or disinterested Trustees
are less than a quorum of all of the Trustees), (y) the material facts as to
such relationship or interest and as to the contract have been disclosed to or
are known by the Shareholders entitled to vote thereon and the contract involved
is specifically approved in good faith by vote of the Shareholders, or (z) the
specific contract involved is fair to the Trust as of the time it is authorized,
approved or ratified by the Trustees or by the Shareholders.
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SECTION 3.4. PAYMENT OF TRUST EXPENSES AND COMPENSATION OF TRUSTEES. The
Trustees are authorized to pay or to cause to be paid out of the principal or
income of the Trust or any Sub-Trust, or partly out of principal and partly out
of income, and to charge or allocate the same to, between or among such one or
more of the Sub-Trusts and/or one or more classes of Shares thereof that may be
established and designated pursuant to Article IV, as the Trustees deem fair,
all expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust, any Sub-Trust and/or any class of Shares thereof, or
in connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser, administrator, distributor,
principal underwriter, auditor, counsel, depository, custodian, transfer agent,
dividend disbursing agent, accounting agent, Shareholder servicing agent, and
such other agents, consultants, and independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
Without limiting the generality of any other provision hereof, the Trustees
shall be entitled to reasonable compensation from the Trust for their services
as Trustees of the Trust and may fix the amount of such compensation.
SECTION 3.5. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the assets of the
Trust and of each Sub-Trust shall at all times be considered as vested in the
Trust.
SECTION 3.6. ACTION BY TRUSTEES. Except as otherwise provided by the 1940 Act or
other applicable law, this Declaration of Trust or the By-Laws, any action to be
taken by the Trustees on behalf of or with respect to the Trust or any Sub-Trust
or class thereof may be taken by a majority of the Trustees present at a meeting
of Trustees (a quorum, consisting of at least one-half of the Trustees then in
office, being present), within or without Delaware, including any meeting held
by means of a conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other at the same
time, and participation by such means shall constitute presence in person at a
meeting, or by written consents of a majority of the Trustees then in office (or
such larger or different number as may be required by the 1940 Act or other
applicable law).
ARTICLE IV
SHARES
SECTION 4.1. DESCRIPTION OF SHARES. The beneficial interest in the Trust shall
be divided into Shares, all with $.001 par value, but the Trustees shall have
the authority from time to time to issue Shares in one or more Series (each of
which Series of Shares shall represent the beneficial interest in a separate and
distinct Sub-Trust of the Trust, including without limitation each Sub-Trust
specifically established and designated in Section 4.2), as they deem necessary
or desirable. For all purposes under this Declaration of Trust or otherwise,
including, without implied limitation, (i) with respect to the rights of
creditors and (ii) for purposes of interpreting the relevant rights of each
Sub-Trust and the Shareholders of each Sub-Trust, each Sub-Trust established
hereunder shall be deemed to be a separate trust. Notice of the limitation of
liabilities of a Sub-Trust shall be set forth in the certificate of trust of the
Trust, and debts, liabilities, obligations and expenses incurred, contracted for
or otherwise existing with respect to a particular Sub-Trust shall be
enforceable against the assets of such Sub-Trust only, and not against the
assets of the Trust generally. The Trustees shall have exclusive power, without
the
9
requirement of Shareholder approval, to establish and designate such separate
and distinct Sub-Trusts, and to fix and determine the relative rights and
preferences as between the shares of the separate Sub-Trusts as to right of
redemption and the price, terms and manner of redemption, special and relative
rights as to dividends and other distributions and on liquidation, sinking or
purchase fund provisions, conversion rights, and conditions under which the
several Sub-Trusts shall have separate voting rights or no voting rights. The
Trustees shall have full power and authority, without the requirement of
Shareholder approval, to change in any manner shares of any Sub-Trust or class
with such preferences, terms of conversion, voting powers, rights and privileges
as the Trustees may determine (but the Trustees may not change outstanding
Shares in a manner materially adverse to the Shareholders without a shareholder
vote).
In addition, the Trustees shall have exclusive power, without the requirement of
Shareholder approval, to issue classes of Shares of any Sub-Trust or divide the
Shares of any Sub-Trust into classes, each class having such different dividend,
liquidation, voting and other rights as the Trustees may determine in their sole
discretion, and may establish and designate the specific classes of Shares of
each Sub-Trust. The fact that a Sub-Trust shall have initially been established
and designated without any specific establishment or designation of classes
(I.E., that all Shares of such Sub-Trust are initially of a single class), or
that a Sub-Trust shall have more than one established and designated class,
shall not limit the authority of the Trustees to establish and designate
separate classes, or one or more further classes, of said Sub-Trust without
approval of the holders of the initial class thereof, or previously established
and designated class or classes thereof, provided that the establishment and
designation of such further separate classes would not adversely affect the
rights of the holders of the initial or previously established and designated
class or classes.
The number of authorized Shares and the number of Shares of each Sub-Trust or
class thereof that may be issued is unlimited, and the Trustees may issue Shares
of any Sub-Trust or class thereof for such consideration and on such terms as
they may determine (or for no consideration if pursuant to a Share dividend or
split-up), all without action or approval of the Shareholders. All Shares when
so issued on the terms determined by the Trustees shall be fully paid and
non-assessable (but may be subject to mandatory contribution back to the Trust
as provided in subsection (h) of Section 4.2). The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any Sub-Trust or class thereof into one or more Sub-Trusts or classes thereof
that may be established and designated from time to time. The Trustees may hold
as treasury Shares, reissue for such consideration and on such terms as they may
determine, or cancel, at their discretion from time to time, any Shares of any
Sub-Trust or class thereof reacquired by the Trust.
The Trustees may from time to time close the transfer books or establish record
dates and times for the purposes of determining the holders of Shares entitled
to be treated as such, to the extent provided or referred to in Section 5.3.
The establishment and designation of any additional Sub-Trust or any class of
Shares of the Trust shall be effective upon the adoption by a majority of the
then Trustees of a resolution that sets forth such establishment and designation
and the relative rights and preferences of such Sub-Trust or class of the Trust,
whether directly in such resolution or by reference to another
10
document, including, without limitation, any registration statement of the
Trust, or as otherwise provided in such resolution.
At any time that there are no Shares outstanding of any particular Sub-Trust or
class previously established and designated, the Trustees may abolish that
Sub-Trust or class and the establishment and designation thereof. Each
resolution establishing and designating any Sub-Trust shall have the status of
an amendment to this Declaration of Trust.
Any Trustee, officer or other agent of the Trust, and any organization in which
any such person is interested may acquire, own, hold and dispose of Shares of
any Sub-Trust (including any classes thereof) of the Trust to the same extent as
if such person were not a Trustee, officer or other agent of the Trust; and the
Trust may issue and sell or cause to be issued and sold and may purchase Shares
of any Sub-Trust (including any classes thereof) from any such person or any
such organization subject only to the general limitations, restrictions or other
provisions applicable to the sale or purchase of Shares of such Sub-Trust
(including any classes thereof) generally.
SECTION 4.2. ESTABLISHMENT AND DESIGNATION OF SUB-TRUSTS AND CLASSES. The
Trustees have established and designated two Sub-Trusts: "Florida Tax-Free
Income Fund" and "Florida Tax-Free Money Market Fund," each of which consists of
a single class of shares. The Shares of each Sub-Trust and any Shares of any
further Sub-Trust or class thereof that may from time to time be established and
designated by the Trustees shall (unless the Trustees otherwise determine with
respect to some further Sub-Trust at the time of establishing and designating
the same) have the following relative rights and preferences:
(a) Assets Belonging to Sub-Trusts. All consideration received by the Trust
for the issue or sale of Shares of a particular Sub-Trust or any classes
thereof, together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof, including any
proceeds derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds in whatever
form the same may be, shall be held by the Trustees in trust for the benefit of
the holders of Shares of that Sub-Trust or class thereof and shall irrevocably
belong to that Sub-Trust (and be allocable to any classes thereof) for all
purposes, and shall be so recorded upon the books of account of the Trust.
Separate and distinct records shall be maintained for each Sub-Trust and the
assets associated with a Sub-Trust shall be held and accounted for separately
from the other assets of the Trust, or any other Sub-Trust. Such consideration,
assets, income, earnings, profits, and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds, in whatever form the
same may be, together with any General Items (as hereinafter defined) allocated
to that Sub-Trust as provided in the following sentence, are herein referred to
as "assets belonging to" that Sub-Trust (and allocable to any classes thereof).
In the event that there are any assets, income, earnings, profits, and proceeds
thereof, funds, or payments which are not readily identifiable as belonging to
any particular Sub-Trust (collectively "General Items"), the Trustees shall
allocate such General Items to and among any one or more of the Sub-Trusts
established and designated from time to time in such manner and on such basis as
they, in their sole discretion, deem fair and equitable; and any General Items
so allocated to a particular Sub-Trust shall belong to that Sub-Trust (and be
allocable to any classes thereof). Each such allocation by the Trustees shall be
11
conclusive and binding upon the holders of all Shares of all Sub-Trusts
(including any classes thereof) for all purposes.
(b) Liabilities belonging to Sub-Trusts. The assets belonging to each
particular Sub-Trust shall be charged with the liabilities in respect of that
Sub-Trust and all expenses, costs, charges and reserves belonging to that
Sub-Trust, and any general liabilities, expenses, costs, charges or reserves of
the Trust which are not readily identifiable as belonging to any particular
Sub-Trust shall be allocated and charged by the Trustees to and among any one or
more of the Sub-Trusts established and designated from time to time in such
manner and on such basis as the Trustees in their sole discretion shall
determine. In addition, the liabilities in respect of a particular class of
Shares of a particular Sub-Trust and all expenses, costs, charges and reserves
belonging to that class of Shares, and any general liabilities, expenses, costs,
charges or reserves of that particular Sub-Trust which are not readily
identifiable as belonging to any particular class of Shares of that Sub-Trust
shall be allocated and charged by the Trustees to and among any one or more of
the classes of Shares of that Sub-Trust established and designated from time to
time in such manner and on such basis as the Trustees in their sole discretion
shall determine. The liabilities, expenses, costs, charges and reserves
allocated and so charged to a Sub-Trust or class thereof are herein referred to
as "liabilities belonging to" that Sub-Trust or class thereof. Each allocation
of liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the Shareholders, creditors and any other persons
dealing with the Trust or any Sub-Trust (including any classes thereof) for all
purposes. Any creditor of any Sub-Trust may look only to the assets of that
Sub-Trust to satisfy such creditor's debt.
The Trustees shall have full discretion, to the extent not inconsistent with the
1940 Act, to determine which items shall be treated as income and which items as
capital; and each such determination and allocation shall be conclusive and
binding upon the Shareholders.
(c) Dividends. Dividends and distributions on Shares of a particular
Sub-Trust or any class thereof may be paid with such frequency as the Trustees
may determine, which may be daily or otherwise pursuant to a standing resolution
or resolutions adopted only once or with such frequency as the Trustees may
determine, to the holders of Shares of that Sub-Trust or class, from such of the
income and capital gains, accrued or realized, from the assets belonging to that
Sub-Trust, or in the case of a class, belonging to that Sub-Trust and allocable
to that class, as the Trustees may determine, after providing for actual and
accrued liabilities belonging to that Sub-Trust or class. All dividends and
distributions on Shares of a particular Sub-Trust or class thereof shall be
distributed PRO RATA to the holders of Shares of that Sub-Trust or class in
proportion to the number of Shares of that Sub-Trust or class held by such
holders at the date and time of record established for the payment of such
dividends or distributions, except that in connection with any dividend or
distribution program or procedure the Trustees may determine that no dividend or
distribution shall be payable on Shares as to which the Shareholder's purchase
order and/or payment have not been received by the time or times established by
the Trustees under such program or procedure. Such dividends and distributions
may be made in cash or Shares of that Sub-Trust or class or a combination
thereof as determined by the Trustees or pursuant to any program that the
Trustees may have in effect at the time for the election by each Shareholder of
the mode of the making of such dividend or distribution to that Shareholder. Any
such dividend or distribution paid in Shares will be paid at the net asset value
thereof as determined in accordance with subsection (h) of this Section 4.2.
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The Trustees shall have full discretion to determine which items shall be
treated as income and which items as capital; and each such determination and
allocation shall be conclusive and binding upon the Shareholders.
(d) Liquidation. In the event of the liquidation or dissolution of the
Trust, subject to Section 7.1 hereof, the holders of Shares of each Sub-Trust or
any class thereof that has been established and designated shall be entitled to
receive, when and as declared by the Trustees, the excess of the assets
belonging to that Sub-Trust, or in the case of a class, belonging to that
Sub-Trust and allocable to that class, over the liabilities belonging to that
Sub-Trust or class. The assets so distributable to the holders of Shares of any
particular Sub-Trust or class thereof shall be distributed among such holders in
proportion to the number of Shares of that Sub-Trust or class thereof held by
them and recorded on the books of the Trust. The liquidation of any particular
Sub-Trust or class thereof may be authorized at any time by vote of a majority
of the Trustees then in office.
(e) Voting. On each matter submitted to a vote of the Shareholders, each
holder of a Share shall be entitled to one vote for each whole Share standing in
his name on the books of the Trust irrespective of the Series thereof or class
thereof and all Shares of all Series and classes thereof shall vote together as
a single class; provided, however, that as to any matter (i) with respect to
which a separate vote of one or more Series or classes thereof is required by
the 1940 Act or the provisions of any writing establishing and designating the
Sub-Trust or class, such requirements as to a separate vote by such Series or
class thereof shall apply in lieu of all Shares of all Series and classes
thereof voting together; and (ii) as to any matter which affects the interests
of one or more particular Series or classes thereof, only the holders of Shares
of the one or more affected Series or classes shall be entitled to vote, and
each such Series or class shall vote as a separate class.
(f) Redemption by Shareholder. Each holder of Shares of a particular
Sub-Trust or any class thereof shall have the right at such times as may be
permitted by the Trust to require the Trust to redeem all or any part of his
Shares of that Sub-Trust or class thereof at a redemption price equal to the net
asset value per Share of that Sub-Trust or class thereof next determined in
accordance with subsection (h) of this Section 4.2 after the Shares are properly
tendered for redemption, subject to any contingent deferred sales charge or
redemption charge in effect at the time of redemption. Payment of the redemption
price shall be in cash; provided, however, that if the Trustees determine, which
determination shall be conclusive, that conditions exist which make payment
wholly in cash unwise or undesirable, the Trust may, subject to the requirements
of the 1940 Act, make payment wholly or partly in securities or other assets
belonging to the Sub-Trust of which the Shares being redeemed are part at the
value of such securities or assets used in such determination of net asset
value.
Notwithstanding the foregoing, the Trust may postpone payment of the redemption
price and may suspend the right of the holders of Shares of any Sub-Trust or
class thereof to require the Trust to redeem Shares of that Sub-Trust during any
period or at any time when and to the extent permissible under the 1940 Act.
(g) Redemption by Trust. Each Share of each Sub-Trust or class thereof that
has been established and designated is subject to redemption by the Trust at the
redemption price which
13
would be applicable if such Share was then being redeemed by the Shareholder
pursuant to subsection (f) of this Section 4.2: (i) at any time, in the sole
discretion of the Trustees, or (ii) upon such other conditions as may from time
to time be determined by the Trustees and set forth in the then current
Prospectus of the Trust. Upon such redemption the holders of the Shares so
redeemed shall have no further right with respect thereto other than to receive
payment of such redemption price.
(h) Net Asset Value. The Trustees shall cause the Net Asset Value of Shares
of each Sub-Trust or class to be determined from time to time in a manner
consistent with applicable laws and regulations. The Trustees may delegate the
power and duty to determine Net Asset Value per Share to one or more Trustees or
officers of the Trust or to an investment manager, administrator or investment
adviser, custodian, depository or other agent appointed for such purpose. The
Net Asset Value of Shares shall be determined separately for each Sub-Trust or
class at such times as may be prescribed by the Trustees or, in the absence of
action by the Trustees as of the close of regular trading on the New York Stock
Exchange on each day for all or part of which such Exchange is open for regular
trading.
(i) Transfer. All Shares of each particular Sub-Trust or class thereof
shall be transferable, but transfers of Shares of a particular Sub-Trust or
class thereof will be recorded on the Share transfer records of the Trust
applicable to that Sub-Trust or class only at such times as Shareholders shall
have the right to require the Trust to redeem Shares of that Sub-Trust or class
and at such other times as may be permitted by the Trustees.
(j) Equality. Except as provided herein or in any instrument designating
and establishing any class of Shares or any Sub-Trust, all Shares of each
particular Sub-Trust or class thereof shall represent an equal proportionate
interest in the assets belonging to that Sub-Trust, or in the case of a class,
belonging to that Sub-Trust and allocable to that class, subject to the
liabilities belonging to that Sub-Trust or class, and each Share of any
particular Sub-Trust or class shall be equal to each other Share of that
Sub-Trust or class; but the provisions of this sentence shall not restrict any
distinctions permissible under subsection (c) of this Section 4.2 that may exist
with respect to dividends and distributions on Shares of the same Sub-Trust or
class. The Trustees may from time to time divide or combine the Shares of any
particular Sub-Trust or class into a greater or lesser number of Shares of that
Sub-Trust or class without thereby changing the proportionate beneficial
interest in the assets belonging to that Sub-Trust or class or in any way
affecting the rights of Shares of any other Sub-Trust or class.
(k) Fractions. Any fractional Share of any Sub-Trust or class, if any such
fractional Share is outstanding, shall carry proportionately all the rights and
obligations of a whole Share of that Sub-Trust or class, including rights and
obligations with respect to voting, receipt of dividends and distributions,
redemption of Shares, and liquidation of the Trust.
(l) Conversion Rights. Subject to compliance with the requirements of the
1940 Act, the Trustees shall have the authority to provide that holders of
Shares of any Sub-Trust or class thereof shall have the right to convert said
Shares into Shares of one or more other Sub-Trust or class thereof in accordance
with such requirements and procedures as may be established by the Trustees.
14
(m) Class Differences. Subject to Section 4.1, the relative rights and
preferences of the classes of any Sub-Trust may differ in such other respects as
the Trustees may determine to be appropriate in their sole discretion, provided
that such differences are set forth in any resolution or instrument establishing
and designating such classes.
SECTION 4.3. OWNERSHIP OF SHARES. The ownership of Shares shall be recorded on
the books of the Trust or of a transfer or similar agent for the Trust, which
books shall be maintained separately for the Shares of each Sub-Trust and each
class thereof that has been established and designated. No certificates
certifying the ownership of Shares need be issued except as the Trustees may
otherwise determine from time to time. The Trustees may make such rules as they
consider appropriate for the issuance of Share certificates, the use of
facsimile signatures, the transfer of Shares and similar matters. The record
books of the Trust as kept by the Trust or any transfer or similar agent, as the
case may be, shall be conclusive as to who are the Shareholders and as to the
number of Shares of each Sub-Trust and class thereof held from time to time by
each such Shareholder.
SECTION 4.4. INVESTMENTS IN THE TRUST. The Trustees may accept investments in
the Trust and each Sub-Trust from such persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any distributor,
principal underwriter, custodian, transfer agent or other person to accept
orders for the purchase of Shares that conform to such authorized terms and to
reject any purchase orders for Shares whether or not conforming to such
authorized terms.
SECTION 4.5. NO PRE-EMPTIVE RIGHTS. Shareholders shall have no pre-emptive or
other right to subscribe to any additional Shares or other securities issued by
the Trust or any Sub-Trust.
SECTION 4.6. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY. Shares shall
be deemed to be personal property giving only the rights provided in this
Declaration of Trust. Every Shareholder by virtue of acquiring Shares shall be
held to have expressly assented and agreed to the terms hereof and to have
become a party hereto. The death, incapacity, dissolution, termination or
bankruptcy of a Shareholder during the continuance of the Trust shall not
operate to dissolve or terminate the Trust or any Sub-Trust thereof nor entitle
the representative of such Shareholder to an accounting or to take any action in
court or elsewhere against the Trust or the Trustees, but only to the rights of
such Shareholder under this Trust. Ownership of Shares shall not entitle the
Shareholder to any title in or to the whole or any part of the Trust property or
right to call for a partition or division of the same or for an accounting, nor
shall the ownership of Shares constitute the Shareholders partners. Neither the
Trust nor the Trustees, nor any officer, employee or agent of the Trust shall
have any power to bind personally any Shareholder, nor except as specifically
provided herein to call upon any Shareholder for the payment of any sum of money
or assessment whatsoever other than such as the Shareholder may at any time
personally agree to pay.
SECTION 4.7. NO APPRAISAL RIGHTS. Shareholders shall have no right to demand
payment for their shares or to any other rights of dissenting shareholders in
the event the Trust participates in any transaction which would give rise to
appraisal or dissenters' rights by a shareholder of a corporation organized
under the General Corporation Law of the State of Delaware, or otherwise.
15
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 5.1. VOTING POWERS. The Shareholders shall have power to vote only (i)
for the election or removal of Trustees as provided in Section 3.1, (ii) with
respect to any contract with a Contracting Party as provided in Section 3.3 as
to which Shareholder approval is required by the 1940 Act (subject to such
exemptions as may be granted by the Securities and Exchange Commission by rule,
order or otherwise), (iii) with respect to any termination or reorganization of
the Trust to the extent and as provided in Sections 7.1 and 7.2, (iv) with
respect to any amendment of this Declaration of Trust to the extent and as
provided in Section 7.3, and (v) with respect to such additional matters
relating to the Trust as may be required by the 1940 Act, this Declaration of
Trust, the By-Laws or any registration of the Trust with the Commission (or any
successor agency) or any state, or as the Trustees may consider necessary or
desirable. There shall be no cumulative voting in the election of Trustees.
Shares may be voted in person or by proxy. Proxies may be given orally or in
writing or by any electronic or telecommunications device or in any other manner
described in the By-Laws or in a resolution of the Trustees. A proxy with
respect to Shares held in the name of two or more persons shall be valid if
executed by any one of them unless at or prior to exercise of the proxy the
Trust receives a specific written notice to the contrary from any one of them. A
proxy purporting to be executed by or on behalf of a Shareholder shall be deemed
valid unless challenged at or prior to its exercise and the burden of proving
invalidity shall rest on the challenger. Until Shares are issued, the Trustees
may exercise all rights of Shareholders and may take any action required by law,
this Declaration of Trust or the By-Laws to be taken by Shareholders.
SECTION 5.2. MEETINGS. No annual or regular meeting of Shareholders is required.
Special meetings of Shareholders may be called by the Trustees from time to time
for the purpose of taking action upon any matter requiring the vote or authority
of the Shareholders as herein provided or upon any other matter deemed by the
Trustees to be necessary or desirable. Written notice of any meeting of
Shareholders shall be given or caused to be given by the Trustees by mail,
fascimile or other electronic means at least seven days before such meeting,
postage prepaid, stating the time, place and purpose of the meeting, to each
Shareholder at the Shareholder's address as it appears on the records of the
Trust. The Trustees shall promptly call and give notice of a meeting of
Shareholders for the purpose of voting upon removal of any Trustee of the Trust
when requested to do so in writing by Shareholders holding not less than 10% of
the Shares then outstanding. If the Trustees shall fail to call or give notice
of any meeting of Shareholders for a period of 30 days after written application
by Shareholders holding at least 10% of the Shares then outstanding requesting a
meeting be called for any other purpose requiring action by the Shareholders as
provided herein or in the By-Laws, then Shareholders holding at least 10% of the
Shares then outstanding may call and give notice of such meeting, and thereupon
the meeting shall be held in the manner provided for herein in case of call
thereof by the Trustees.
SECTION 5.3. RECORD DATES. For the purpose of determining the Shareholders who
are entitled to vote or act at any meeting or any adjournment thereof, or who
are entitled to participate in any dividend or distribution, or for the purpose
of any other action, the Trustees may from time to time close the transfer books
for such period, not exceeding 30 days (except at or in connection
16
with the termination of the Trust), as the Trustees may determine; or without
closing the transfer books the Trustees may fix a date and time not more than 90
days prior to the date of any meeting of Shareholders or other action as the
date and time of record for the determination of Shareholders entitled to vote
at such meeting or any adjournment thereof or to be treated as Shareholders of
record for purposes of such other action, and any Shareholder who was a
Shareholder at the date and time so fixed shall be entitled to vote at such
meeting or any adjournment thereof or to be treated as a Shareholder of record
for purposes of such other action, even though he has since that date and time
disposed of his Shares, and no Shareholder becoming such after that date and
time shall be so entitled to vote at such meeting or any adjournment thereof or
to be treated as a Shareholder of record for purposes of such other action.
SECTION 5.4. QUORUM AND REQUIRED VOTE. Except as otherwise provided by the 1940
Act or other applicable law, thirty percent of the Shares entitled to vote shall
be a quorum for the transaction of business at a Shareholders' meeting, but any
lesser number shall be sufficient for adjournments. Any meeting of shareholders,
whether or not a quorum is present, may be adjourned for any lawful purpose
provided that no meeting shall be adjourned for more than six months beyond the
originally scheduled meeting date. Any adjourned session or sessions may be
held, within a reasonable time after the date set for the original meeting
without the necessity of further notice. A majority of the Shares voted, at a
meeting at which a quorum is present, shall decide any questions and a plurality
shall elect a Trustee, except when a different vote is required or permitted by
any provision of the 1940 Act or other applicable law or by this Declaration of
Trust or the By-Laws.
SECTION 5.5. ACTION BY WRITTEN CONSENT. Subject to the provisions of the 1940
Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if a majority of Shareholders entitled to vote on the matter
(or such larger proportion thereof as shall be required by the 1940 Act or by
any express provision of this Declaration of Trust or the By-Laws) consent to
the action in writing and such written consents are filed with the records of
the meetings of Shareholders. Such consent shall be treated for all purposes as
a vote taken at a meeting of Shareholders.
SECTION 5.6. INSPECTION OF RECORDS. The records of the Trust shall be open to
inspection by Shareholders to the same extent as is permitted stockholders of a
Delaware corporation under the Delaware General Corporation Law.
SECTION 5.7. ADDITIONAL PROVISIONS. The By-Laws may include further provisions
for Shareholders' votes and meetings and related matters not inconsistent with
the provisions hereof.
ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 6.1. TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE; NOTICE. All
persons extending credit to, contracting with or having any claim against the
Trust shall look only to the assets of the Sub-Trust with which such person
dealt for payment under such credit, contract or claim; and neither the
Shareholders of any Sub-trust nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, nor any other Sub-Trust
shall be
17
personally liable therefor. Every note, bond, contract, instrument, certificate
or undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust, any Sub-Trust or the Trustees or any of them in connection
with the Trust shall be conclusively deemed to have been executed or done only
by or for the Trust (or the Sub-Trust) or the Trustees and not personally. The
Trustees and the Trust's officers, employees and agents shall not be liable to
the Trust or the Shareholders; provided however, that nothing in this
Declaration of Trust shall protect any Trustee or officer, employee or agent
against any liability to the Trust or the Shareholders to which such Trustee or
officer, employee or agent would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee or of such officer, employee or
agent.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officers or officer may contain a statement
that the same was executed or made by or on behalf of the Trust or by them as
Trustees or Trustee or as officers or officer and not individually and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust, or the particular Sub-Trust in question, as the case may be, but the
omission thereof shall not operate to bind any Trustees or Trustee or officers
or officer or Shareholders or Shareholder individually or otherwise invalidate
any such note, bond, contract, instrument, certificate or undertaking.
SECTION 6.2. TRUSTEE'S GOOD FAITH ACTION; EXPERT ADVICE; NO BOND OR SURETY. The
exercise by the Trustees of their powers and discretion hereunder shall be
binding upon everyone interested. A Trustee, when acting in such capacity, shall
not be personally liable to any person, other than the Trust or a Shareholder to
the extent provided in this Article VI, for any act, omission or obligation of
the Trust, of such Trustee or of any other Trustee; provided, however, that
nothing contained herein or in the Delaware Act shall protect any Trustee
against any liability to the Trust or to any Shareholder 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 the Trustee hereunder. Subject to the foregoing: (a) the Trustees
shall not be responsible or liable in any event for any neglect or wrongdoing of
any officer, agent, employee, consultant, adviser, administrator, distributor or
principal underwriter, custodian or transfer, dividend disbursing, Shareholder
servicing or accounting agent of the Trust, nor shall any Trustee be responsible
for the act or omission of any other Trustee; (b) the Trustees may consider
advice of counsel or other experts with respect to the meaning and operation of
this Declaration of Trust and their duties as Trustees, and shall be under no
liability for any act or omission in accordance with such advice or for failing
to follow such advice; and (c) in discharging their duties, the Trustees, when
acting in good faith, shall be entitled to rely upon the books of account of the
Trust and upon written reports made to the Trustees by any officer appointed by
them, any independent public accountant, and (with respect to the subject matter
of the contract involved) any officer, partner or responsible employee of a
Contracting Party appointed by the Trustees pursuant to Section 3.3. The
Trustees as such shall not be required to give any bond or surety or any other
security for the performance of their duties. To the extent that, at law or in
equity, a Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to a Shareholder, any such Trustee acting under
this Declaration of Trust shall not be liable to the Trust or to any such
Shareholder for the Trustee's good faith reliance on the provisions of this
Declaration of Trust. The provisions of this Declaration of Trust, to the extent
that they restrict the duties and liabilities of a Trustee otherwise existing at
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law or in equity, are agreed by the Shareholders to replace such other duties
and liabilities of such Trustee.
SECTION 6.3. INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder (or former
Shareholder) of any Sub-Trust of the Trust shall be charged or held to be
personally liable for any obligation or liability of the Trust solely by reason
of being or having been a Shareholder and not because of such Shareholder's acts
or omissions or for some other reason, the Trust on behalf of said Sub-Trust
(upon proper and timely request by the Shareholder) shall assume the defense
against such charge and satisfy any judgment thereon, and, to the fullest extent
permitted by law, the Shareholder or former Shareholder (or his heirs,
executors, administrators or other legal representatives or in the case of a
corporation or other entity, its corporate or other general successor) shall be
entitled out of the assets of said Sub-Trust estate to be held harmless from and
indemnified against all loss and expense arising from such liability.
SECTION 6.4. INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC.; ADVANCEMENT OF
EXPENSES. To the fullest extent permitted by law, the Trust shall indemnify
(from the assets of the Sub-Trust or Sub-Trusts in question) each of its
Trustees, officers and employees (including persons who serve at the Trust's
request as directors, trustees, officers or employees of another organization in
which the Trust has any interest as a shareholder, creditor or otherwise
[hereinafter referred to as a "Covered Person"]) against all liabilities,
including but not limited to amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and expenses, including reasonable
accountants' and counsel fees, incurred by any Covered Person in connection with
the defense or disposition of any claim, action, suit or other proceeding,
whether civil, criminal or otherwise (including appeals), before any court or
administrative, legislative or other body, in which such Covered Person may be
or may have been involved as a party or otherwise or with which such person may
be or may have been threatened, while in office or thereafter, by reason of
being or having been such a Trustee, director, officer or employee, except with
respect to any matter as to which it has been determined that such Covered
Person had acted with willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Covered
Person's office (such conduct referred to hereafter as "Disabling Conduct"). A
determination that the Covered Person is entitled to indemnification may be made
by (i) a final decision on the merits by a court or other body before whom the
proceeding was brought that the person to be indemnified was not liable by
reason of Disabling Conduct, (ii) dismissal of a court action or an
administrative proceeding against a Covered Person for insufficiency of evidence
of Disabling Conduct, or (iii) a reasonable determination, based upon a review
of the facts, that the Covered Person was not liable by reason of Disabling
Conduct by (a) a vote of a majority of a quorum of Trustees who are neither
"interested persons" of the Trust as defined in section 2(a)(19) of the 1940 Act
nor parties to the proceeding, or (b) an independent legal counsel in a written
opinion. Expenses, including accountants' and counsel fees so incurred by any
such Covered Person (but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), may be paid from time to time from funds
attributable to the Sub-Trust in question in advance of the final disposition of
any such action, suit or proceeding, provided that the Covered Person shall have
undertaken to repay the amounts so paid to the Sub-Trust in question if it is
ultimately determined that indemnification of such expenses is not authorized
under this Article VI and (i) the Covered Person shall have provided security
for such undertaking, (ii) the Trust shall be insured against losses arising by
reason of any lawful advances, or (iii) a majority of a quorum of the
disinterested Trustees who are not
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a party to the proceeding, or an independent legal counsel in a written opinion,
shall have determined, based on a review of readily available facts (as opposed
to a full trial-type inquiry), that there is reason to believe that the Covered
Person ultimately will be found entitled to indemnification.
SECTION 6.5. COMPROMISE PAYMENT. As to any matter disposed of by a compromise
payment by any such Covered Person referred to in Section 6.4, pursuant to a
consent decree or otherwise, no such indemnification either for said payment or
for any other expenses shall be provided unless such indemnification shall be
approved (a) by a majority of the disinterested Trustees who are not parties to
the proceeding or (b) by an independent legal counsel in a written opinion.
Approval by the Trustees pursuant to clause (a) or by independent legal counsel
pursuant to clause (b) shall not prevent the recovery from any Covered Person of
any amount paid to such Covered Person in accordance with any of such clauses as
indemnification if such Covered Person is subsequently adjudicated by a court of
competent jurisdiction to have been liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Covered Person's office.
SECTION 6.6. INDEMNIFICATION NOT EXCLUSIVE, ETC. The right of indemnification
provided by this Article VI shall not be exclusive of or affect any other rights
to which any such Covered Person may be entitled. As used in this Article VI,
"Covered Person" shall include such person's heirs, executors and
administrators, an "interested Covered Person" is one against whom the action,
suit or other proceeding in question or another action, suit or other proceeding
on the same or similar grounds is then or has been pending or threatened, and a
"disinterested" person is a person against whom none of such actions, suits or
other proceedings or another action, suit or other proceeding on the same or
similar grounds is then or has been pending or threatened. Nothing contained in
this Article shall affect any rights to indemnification to which personnel of
the Trust, other than Trustees and officers, and other persons may be entitled
by contract or otherwise under law, nor the power of the Trust to purchase and
maintain liability insurance on behalf of any such person.
SECTION 6.7. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No person dealing
with the Trustees shall be bound to make any inquiry concerning the validity of
any transaction made or to be made by the Trustees or to see to the application
of any payments made or property transferred to the Trust or upon its order.
SECTION 6.8. DISCRETION. Whenever in this Declaration of Trust the Trustees are
permitted or required to make a decision (a) in their "sole discretion," "sole
and absolute discretion," "full discretion" or "discretion," or under a similar
grant of authority or latitude, the Trustees shall be entitled to consider only
such interests and factors as they desire, whether reasonable or unreasonable,
and may consider their own interests, and shall have no duty or obligation to
give any consideration to any interests of or factors affecting the Trust or the
Shareholders, or (b) in their "good faith" or under another express standard,
the Trustees shall act under such express standard and shall not be subject to
any other or different standards imposed by this Declaration of Trust or by law
or any other agreement contemplated herein. Each Shareholder and Trustee hereby
agrees that any standard of care or duty imposed in this Declaration of Trust or
any other agreement contemplated herein or under the Act or any other applicable
law, rule or regulation shall be modified, waived or limited in each case as
required to permit the Trustees to act under
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this Declaration of Trust or any other agreement contemplated herein and to make
any decision pursuant to the authority prescribed in this Declaration of Trust.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. DURATION AND TERMINATION OF TRUST. Unless terminated as provided
herein, the Trust shall continue without limitation of time and, without
limiting the generality of the foregoing, no change, alteration or modification
with respect to any Sub-Trust or class thereof shall operate to terminate the
Trust. The Trust may be terminated at any time by a majority of the Trustees
then in office subject to a favorable vote of a Majority of the Outstanding
Voting Shares of the Trust.
Upon termination, after paying or otherwise providing for all charges, taxes,
expenses and liabilities, whether due or accrued or anticipated as may be
determined by the Trustees, the Trust shall in accordance with such procedures
as the Trustees consider appropriate reduce the remaining assets to
distributable form in cash, securities or other property, or any combination
thereof, and distribute the proceeds to the Shareholders, in conformity with the
provisions of subsection (d) of Section 4.2.
SECTION 7.2. REORGANIZATION. The Trustees may sell, convey, merge and transfer
the assets of the Trust, or the assets belonging to any one or more Sub-Trusts,
to another trust, partnership, association or corporation organized under the
laws of any state of the United States, or to the Trust to be held as assets
belonging to another Sub-Trust of the Trust, in exchange for cash, shares or
other securities (including, in the case of a transfer to another Sub-Trust of
the Trust, Shares of such other Sub-Trust or any class thereof) with such
transfer either (1) being made subject to, or with the assumption by the
transferee of, the liabilities belonging to each Sub-Trust the assets of which
are so transferred, or (2) not being made subject to, or not with the assumption
of, such liabilities; provided, however, that with respect to the Florida
Tax-Free Income Fund and Florida Tax-Free Money Market Fund, no assets belonging
to either such Sub-Trust shall be so transferred unless the terms of such
transfer shall have first been approved at a meeting called for the purpose by
the affirmative vote of the holders of a Majority of the Outstanding Voting
Shares of the affected Sub-Trust. Following such transfer, the Trustees shall
distribute such cash, shares or other securities among the Shareholders of the
Sub-Trust (taking into account the differences among the classes of Shares
thereof, if any) the assets belonging to which have been so transferred; and if
all of the assets of the Trust have been so transferred, the Trust shall be
terminated.
The Trust, or any one or more Sub-Trusts, may, either as the successor,
survivor, or non-survivor, (1) consolidate with one or more other trusts,
partnerships, limited liability companies, associations or corporations
organized under the laws of the State of Delaware or any other state of the
United States, to form a new consolidated trust, partnership, limited liability
company, association or corporation under the laws of which any one of the
constituent entities is organized, or (2) merge into or transfer a substantial
portion of its assets to one or more other trusts, partnerships, limited
liability companies, associations or corporations organized under the laws of
the State of Delaware or any other state of the United States, or have one or
more such
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trusts, partnerships, associations or corporations merged into or transfer a
substantial portion of its assets to it, any such consolidation, merger or
transfer to be upon such terms and conditions as are specified in an agreement
and plan of reorganization entered into by the Trust, or one or more Sub-Trusts
as the case may be, in connection therewith. The Trustees may effect any such
consolidation, merger or transfer without the approval of shareholders of a
Sub-Trust affected thereby; provided, however, that with respect to the Florida
Tax-Free Income Fund and Florida Tax-Free Money Market Fund, any such
consolidation, merger or transfer shall require the affirmative vote of the
holders of a Majority of the Outstanding Voting Shares of the affected
Sub-Trust.
SECTION 7.3. AMENDMENTS. All rights granted to the Shareholders under this
Declaration of Trust are granted subject to the reservation of the right to
amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any Shareholder or Trustee
or repeal the prohibition of assessment upon the Shareholders without the
express consent of each Shareholder or Trustee involved. Subject to the
foregoing, the provisions of this Declaration of Trust (whether or not related
to the rights of Shareholders) may be amended at any time, so long as such
amendment does not adversely affect the rights of any Shareholder with respect
to which such amendment is or purports to be applicable and so long as such
amendment is not in contravention of applicable law, including the 1940 Act, by
an instrument in writing signed by a majority of the then Trustees (or by an
officer of the Trust pursuant to the vote of a majority of such Trustees). Any
amendment to this Declaration of Trust that adversely affects the rights of
Shareholders may be adopted at any time by an instrument in writing signed by a
majority of the then Trustees (or by an officer of the Trust pursuant to a vote
of a majority of such Trustees) when authorized to do so by the vote in
accordance with subsection (e) of Section 4.2 of Shareholders holding a majority
of the Shares entitled to vote. Subject to the foregoing, any such amendment
shall be effective as provided in the instrument containing the terms of such
amendment or, if there is no provision therein with respect to effectiveness,
upon the execution of such instrument and of a certificate (which may be a part
of such instrument) executed by a Trustee or officer of the Trust to the effect
that such amendment has been duly adopted.
SECTION 7.4. FILING OF COPIES; REFERENCES; HEADINGS. The original or a copy of
this instrument and of each amendment hereto shall be kept at the office of the
Trust where it may be inspected by any Shareholder. Anyone dealing with the
Trust may rely on a certificate by an officer of the Trust as to whether or not
any such amendments have been made, as to the identities of the Trustees and
officers, and as to any matters in connection with the Trust hereunder; and,
with the same effect as if it were the original, may rely on a copy certified by
an officer of the Trust to be a copy of this instrument or of any such
amendments. In this instrument and in any such amendment, references to this
instrument, and all expressions like "herein," "hereof" and "hereunder" shall be
deemed to refer to this instrument as a whole as the same may be amended or
affected by any such amendments. The masculine gender shall include the feminine
and neuter genders. Headings are placed herein for convenience of reference only
and shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. This instrument may be executed in
any number of counterparts each of which shall be deemed an original.
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SECTION 7.5. APPLICABLE LAW. This Declaration of Trust is created under and is
to be governed by and construed and administered according to the laws of the
State of Delaware. The Trust shall be of the type referred to in Section 3801 of
the Delaware Statutory Trust Act and of the type commonly called a statutory
trust, and without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust.
Notwithstanding the first sentence of this Section 7.5, there shall not be
applicable to the Trust, the Trustees, or this Declaration of Trust either the
provisions of Section 3540 of Title 12 of the Delaware Code (or any successor
provision) or any provisions of the laws (statutory or common) of the State of
Delaware (other than the Delaware Act) pertaining to trusts that 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 a court or other governmental approval
concerning the acquisition, holding, or disposition of real or personal
property; (iv) fees or other sums applicable 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 or liabilities or authorities and powers of trustees that
are inconsistent with the limitations or liabilities or authorities and powers
of the Trustees set forth or referenced in this Declaration of Trust.
SECTION 7.6. REGISTERED AGENT. The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, is hereby designated
as the registered agent for service of process on the Trust in Delaware. The
address of the registered office of the Trust in the State of Delaware is c/o
The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 7.7. INTEGRATION. This Declaration of Trust constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
IN WITNESS WHEREOF, the undersigned hereunto set their hands and seals for
themselves and their assigns, as of the day and year first above written.
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