SUB-ITEM 77Q1(a)
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
AIM SELECT REAL ESTATE INCOME FUND
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST of AIM Select Real
Estate Income Fund, dated March 11, 2002, is hereby amended and restated as of
May 15, 2002, among Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx,
Xxxxxx X. Xxxx, Xx., Xxxx X. Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxx
Xxxxxx-Xxxxx, Xxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx and Xxxxx X. Xxxxx, as the
Trustees, and each person who becomes a Shareholder in accordance with the
terms hereinafter set forth.
NOW, THEREFORE, the Trustees do hereby declare that all money and
property contributed to the trust hereunder shall be held and managed in trust
under this Agreement for the benefit of the Shareholders as herein set forth
below.
ARTICLE I
NAME, DEFINITIONS, PURPOSE AND CERTIFICATE OF TRUST
Section 1.1 Name. The name of the business trust established hereby is
AIM Select Real Estate Income Fund, and the Trustees may transact the Trust's
affairs in that name. The Trust shall constitute a Delaware business trust in
accordance with the Delaware Act.
Section 1.2 Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "Affiliated Person," "Company," "Person," and "Principal
Underwriter" shall have the meanings given them in the 1940
Act, as modified by or interpreted by any applicable order or
orders of the Commission or any rules or regulations adopted
or interpretive releases of the Commission thereunder. The
term "Commission" shall have the meaning given it in the 1940
Act;
(b) "Agreement" means this Agreement and Declaration of Trust, as
it may be amended from time to time;
(c) "Bylaws" means the Bylaws referred to in Section 4.1(f), as
from time to time amended;
(d) "Cause" means that a Trustee has been found, in a final
determination, to have engaged in gross negligence, willful
misconduct or fraud, to have committed a material breach of
this Agreement or to have been convicted of a felony. For
purposes of this definition, "final determination" means (i)
a determination set forth in a binding settlement agreement
signed by the Trustee alleged to have committed an act
arguably justifying removal, (ii) if judicial relief is
permitted hereunder, a final judicial determination, not
subject to further appeal, by a court of competent
jurisdiction, or (iii) if arbitration is required by
applicable law, a final arbitral determination not subject to
further review;
(e) "Class" means a portion of Shares of the Portfolio
established in accordance with the provisions of Sections
2.3(b) and 2.3(c); provided, however, that with respect to
the Class designated as the Preferred Shares, all Preferred
Series thereof collectively shall be a part of, and included
in, the Class of Preferred Shares, and no Preferred Series
thereof shall be treated as a separate Class for any purpose
herein;
(f) "Common Shares" has the meaning specified in Sections 2.3(b)
and 2.3(c);
(g) "Covered Person" means a person who is or was a Trustee,
officer, employee or agent of the Trust, or is or was serving
at the request of the Trustees as a director, trustee,
partner, officer, employee or agent of a corporation, trust,
partnership, joint venture or other enterprise;
(h) The "Delaware Act" refers to the Delaware Business Trust Act,
12 Del. C.ss.3801 et seq., as such Act may be amended from
time to time;
(i) "Exempt Merger" means a merger or consolidation of the Trust
or the Portfolio or any Class thereof with or into another
Company or with and into another Class or a conversion of the
Trust or the Portfolio or any Class thereof where either (A)
the primary purpose of such merger or consolidation is to
change the Trust's or the Portfolio's domicile or form of
organization or (B) after giving effect to such merger,
consolidation or conversion, based on the number of
Outstanding Shares as of a date selected by the Trustees, the
Shareholders of the Trust or the Portfolio or such Class will
have a majority of the outstanding shares of the surviving or
converted Company or Class, as the case may be;
(j) "Exempt Sale" means a sale, lease or exchange or all or
substantially all the assets of the Portfolio to any Person
where the primary purpose of such sale is to change the
Trust's or the Portfolio's domicile or form of organization;
(k) "Exempt Termination" means the termination of the Trust or
the Portfolio or any Class thereof where, as of the date on
which the Trustees have determined to so terminate the Trust
or the Portfolio or such Class, there are fewer than 100
holders of record of the Trust or of the Portfolio or of such
terminating Class;
(l) "fund complex" has the meaning specified in Regulation 14A
under the Securities Exchange Act of 1934, as amended from
time to time;
(m) "Governing Instrument" means collectively this Agreement, the
Bylaws, all amendments to this Agreement and the Bylaws and
every resolution of the Trustees or any committee of the
Trustees that by its terms is incorporated by reference into
this Agreement or stated to constitute part of the Trust's
Governing Instrument or that is incorporated herein by
Section 2.3 of this Agreement;
(n) "Majority Shareholder Vote" means "the vote of a majority of
the outstanding voting securities" (as defined in the 0000
Xxx) of the Trust, Portfolio, or Class, as applicable;
(o) "Majority Trustee Vote" means the vote of a majority of the
Trustees;
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(p) The "1940 Act" means the Investment Company Act of 1940, as
amended from time to time;
(q) "Outstanding Shares" means Shares shown on the books of the
Trust or its transfer agent as then issued and outstanding,
but excludes Shares of the Portfolio that the Portfolio or
the Trust has redeemed or repurchased;
(r) "Portfolio" means the series of Shares of the Trust, within
the meaning of Section 3804(a) of the Delaware Act,
established in accordance with the provisions of Section
2.3(a);
(s) "Preferred Series" means a portion of the Preferred Shares
established in accordance with the provisions of Section
2.3(c);
(t) "Preferred Shares" has the meaning specified in Section
2.3(c);
(u) "Preferred Share Trustees" has the meaning specified in
Section 3.2;
(v) "Principal Shareholder" has the meaning specified in Section
6.2(b);
(w) "Senior Securities" has the meaning specified in Section 2.8;
(x) "Shareholder" means a record owner of Outstanding Shares of
the Trust;
(y) "Shares" shall include the Common Shares and the Preferred
Shares, and means, as to the Portfolio or any Class thereof,
the equal proportionate transferable units of beneficial
interest into which the beneficial interest of the Portfolio
or such Class thereof shall be divided and may include
fractions of Shares in 1/1000th of a Share or integral
multiples thereof as well as whole Shares;
(z) The "Trust" means AIM Select Real Estate Income Fund, the
Delaware business trust established hereby;
(aa) The "Trustees" means the Persons who have signed this
Agreement as trustees so long as they shall continue to serve
as trustees of the Trust in accordance with the terms hereof,
and all other Persons who may from time to time be duly
appointed as Trustee in accordance with the provisions of
Section 3.4, or elected as Trustee by the Shareholders, and
reference herein to a Trustee or to the Trustees shall refer
to such Persons in their capacity as Trustees hereunder; and
(bb) "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by
or for the account of the Portfolio, or by the Trustees on
behalf of the Portfolio.
Section 1.3 Purpose. The purpose of the Trust is to conduct, operate
and carry on the business of a management investment company registered under
the 1940 Act through the Portfolio investing primarily in securities and other
Trust Property and to carry on such other business as the Trustees may from
time to time determine pursuant to their authority under this Agreement.
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Section 1.4 Certificate of Trust. Immediately upon the execution of
this Agreement, the Trustees shall file a Certificate of Trust with respect to
the Trust in the Office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act. From time to time, the Trustees shall cause such
Certificate of Trust to be amended to reflect changes in the composition of the
Board of Trustees.
ARTICLE II
BENEFICIAL INTEREST
Section 2.1 Shares of Beneficial Interest. The Trust is authorized to
issue one series of beneficial interests within the meaning of Section 3804(a)
of the Delaware Act, which shall constitute the Trust's sole Portfolio. The
beneficial interests of the Portfolio shall be divided into an unlimited number
of Shares, with par value of $0.001 per Share. All Shares issued hereunder,
including without limitation, Shares issued in connection with a dividend or
other distribution in Shares or a split or reverse split of Shares, shall be
fully paid and nonassessable.
Section 2.2 Issuance of Shares. Except as otherwise provided for
herein, the Trustees in their discretion may, from time to time, without vote
of the Shareholders, issue Shares, in addition to the then issued and
Outstanding Shares, to such party or parties and for such amount and type of
consideration, subject to applicable law, including cash or securities, at such
time or times and on such terms as the Trustees may deem appropriate, 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. In connection with any issuance of Shares, the Trustees may issue
fractional Shares. The Trustees may from time to time divide or combine the
Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Portfolio. Contributions to the Trust
may be accepted for, and Shares shall be redeemed or repurchased as, whole
Shares and/or 1/1,000th of a Share or integral multiples thereof.
Section 2.3 Establishment of Portfolio and Classes.
(a) The Trustees hereby establish and designate as the Trust's
sole Portfolio the AIM Select Real Estate Income Fund. The
Shares of the Portfolio shall have the relative rights and
preferences provided for herein and such rights and
preferences as may be designated by the Trustees in any
amendment or modification to the Trust's Governing
Instrument. The Trust shall maintain separate and distinct
records for the Portfolio and shall hold and account for the
Trust Property belonging thereto.
(b) The Portfolio of the Trust shall initially have one Class,
with an unlimited number of Shares. The Trustees hereby
establish and designate for the Portfolio, as the Portfolio's
initial Class, Shares, having the powers, preferences,
rights, qualifications, limitations and restrictions
described in Sections 2.5 and 2.6 (the "Common Shares").
Expenses, costs, charges, and reserves allocated to a Class
in accordance with Section 2.5(c) shall be borne solely by
that Class. Dividends declared and payable to the Common
Shares pursuant to Section 7.1 shall reflect the items
separately allocated thereto pursuant to the preceding
sentence.
(c) The Trustees may at any time establish an additional Class of
Shares of the Portfolio, with an unlimited number of Shares
unless otherwise specified, and generally having the powers,
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rights, qualifications, limitations and restrictions
described in Sections 2.5 and 2.7 (the "Preferred Shares").
Such Preferred Shares shall be established by the adoption of
one or more resolutions by the Trustees. Each such resolution
is hereby incorporated herein by this reference and made a
part of the Governing Instrument whether or not expressly
stated in such resolution, and shall be effective upon the
occurrence of the date stated therein (or, if no such date is
stated, upon the date of such adoption). The Trustees also
may establish one or more Preferred Series of the Preferred
Shares in accordance with the provisions of Section 18(c) of
the 1940 Act, each with an unlimited number of Preferred
Shares unless otherwise specified (each, a "Preferred
Series"). Each such Preferred Series shall be established by
the adoption of one or more resolutions by the Trustees. Each
such resolution is hereby incorporated herein by this
reference and made a part of the Governing Instrument whether
or not expressly stated in such resolution, and shall be
effective upon the occurrence of the date stated therein (or,
if no such date is stated, upon the date of such adoption).
Section 2.4 Actions Affecting the Portfolio and Classes. Subject to
the right of Shareholders, if any, to vote pursuant to Section 6.1 and except
as otherwise provided for herein, the Trustees shall have full power and
authority, in their sole discretion without obtaining any prior authorization
or vote of the Shareholders of the Portfolio or any Class thereof, to establish
and designate and to change in any manner the Portfolio or any Class thereof;
to fix or change such preferences, voting powers, rights, and privileges of the
Portfolio or any Class thereof, as the Trustees may from time to time
determine, including any change that may adversely affect a Shareholder; to
divide or combine the Shares of the Portfolio or any Class thereof into a
greater or lesser number; to classify or reclassify or convert any issued
Shares of the Portfolio or any Class thereof into one or more Classes of Shares
of the Portfolio; and to take such other action with respect to the Shares as
the Trustees may deem desirable. The Portfolio and any Class thereof may issue
any number of Shares but need not issue any Shares. At any time that there are
no Outstanding Shares of the Portfolio or any Class thereof previously
established and designated, the Trustees may abolish the Portfolio or that
Class and the establishment and designation thereof.
Section 2.5 Relative Rights and Preferences. Unless the establishing
resolution or any other resolution adopted pursuant to Section 2.3 otherwise
provides, Shares of the Portfolio and any Class thereof established hereunder
shall have the following relative rights and preferences:
(a) Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued
by the Trust or the Trustees, whether of the same or other
Class.
(b) All consideration received by the Trust for the issue or sale
of Shares of the Portfolio, 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 and may be
referred to herein as "assets belonging to" the Portfolio.
The assets belonging to the Portfolio shall belong to the
Portfolio for all purposes, subject only to the rights of
creditors of the Portfolio.
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(c) The Portfolio shall be charged with the liabilities of the
Portfolio, and all expenses, costs, charges and reserves
attributable to the Portfolio shall be borne by the
Portfolio; provided that the Trustees may, in their sole
discretion, allocate or authorize the allocation of
particular expenses, costs, charges, and/or reserves of the
Portfolio to fewer than all the Classes thereof. Any general
liabilities, expenses, costs, charges or reserves of the
Portfolio that are not readily identifiable as chargeable to
or bearable by any particular Class shall be allocated and
charged by the Trustees between or among any one or more of
the Classes in such manner as the Trustees in their sole
discretion deem fair and equitable. Each such allocation
shall be conclusive and binding upon the Shareholders for all
purposes.
(d) Shares redeemed or repurchased by the Portfolio or the Trust
shall be deemed to be canceled.
(e) The Trust may issue Shares in fractional denominations of
1/1000th of a Share or integral multiples thereof to the same
extent as its whole Shares, and Shares in fractional
denominations shall be Shares having proportionately to the
respective fractions represented thereby all the rights of
whole Shares of the same Class, including without limitation,
the right to vote, the right to receive dividends and
distributions and the right to participate upon termination
of the Trust, but excluding the right to receive a
certificate representing fractional Shares.
All references to Shares in this Agreement shall be deemed to be
shares of the Portfolio, or Classes thereof, as the context may require. All
provisions herein relating to the Trust shall apply equally to the Portfolio,
and each Class thereof, except as the context otherwise requires. All
references to Preferred Shares in this Agreement shall be deemed to include any
Preferred Series thereof, and all provisions herein relating to the Preferred
Shares shall apply collectively to all Preferred Series thereof and shall not
apply separately to any such Preferred Series.
Section 2.6 Additional Rights and Preferences of Common Shares.
(a) Except as set forth in paragraph (c) of Section 2.5, each
Common Share shall represent an equal pro rata interest in
the assets belonging to the Portfolio and shall have
identical voting, dividend, liquidation and other rights,
preferences, powers, restrictions, limitations,
qualifications and designations and terms and conditions with
each other Common Share.
(b) Subject to the rights of the holders of the Preferred Shares,
if any, in the event of the termination of the Trust the
holders of the Common Shares shall be entitled to receive pro
rata the net distributable assets of the Portfolio.
(c) The holders of the Common Shares shall not, as such holders,
have any right to acquire, purchase or subscribe for any
Common Shares or securities of the Trust which it may
hereafter issue or sell, other than such right, if any, as
the Trustees in their discretion may determine.
(d) Subject to the rights of the holders of the Preferred Shares,
if any, dividends or other distributions, when, as and if
declared by the Trustees, shall be shared equally by the
holders of Common Shares on a Share for Share basis. The
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Trustees may direct that any dividends or other distributions
or any portion thereof as declared and distributed shall be
paid in cash to the holder, or, alternatively, may direct
that any such dividends be reinvested in full and fractional
Shares of the Trust, if such holder elects to have them
reinvested.
(e) Common Shares may be issued from time to time, without the
vote of the Shareholders (or, if the Trustees in their sole
discretion deem advisable, with the vote of Shareholders),
either for cash or for such other consideration (which may be
in any one or more instances a certain specified
consideration or certain specified considerations) and on
such terms as the Trustees, from time to time, may deem
advisable, and the Portfolio may in such manner acquire other
assets (including the acquisition of assets subject to, and
in connection with the assumption of liabilities).
Section 2.7 Additional Rights and Preferences of Preferred Shares. If
the Trust establishes and issues Preferred Shares, such Preferred Shares shall
be issued from time to time in one or more Preferred Series with such
distinctive serial designations and (i) may have such additional voting powers,
full or limited; (ii) may be subject to redemption or repurchase at such time
or times and at such price or prices; (iii) may be entitled to receive
dividends (which may be cumulative or noncumulative) at such rate or rates, on
such conditions, and at such times, and payable in preference to, or in such
relation to, the dividends payable on the Common Shares; (iv) may have such
additional rights upon the termination of, or upon any distribution of the
assets of, the Trust, the Portfolio, the Preferred Shares or any Preferred
Series thereof; (v) may be made convertible into, or exchangeable for, Common
Shares, at such price or prices or at such rates of exchange and with such
adjustments; and (vi) shall have such other relative, participating, optional
or other special rights, qualifications, limitations or restrictions thereof,
all as shall hereafter be stated and expressed in the resolution or resolutions
providing for the issuance of such Preferred Shares from time to time adopted
by the Trustees (or a committee thereof) in accordance with Section 2.3(c) and
all of which shall be in addition to any other rights explicitly set forth in
the Governing Instrument. Each such resolution is hereby incorporated herein by
this reference and made a part of the Governing Instrument whether or not
expressly stated in such resolution, and shall be effective upon the occurrence
of the date stated therein (or, if no such date is stated, upon the date of
such adoption). Any of such matters may be made dependent upon facts
ascertainable outside this Agreement, or outside the resolution or resolutions
providing for the issuance of such Preferred Shares.
Section 2.8 Establishment of Senior Securities. Neither the Trust nor
the Portfolio shall initially have any Senior Securities (as defined below);
provided, however, that the Trustees may establish (1) a Class of Preferred
Shares having priority over the Common Shares in accordance with this Article
II or (2) bonds, debentures, notes or similar obligations or instruments
constituting a security and evidencing indebtedness for purposes of the 1940
Act and having priority over the Common Shares (together, "Senior Securities"),
upon such terms and conditions as the Trustees shall establish in one or more
resolutions and in accordance with the 1940 Act and other applicable federal or
state securities laws. Each Senior Security shall be established by the
adoption of one or more resolutions by the Trustees. Each such resolution is
hereby incorporated herein by this reference and made a part of the Governing
Instrument whether or not expressly stated in such resolution, and shall be
effective upon the occurrence of both (i) the date stated therein (or, if no
such date is stated, upon the date of such adoption) and (ii) the execution of
an amendment to this Agreement, if required by such resolution, establishing
and designating such Senior Security.
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Section 2.9 Investment in the Trust. Investments may be accepted by
the Trust from such Persons, at such times, on such terms, and for such
consideration, which may consist of cash or tangible or intangible property or
a combination thereof, as the Trustees from time to time may authorize. At the
Trustees' sole discretion, such investments, subject to applicable law, may be
in the form of cash or securities in which the Portfolio is authorized to
invest, valued as provided in applicable law. Each such investment shall be
recorded in the individual Shareholder's account in the form of full and
fractional Shares of the applicable Class of the Portfolio.
Section 2.10 Personal Liability of Shareholders. As provided by
applicable law, no Shareholder of the Trust shall be personally liable for the
debts, liabilities, obligations and expenses incurred by, contracted for, or
otherwise existing with respect to, the Trust or the Portfolio or any Class
thereof. Neither the Trust nor the Trustees, nor any officer, employee, or
agent of the Trust shall have any power to bind personally any Shareholder or
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 by way of subscription for any Shares or otherwise. The Shareholders
shall be entitled, to the fullest extent permitted by applicable law, to the
same limitation of personal liability as is extended under the Delaware General
Corporation Law to stockholders of private corporations for profit. Every note,
bond, contract or other undertaking issued by or on behalf of the Trust or the
Trustees relating to the Trust or the Portfolio shall include a recitation
limiting the obligation represented thereby to the Portfolio and the assets
belonging thereto (but the omission of such a recitation shall not operate to
bind any Shareholder or Trustee of the Trust or otherwise limit any benefits
set forth in the Delaware Act that may be applicable to such Persons).
Section 2.11 Assent to Agreement. Every Shareholder, by virtue of
having purchased a Share, shall be held to have expressly assented to, and
agreed to be bound by, the terms hereof. The death of a Shareholder during the
continuance of the Trust shall not operate to terminate the same nor entitle
the representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to
rights of said decedent under the Governing Instrument.
ARTICLE III
THE TRUSTEES
Section 3.1 Management of the Trust. 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 Agreement. The Trustees shall have power to conduct
the business of the Trust and the Portfolio and carry on their operations in
any and all of its branches and maintain offices both within and without the
State of Delaware, in any and all states of the United States of America, in
the District of Columbia, in any and all commonwealths, territories,
dependencies, colonies, or possessions of the United States of America, and in
any and all foreign jurisdictions 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 or the Portfolio although such things are
not herein specifically mentioned. Any determination as to what is in the
interests of the Trust or the Portfolio made by the Trustees in good faith
shall be conclusive. In construing the provisions of this Agreement, the
presumption shall be in favor of a grant of power to the Trustees.
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The enumeration of any specific power in this Agreement shall not be
construed as limiting the aforesaid power. The powers of the Trustees may be
exercised without order of or resort to any court or other authority.
Section 3.2 Trustees. The number of Trustees shall be such number as
shall be fixed from time to time by a majority of the Trustees; provided,
however, that the number of Trustees shall in no event be less than two (2) nor
more than fifteen (15). The initial Trustees are those first identified above.
If there are any Preferred Shares issued and outstanding, holders of such
Preferred Shares shall have the right to elect two (2) of the Trustees (the
"Preferred Share Trustees"), voting separately as a Class, at the next meeting
of Shareholders to elect Trustees at which the Preferred Share Trustee's term
expires. One Preferred Share Trustee shall be a member of Class II of the
Trustees and the other Preferred Share Trustee shall be a member of Class III
of the Trustees (as such terms are described in Section 3.3(a)). The initial
Preferred Share Trustees shall be designated in one or more resolutions by the
Trustees. Each such resolution is hereby incorporated herein by this reference
and made a part of the Governing Instrument whether or not expressly stated in
such resolution, and shall be effective upon the occurrence of the date stated
therein (or, if no such date is stated, upon the date of such adoption).
Section 3.3 Classification of Board; Terms of Office of Trustees.
(a) The Board of Trustees shall be classified, with respect to
their respective terms of office, into three classes: Class
I, Class II and Class III. The number of Trustees in each
Class shall be as nearly equal in number as reasonably
possible. The Trustees in each Class shall hold office until
their successors are elected and qualified. Each member of
the Board of Trustees in Class I shall initially hold office
until the first meeting of Shareholders to elect Trustees;
each member of the Board of Trustees in Class II shall
initially hold office until the second meeting of
Shareholders to elect Trustees; and each member of the Board
of Trustees in Class III shall initially hold office until
the third meeting of Shareholders to elect Trustees. At each
meeting of the Shareholders to elect Trustees, the successors
to the Class of Trustees whose terms expire at that meeting
shall be elected to hold office for a term of three years and
until the election and qualification of their respective
successors. The initial Trustee in Class I shall be Xxxxx X.
Xxxxxxx, the initial Trustee in Class II shall be Xxxxx X.
Xxxxx, and the initial Trustee in Class III shall be Xxxxxx
X. Xxxxxx. The Board of Trustees shall, by one or more
resolutions, further classify any additional Trustees. Each
such resolution is hereby incorporated herein by this
reference and made a part of the Governing Instrument whether
or not expressly stated in such resolution, and shall be
effective upon the occurrence of the date stated therein (or,
if no such date is stated, upon the date of such adoption).
(b) For the duration of their terms, the Trustees shall hold
office during the lifetime of this Trust, and until its
termination as herein provided; except that (A) any Trustee
may resign his trusteeship or may retire by written
instrument signed by him and delivered to the other Trustees,
which shall take effect upon such delivery or upon such later
date as is specified therein; (B) any Trustee may be removed
at any time by written instrument, signed by at least
two-thirds of the number of Trustees prior to such removal,
specifying the date when such removal shall become effective;
(C) any Trustee who has died, become physically or mentally
incapacitated by reason of disease or otherwise, or is
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otherwise unable to serve, may be retired by written
instrument signed by a majority of the other Trustees,
specifying the date of his retirement; and (D) a Trustee may
be removed for Cause at any meeting of the Shareholders as
provided for in Section 6.2(a)(7).
Section 3.4 Vacancies and Appointment of Trustees. In case of the
declination to serve, death, resignation, retirement or removal of a Trustee,
or a Trustee is otherwise unable to serve, or an increase in the number of
Trustees, a vacancy shall occur. Whenever a vacancy in the Board of Trustees
shall occur, until such vacancy is filled, the other Trustees shall have all
the powers hereunder and the certification of the other Trustees of such
vacancy shall be conclusive. In the case of an existing vacancy, the remaining
Trustees may fill such vacancy by appointing such other person as they in their
discretion shall see fit, or may leave such vacancy unfilled or may reduce the
number of Trustees to not less than two (2) Trustees. Such appointment shall be
evidenced by a written instrument signed by a majority of the Trustees in
office or by resolution of the Trustees, duly adopted, which shall be recorded
in the minutes of a meeting of the Trustees, whereupon the appointment shall
take effect.
An appointment of a Trustee may be made by the Trustees then in office
in anticipation of a vacancy to occur by reason of retirement, resignation, or
removal of a Trustee, or an increase in number of Trustees effective at a later
date, provided that said appointment shall become effective only at the time or
after the expected vacancy occurs. As soon as any Trustee appointed pursuant to
this Section 3.4 or elected by the Shareholders shall have accepted the Trust
and agreed in writing to be bound by the terms of the Agreement, the Trust
estate shall vest in the new Trustee or Trustees, together with the continuing
Trustees, without any further act or conveyance, and he shall be deemed a
Trustee hereunder.
Section 3.5 Temporary Absence of Trustee. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six months at any one
time to any other Trustee or Trustees, provided that in no case shall less than
two Trustees personally exercise the other powers hereunder except as herein
otherwise expressly provided.
Section 3.6 Effect of Death, Resignation, etc. of a Trustee. The
declination to serve, death, resignation, retirement, removal, incapacity, or
inability of the Trustees, or any one of them, shall not operate to terminate
the Trust or to revoke any existing agency created pursuant to the terms of
this Agreement.
Section 3.7 Ownership of Assets of the Portfolio. The assets of the
Portfolio thereof shall be held separate and apart from any assets now or
hereafter held in any capacity other than as Trustee hereunder by the Trustees
or any successor Trustees. Legal title in all of the assets of the Portfolio
and the right to conduct any business shall at all times be considered as
vested in the Trustees on behalf of the Portfolio, except that the Trustees may
cause legal title to any Trust Property to be held by or in the name of the
Portfolio, or in the name of any Person as nominee. No Shareholder shall be
deemed to have a severable ownership in any individual asset of the Portfolio
or any right of partition or possession thereof, but each Shareholder shall
have, except as otherwise provided for herein, a proportionate undivided
beneficial interest in the assets belonging to the Portfolio in which the
Shareholder holds Shares. The Shares shall be personal property giving only the
rights specifically set forth in this Agreement or the Delaware Act.
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ARTICLE IV
POWERS OF THE TRUSTEES
Section 4.1 Powers. 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.
Without limiting the foregoing and subject to any applicable limitation in this
Agreement or the Bylaws of the Trust, the Trustees shall have power and
authority:
(a) 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, and to sell, exchange,
lend, pledge, mortgage, hypothecate, write options on and
lease any or all of the assets of the Portfolio;
(b) To operate as, and to carry on the business of, an investment
company, and to exercise all the powers necessary and
appropriate to the conduct of such operations;
(c) To borrow money and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by mortgaging,
pledging or otherwise subjecting as security the Trust
Property; to endorse, guarantee, or undertake the performance
of an obligation or engagement of any other Person and to
lend Trust Property;
(d) To authorize the issuance of Senior Securities in accordance
with Section 2.8;
(e) To provide for the distribution of Shares either through a
principal underwriter in the manner hereafter provided for or
by the Trust itself, or both, or otherwise pursuant to a plan
of distribution of any kind;
(f) To adopt Bylaws not inconsistent with this Agreement
providing for the conduct of the business of the Trust and
the Portfolio and to amend and repeal them to the extent that
they do not reserve such right to the Shareholders; such
Bylaws shall be deemed incorporated and included in this
Agreement;
(g) To elect and remove such officers and appoint and terminate
such agents as they consider appropriate;
(h) To employ one or more banks, trust companies or companies
that are members of a national securities exchange or such
other domestic or foreign entities as custodians of any
assets of the Portfolio subject to any conditions set forth
in this Agreement or in the Bylaws;
(i) To retain one or more transfer agents and shareholder
servicing agents;
(j) To set record dates in the manner provided herein or in the
Bylaws;
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(k) To delegate such authority as they consider desirable to any
officers of the Trust and to any investment adviser, manager,
administrator, custodian, underwriter or other agent or
independent contractor;
(l) To sell or exchange any or all of the assets of the
Portfolio, subject to the right of Shareholders, if any, to
vote on such transaction pursuant to Section 6.1;
(m) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to
execute and deliver proxies and 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 or property as the Trustee shall deem
proper;
(n) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(o) To hold any security or property in a form not indicating any
trust, whether in bearer, book entry, unregistered or other
negotiable form; or either in the name of the Trust or of the
Portfolio or a custodian or a nominee or nominees, subject in
either case to proper safeguards according to the usual
practice of Delaware business trusts or investment companies;
(p) To establish a Class of Preferred Shares and one or more
Preferred Series thereof, in accordance with the provisions
of Article II hereof and having relative rights, powers and
duties as they may provide consistent with this Agreement and
applicable law;
(q) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or
concern, any security of which is held in the Trust; to
consent to any contract, lease, mortgage, purchase, or sale
of property by such corporation or concern, and to pay calls
or subscriptions with respect to any security held in the
Trust;
(r) To engage in Exempt Mergers, Exempt Sales and Exempt
Terminations;
(s) To compromise, arbitrate, or otherwise adjust claims in favor
of or against the Trust or any matter in controversy
including, but not limited to, claims for taxes;
(t) To declare and pay dividends and make distributions of income
and of capital gains and capital to Shareholders in the
manner hereinafter provided;
(u) To establish, from time to time, a minimum investment for
Shareholders in the Portfolio or any Class thereof;
(v) To redeem or repurchase Shares as provided for in this
Agreement, upon such terms and conditions as the Trustees
shall establish;
(w) To establish one or more committees, to delegate any of the
powers of the Trustees to said committees and to adopt a
committee charter providing for such responsibilities,
membership (including Trustees, officers or other agents of
the Trust therein) and any other characteristics of said
committees as the Trustees may deem proper, each of which
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committees may consist of less than the whole number of
Trustees then in office, and may be empowered to act for and
bind the Trustees and the Trust, as if the acts of such
committee were the acts of all the Trustees then in office;
(x) To interpret the investment policies, practices or
limitations of the Portfolio;
(y) To establish a registered office and have a registered agent
in the State of Delaware; and
(z) In general, to carry on any other business in connection with
or incidental to any of the foregoing powers, to do
everything necessary, suitable or proper for the
accomplishment of any purpose or the attainment of any object
or the furtherance of any power hereinbefore set forth,
either alone or in association with others, and to do every
other act or thing incidental or appurtenant to or growing
out of or connected with the aforesaid business or purposes,
objects or powers.
The foregoing clauses shall be construed both as objects and powers,
and the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trustees. Any action by one or
more of the Trustees in their capacity as such hereunder shall be deemed an
action on behalf of the Trust or the Portfolio, and not an action in an
individual capacity.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation to make
any inquiry concerning the authority of the Trustees, or to see to the
application of any payments made or property transferred to the Trustees or
upon their order.
Section 4.2 Issuance, Redemption and Repurchase of Shares. The
Trustees shall have the power to issue, sell, redeem, repurchase, retire,
cancel, acquire, hold, resell, reissue, dispose of, and otherwise deal in
Shares and, subject to the provisions set forth in Articles II and VII hereof,
to apply to any such redemption, repurchase, retirement, cancellation or
acquisition of Shares any funds or property of the Trust, or any assets
belonging to the Portfolio, with respect to which such Shares are issued.
Section 4.3 Action by the Trustees. The Board of Trustees or any
committee thereof shall act by majority vote of those present at a meeting duly
called (including a meeting by telephonic or other electronic means, unless the
1940 Act requires that a particular action be taken only at a meeting of the
Trustees in person) at which a quorum required by the Bylaws is present. Any
action that may be taken by the Board of Trustees or any committee thereof by
majority vote at a meeting duly called and at which a quorum required by the
Bylaws is present, may also be taken by written consent of at least
seventy-five percent (75%) of the Trustees or members of the committee, as the
case may be, without a meeting, provided that the writing or writings are filed
with the minutes of proceedings of the Board or committee. Written consents or
waivers of the Trustees may be executed in one or more counterparts. Any
written consent or waiver may be provided and delivered to the Trust by any
means by which notice may be given to a Trustee. Subject to the requirements of
this Agreement and the 1940 Act, the
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Trustees by Majority Trustee Vote may delegate to any Trustee or Trustees
authority to approve particular matters or take particular actions on behalf of
the Trust.
Section 4.4 Principal Transactions. The Trustees may, on behalf of the
Portfolio, buy any securities from or sell any securities to, or lend any
assets of the Portfolio 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 adviser, distributor, or transfer agent for
the Trust or with any Affiliated Person of such Person; and the Trust may
employ any such Person, or firm or Company in which such Person is an
Affiliated Person, as broker, legal counsel, registrar, investment adviser,
distributor, administrator, transfer agent, dividend disbursing agent,
custodian, or in any capacity upon customary terms, subject in all cases to
applicable laws, rules, and regulations and orders of regulatory authorities.
Section 4.5 Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust or the Portfolio, or partly out of the principal and partly out of
income, and to charge or allocate to, between or among such one or more of the
Classes, as they deem fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Trust or Portfolio or Class, 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 and manager, administrator,
principal underwriter, auditors, counsel, custodian, transfer agent,
Shareholder servicing agent, and such other agents or independent contractors
and such other expenses and charges as the Trustees may deem necessary or
proper to incur.
Section 4.6 Trustee Compensation. The Trustees as such shall be
entitled to reasonable compensation from the Portfolio. They may fix the amount
of their compensation. Nothing herein shall in any way prevent the employment
of any Trustee for advisory, management, administrative, legal, accounting,
investment banking, underwriting, brokerage, or investment dealer or other
services and the payment for the same by the Portfolio.
Section 4.7 Independent Trustee. A Trustee who is an "Independent
Trustee," as that term is defined in the Delaware Act, shall be deemed to be an
Independent Trustee when making any determinations or taking any action as a
Trustee.
ARTICLE V
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER AND
TRANSFER AGENT
Section 5.1 Investment Adviser. The Trustees may in their discretion,
from time to time, enter into an investment advisory or management contract or
contracts with respect to the Trust or the Portfolio whereby the other party or
parties to such contract or contracts shall undertake to furnish the Trustees
with such management, investment advisory, statistical and research facilities
and services and such other facilities and services, if any, and all upon such
terms and conditions, as the Trustees may in their discretion determine.
The Trustees may authorize the investment adviser to employ, from time
to time, one or more sub-advisers to perform such of the acts and services of
the investment adviser, and upon such terms and conditions, as may be agreed
upon among the Trustees, the investment adviser and sub-adviser. Any references
in this Agreement to the investment adviser shall be deemed to include such
sub-advisers, unless the context otherwise requires.
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Section 5.2 Other Service Contracts. The Trustees may authorize the
engagement of a principal underwriter, transfer agent, administrator,
custodian, and similar service providers.
Section 5.3 Parties to Contract. Any contract of the character
described in Sections 5.1 and 5.2 may be entered into with any corporation,
firm, partnership, 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.
Section 5.4 Miscellaneous. 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 Company or of or for any parent or affiliate of any
Company, with which an advisory or administration contract, or principal
underwriter's or distributor's contract, or transfer, shareholder servicing,
custodian or other agency contract may have been or may hereafter be made, or
that any such Company, or any parent or affiliate thereof, is a Shareholder or
has an interest in the Trust, or that (ii) any Company with which an advisory
or administration contract or principal underwriter's or distributor's
contract, or transfer, shareholder servicing, custodian, or other agency
contract may have been or may hereafter be made also has an advisory or
administration contract, or principal underwriter's or distributor's contract,
or transfer, shareholder servicing, custodian or other agency contract with one
or more other companies, or has other business or interests shall not affect
the validity of any such contract 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 or its Shareholders.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS, GENERAL VOTING STANDARDS AND MEETING
Section 6.1 Voting Powers and General Voting Standards. The
Shareholders shall have power to vote only to:
(a) elect Trustees in accordance with Sections 3.2 and 3.3,
provided that a meeting of Shareholders has been called for
that purpose;
(b) approve any of the actions or transactions described in
Section 6.2 of this Agreement, provided that the provisions
of Section 6.2 apply to any such actions or transactions; and
(c) approve such additional matters as may be required by law or
as the Trustees, in their sole discretion, shall determine.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required or permitted by law, this
Agreement or any of the Bylaws of the Trust to be taken by Shareholders.
On any matter submitted to a vote of the Shareholders, all Shares
shall be voted together, except when otherwise required by this Agreement or by
applicable law. In addition, if the Trustees have determined that a matter
submitted to a vote of the Shareholders affects fewer than all Classes, then
only the Shareholders of such affected Class or Classes shall be entitled to
vote thereon. Finally, if the Trustees have determined that a matter submitted
to a vote of the Shareholders affects the interests of one Class differently
from the interests of any
15
other Class, each Class that is affected differently from any other Class shall
be entitled to vote separately thereon.
Each whole Share shall be entitled to one vote as to any matter on
which it is entitled to vote, and each fractional Share shall be entitled to a
proportionate fractional vote.
In the case of any action or transaction set forth in Sections
6.2(a)(1) through 6.2(a)(6), the approval, adoption, or authorization of the
action or transaction in question shall require a Majority Shareholder Vote
rather than the affirmative vote or consent of the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the Outstanding Shares entitled
to vote thereon as provided for in Section 6.2(a) if the action or transaction
in question has previously been approved, adopted, or authorized by the
affirmative vote of two-thirds of the total number of Trustees, including
two-thirds of the Trustees who are not "interested persons" of the Trust, as
that term is defined in the 1940 Act.
If there are Preferred Shares issued and outstanding, in the case of
(i) any action or transaction set forth in Sections 6.2(a)(1) or 6.2(a)(6) or
(ii) any action or transaction set forth in Sections 6.2(a)(2), 6.2(a)(3) or
6.2(a)(4) that adversely affects the Preferred Shares within the meaning of
Section 18(a)(2)(D) of the 1940 Act, then approval, adoption, or authorization
of the action or transaction in question shall also require the affirmative
vote or consent of the holders of at least sixty-six and two-thirds percent (66
2/3%) of the Preferred Shares voting as a separate Class; provided however,
that such separate Class vote shall be a Majority Shareholder Vote if the
action or transaction in question has previously been approved, adopted, or
authorized by the affirmative vote of two-thirds of the total number of
Trustees.
The vote necessary to approve other matters shall be set forth in the
Bylaws.
Section 6.2 Voting Requirements for Certain Actions and Transactions.
(a) Notwithstanding any other provision of this Agreement, and
subject to the exceptions provided in Section 6.1, each of
the following actions and transactions shall require the
affirmative vote or consent of the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the Outstanding
Shares entitled to vote thereon, including Preferred Shares,
if any:
(1) the conversion of the Trust from a closed-end
investment company to an open-end investment
company;
(2) the merger or consolidation of the Trust or the
Portfolio or any Class thereof with or into another
Company or with and into another Class, other than
an Exempt Merger;
(3) the issuance by the Trust, in one transaction or in
a series of transactions, of any securities of the
Trust having an aggregate value of five percent (5%)
or more of the total value of the Outstanding Shares
to any Principal Shareholder for cash;
(4) the sale, lease or exchange of all or substantially
all the assets of the Portfolio to any Person, other
than an Exempt Sale;
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(5) the termination of the Trust or the Portfolio or any
Class thereof (other than an Exempt Termination),
provided that a meeting of Shareholders has been
called for that purpose;
(6) any amendment to this Agreement that makes the
Shares a "redeemable security" as that term is
defined in the 1940 Act;
(7) the removal of one or more Trustees for Cause by the
Shareholders, provided that a meeting of
Shareholders has been called for that purpose and
further provided that only holders of Preferred
Shares shall be entitled to vote to remove either of
the Preferred Share Trustees;
(8) any amendment to Section 3.3 of this Agreement;
(9) any amendment to Article VIII of this Agreement that
would have the effect of reducing the
indemnification provided thereby to Covered Persons
or to Shareholders or former Shareholders; and
(10) any amendment or alteration to, or any repeal of the
provisions of, this Article VI.
The voting requirements set forth in this Section 6.2(a)
shall be in addition to, and not in lieu of, any vote or
consent of the Shareholders otherwise required by applicable
law (including, without limitation, any separate vote by
Class that may be required by the 1940 Act or by other
applicable law), by the terms of any Class that is now or
hereafter authorized, by any agreement between the Trust and
any national securities exchange, or by this Agreement.
(b) For purposes of this Section 6.2, the term "Principal
Shareholder" shall mean any corporation, person, entity, or
group (within the meaning of Rule 13d-5 under the Securities
Exchange Act of 1934, as amended), which is the beneficial
owner, directly or indirectly, of ten percent (10%) or more
of the Outstanding Shares of the Trust and shall include any
affiliate or associate, as such terms are defined in clause
(2) below, of a Principal Shareholder. In calculating the
number of Shares beneficially owned by a Shareholder, in
addition to the Shares which a corporation, person, entity,
or group beneficially owns directly, any corporation, person,
entity, or group shall be deemed to be the beneficial owner
of any Shares (1) which it has the right to acquire pursuant
to any agreement or upon exercise of conversion rights or
warrants, or otherwise or (2) which are beneficially owned,
directly or indirectly (including Shares deemed owned through
application of clause (1) above), by any other corporation,
person, entity, or group with which it or its "affiliate" or
"associate," as those terms are defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended, has any
agreement, arrangement, or understanding for the purpose of
acquiring, holding, voting, or disposing of Shares of the
Trust, or which is its "affiliate" or "associate" as so
defined. In calculating the number of Outstanding Shares of
the Trust, Outstanding Shares of the Trust shall not include
Shares deemed owned through application of clause (1) above.
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ARTICLE VII
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES
Section 7.1 Distributions. The Trustees may from time to time declare
and pay dividends and make other distributions with respect to the Portfolio or
any Class thereof, which may be from income, capital gains or capital. The
amount of such dividends or distributions and the payment of them and whether
they are in cash or any other Trust Property shall be wholly in the discretion
of the Trustees. Dividends and other distributions may be paid pursuant to a
standing resolution adopted once or more often as the Trustees determine. All
dividends and other distributions on Common Shares shall be distributed pro
rata to the holders of Common Shares in proportion to the number of Common
Shares they held on the record date established for such payment, provided that
such dividends and other distributions on Common Shares shall appropriately
reflect expenses allocated to the Common Shares. The Trustees may adopt and
offer to Shareholders such dividend reinvestment plans, cash distribution
payment plans, or similar plans as the Trustees deem appropriate.
Section 7.2 Redemptions of Shares by the Trustees. The Trustees may,
at their option, call for the redemption of the Shares of any Person or may
refuse to transfer or issue Shares to any Person to the extent that the same is
necessary to comply with applicable law or advisable to further the purposes
for which the Trust is formed. To the extent permitted by law, the Trustees may
retain the proceeds of any redemption of Shares required by them for payment of
amounts due and owing by a Shareholder to the Trust or to the Portfolio.
Section 7.3 Repurchases by the Trust. The Trust may, at the discretion
of the Trustees, repurchase its Shares upon such terms and conditions as are
established by the Trustees, subject to any applicable provisions of the 1940
Act and other applicable federal or state securities laws.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 8.1 Limitation of Liability. A Trustee or officer, when acting
in such capacity, shall not be personally liable to any person for any act,
omission or obligation of the Trust or any Trustee or officer; provided,
however, that nothing contained herein or in the Delaware Act shall protect any
Trustee or officer against any liability to the Trust or to Shareholders 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 his office with the Trust.
Section 8.2 Indemnification of Covered Persons. Every Covered Person
shall be indemnified by the Trust to the fullest extent permitted by the
Delaware Act, the Bylaws and other applicable law.
Section 8.3 Indemnification of Shareholders. In case any Shareholder
or former Shareholder of the Trust shall be held to be personally liable solely
by reason of his being or having been a Shareholder of the Trust or the
Portfolio or any Class thereof and not because of his acts or omissions or for
some other reason, 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 general successor) shall be
entitled, out of the assets belonging to the Portfolio, to be held harmless
from and indemnified against all loss and expense arising from such liability
in accordance with the Bylaws and applicable law. The Trust, on behalf of the
Portfolio or any Class thereof, shall upon request by the Shareholder, assume
the defense of
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any such claim made against the Shareholder for any act or obligation of the
Portfolio or any Class thereof.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Trust Not a Partnership; Taxation. It is hereby expressly
declared that a trust and not a partnership is created hereby. No Trustee
hereunder shall have any power to bind personally either the Trust's officers
or any Shareholder. All persons extending credit to, contracting with or having
any claim against the Trust or the Trustees shall look only to the assets of
the Portfolio or of the Trust for payment under such credit, contract or claim;
and neither the Shareholders, the Trustees, nor the Trust's officers nor any of
the agents of the Trustees whether past, present or future, shall be personally
liable therefor.
It is intended that the Trust and the Portfolio, as applicable, be
classified for income tax purposes as an association taxable as a corporation,
and the Trustees shall do all things that they, in their sole discretion,
determine are necessary to achieve that objective, including (if they so
determine), electing such classifications on Internal Revenue Form 8832. The
Trustees, in their sole discretion and without the vote or consent of the
Shareholders, may amend this Agreement to ensure that this objective is
achieved.
Section 9.2 Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees of their powers and discretion hereunder
in good faith and with reasonable care under the circumstances then prevailing
shall be binding upon everyone interested. Subject to the provisions of Article
VIII and to Section 9.1, the Trustees shall not be liable for errors of
judgment or mistakes of fact or law. The Trustees may take advice of counsel or
other experts with respect to the meaning and operation of this Agreement, and
subject to the provisions of Article VIII and Section 9.1, shall be under no
liability for any act or omission in accordance with such advice or for failing
to follow such advice. The Trustees shall not be required to give any bond as
such, nor any surety if a bond is obtained.
Section 9.3 Termination of Trust or Portfolio or Class.
(a) Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be
terminated at any time by the Trustees by written notice to
the Shareholders, subject to the right of Shareholders, if
any, to vote pursuant to Section 6.1. The Portfolio or any
Class thereof may be terminated at any time by the Trustees
by written notice to the Shareholders of the Portfolio or
such Class, subject to the right of Shareholders, if any, to
vote pursuant to Section 6.1.
(b) On termination of the Trust or the Portfolio pursuant to
paragraph (a) above,
(1) the Trust or the Portfolio thereafter shall carry on
no business except for the purpose of winding up its
affairs,
(2) the Trustees shall (i) proceed to wind up the
affairs of the Trust or the Portfolio, and all
powers of the Trustees under this Agreement with
respect thereto shall continue until such affairs
have been wound up, including the powers to fulfill
or discharge the contracts of the Trust or the
Portfolio, (ii) collect its assets or the assets
belonging thereto, (iii) sell, convey, assign,
19
exchange, or otherwise dispose of all or any part of
those assets to one or more persons at public or
private sale for consideration that may consist in
whole or in part of cash, securities, or other
property of any kind, (iv) discharge or pay its
liabilities, and (v) do all other acts appropriate
to liquidate its business, and
(3) 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
ratably among the Shareholders of the Trust or the
Portfolio.
(c) On termination of any Class pursuant to paragraph (a) above,
(1) the Trust thereafter shall no longer issue Shares of
that Class,
(2) the Trustees shall do all other acts appropriate to
terminate that Class, and
(3) unless different provisions have been established by
the Trustees with respect to the Preferred Shares,
in which case such provisions shall govern the
treatment of the Preferred Shares, the Trustees
shall distribute ratably among the Shareholders of
that Class, in cash or in kind, an amount equal to
the proportionate interest of that Class in the net
assets of the Portfolio (after taking into account
fees, expenses, or charges allocable thereto), and
in connection with any such distribution in cash the
Trustees are authorized to sell, convey, assign,
exchange or otherwise dispose of such assets of the
Portfolio of which that Class is a part as they deem
necessary.
(d) On completion of distribution of the remaining assets
pursuant to paragraph (b)(3) above (or the proportionate
interest of the Class in the net assets of the Portfolio
pursuant to paragraph (c)(3) above), the Trust or the
Portfolio (or Class) shall terminate and the Trustees and the
Trust shall be discharged from all further liabilities and
duties hereunder with respect thereto and the rights and
interests of all parties therein shall be cancelled and
discharged. On termination of the Trust, following completion
of winding up of its business, the Trustees shall cause a
Certificate of Cancellation of the Trust's Certificate of
Trust to be filed in accordance with the Delaware Act, which
Certificate may be signed by any one Trustee.
Section 9.4 Sale of Assets; Merger and Consolidation. Subject to right
of Shareholders, if any, to vote pursuant to Section 6.1, the Trustees may
cause (i) the Trust or its Portfolio to the extent consistent with applicable
law to sell all or substantially all of its assets to, or be merged into or
consolidated with, another business trust (or series thereof) or Company (or
series thereof), (ii) the Shares of the Trust or the Portfolio or any Class
thereof to be converted into beneficial interests in another business trust (or
series thereof) created pursuant to this Section 9.4, (iii) the Shares of any
Class to be converted into another Class of the Portfolio, or (iv) the Shares
to be exchanged under or pursuant to any state or federal statute to the extent
permitted by law. In all respects not governed by statute or applicable law,
the Trustees shall have power to prescribe the procedure necessary or
appropriate to accomplish a
20
sale of assets, merger or consolidation including the power to create one or
more separate business trusts to which all or any part of the assets,
liabilities, profits or losses of the Trust may be transferred and to provide
for the conversion of Shares of the Trust or the Portfolio or any Class thereof
into beneficial interests in such separate business trust or trusts (or series
or class thereof).
Section 9.5 Filing of Copies, References, Headings. The original or a
copy of this Agreement or any amendment hereto or any supplemental agreement
shall be kept at the office of the Trust where it may be inspected by any
Shareholder. In this Agreement or in any such amendment or supplemental
agreement, references to this Agreement, and all expressions like "herein,"
"hereof," and "hereunder," shall be deemed to refer to this Agreement as
amended or affected by any such supplemental agreement. All expressions like
"his," "he," and "him," shall be deemed to include the feminine and neuter, as
well as masculine, genders. Headings are placed herein for convenience of
reference only and in case of any conflict, the text of this Agreement, rather
than the headings, shall control. This Agreement may be executed in any number
of counterparts each of which shall be deemed an original.
Section 9.6 Governing Law. The Trust and this Agreement, and the
rights, obligations and remedies of the Trustees and Shareholders hereunder,
are to be governed by and construed and administered according to the Delaware
Act and the other laws of the State of Delaware; provided, however, that there
shall not be applicable to the Trust, the Trustees, the Shareholders or this
Trust Agreement (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 indemnification, acts or powers of trustees or other
Persons, which are inconsistent with the limitations of liabilities or
authorities and powers of the Trustees or officers of the Trust set forth or
referenced in this Agreement.
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; provided, however, that the exercise of any
such power, privilege or action shall not otherwise violate applicable law.
Section 9.7 Amendments. Except as specifically provided in Section
6.1, the Trustees may, without any Shareholder vote, amend this Agreement by
making an amendment to this Agreement, an agreement supplemental hereto, or an
amended and restated trust instrument. Any such amendment, having been approved
by a Majority Trustee Vote, shall become effective, unless otherwise provided
by such Trustees, upon being executed by a duly authorized officer of the
Trust. A certification signed by a duly authorized officer of the Trust
21
setting forth an amendment to this Agreement and reciting that it was duly
adopted by the Shareholders or by the Trustees as aforesaid, or a copy of this
Agreement, as amended, executed by a majority of the Trustees, or a duly
authorized officer of the Trust, shall be conclusive evidence of such amendment
when lodged among the records of the Trust.
Section 9.8 Provisions in Conflict with Law. The provisions of this
Agreement are severable, and if the Trustees shall determine, with the advice
of counsel, that any of such provisions is in conflict with applicable law, the
conflicting provision shall be deemed never to have constituted a part of this
Agreement; provided, however, that such determination shall not affect any of
the remaining provisions of this Agreement or render invalid or improper any
action taken or omitted prior to such determination. If any provision of this
Agreement 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 provisions in any other
jurisdiction or any other provision of this Agreement in any jurisdiction.
Section 9.9 Shareholders' Right to Inspect Shareholder List. One or
more Persons who together and for at least six months have been Shareholders of
at least five percent (5%) of the Outstanding Shares of any Class may present
to any officer or resident agent of the Trust a written request for a list of
its Shareholders. Within twenty (20) days after such request is made, the Trust
shall prepare and have available on file at its principal office a list
verified under oath by one of its officers or its transfer agent or registrar
which sets forth the name and address of each Shareholder and the number of
Shares of the Portfolio and Class which the Shareholder holds. The rights
provided for herein shall not extend to any Person who is a beneficial owner
but not also a record owner of Shares of the Trust.
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IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this instrument this 15th day of May, 2002.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxx, Xx.
-----------------------
Xxxxxx X. Xxxx, Xx.
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
/s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxx-Xxxxx
----------------------
Xxxxx Xxxxxx-Xxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
-------------------
Xxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
