EXHIBIT 1
XXXXXX MASTER INTERMEDIATE INCOME TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts, this
10th day of March, 1988 by the Trustees hereunder, and by the holders of shares
of beneficial interest to be issued hereunder as hereinafter provided.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of a Massachusetts voluntary association with
transferable shares in accordance with the provisions hereinafter set forth.
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 pro rata benefit of the holders from
time to time of Shares in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Name
Section 1. This Trust shall be known as "Xxxxxx Master Intermediate
Income Trust", and the Trustees shall conduct the business of the Trust under
that name or any other name as they may from time to time determine.
Definitions
Section 2. Whenever used herein, unless otherwise required by the
context or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust
established by this Agreement and Declaration of Trust, as amended from
time to time;
(b) "Trustees" refers to the Trustees of the Trust named
herein or elected in accordance with Article IV;
(c) "Shares" means the equal proportionate transferable units
of interest into which the beneficial interest in the Trust shall be
divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of
1940 and the Rules and Regulations thereunder, all as amended from time
to time;
(f) The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person", "Principal Underwriter" and "Majority Shareholder
Vote" (the 67% or 50% requirement of the third sentence of Section
2(a)(42) of the 1940 Act, whichever may be applicable) shall have the
meanings given them in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust as amended or restated from time to time; and
(h) "Bylaws" shall mean the Bylaws of the Trust as amended
from time to time.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a managed investment
primarily in securities, debt instruments and other instruments and rights of a
financial character.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The beneficial interest in the Trust shall at all times be
divided into Shares, without par value, each of which shall represent an equal
proportionate interest in the Trust with each other Share, none having priority
or preference over another. The number of Shares authorized shall be unlimited.
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 Trust.
Ownership of Shares
Section 2. The ownership of Shares shall be recorded on the books of
the Trust or a transfer or similar agent. No certificates certifying the
ownership of Shares shall be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make
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such rules as they consider appropriate for the issuance of Share certificates,
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 held
from time to time by each Shareholder.
Investment in the Trust
Section 3. The Trustees shall accept investments in the Trust from such
persons and on such terms and for such consideration, which may consist of cash
or tangible or intangible property or a combination thereof, as they or the
Bylaws from time to time authorize.
No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust.
Status of Shares and Limitation of Personal Liability
Section 5. Shares shall be deemed to be personal property giving only
the rights provided in this instrument. Every Shareholder by virtue of having
become a Shareholder shall be held to have expressly assented and agreed to the
terms hereof and to have become a party hereto. The death of a shareholder
during the continuance of the Trust shall not operate to terminate the 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 the rights of said decedent under this Trust. Ownership of Shares shall
not entitle the Shareholder to any title in or to the whole or any part of the
Trust property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust shall have any power to bind personally any Shareholder, nor except
as specifically provided herein to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
ARTICLE IV
The Trustees
Election
Section 1. In each year beginning in 1988, at the annual meeting of
Shareholders or at any special meeting held in lieu thereof, or at any special
meeting held before 1988, the Shareholders shall fix the number of and elect a
Board of not less than three Trustees, each of whom shall serve until the next
annual meeting or special meeting in lieu thereof and until the election and
qualification of his or her successor, or until he or she sooner dies, resigns
or is removed. The initial Trustees, each of whom shall serve until the
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first meeting of Shareholders at which Trustees are elected and until his or her
successor is elected and qualified, or until he or she sooner dies, resigns or
is removed shall be Xxxxxx Xxxxxx, Xxxxxxx X. Xxxxxx and Xxxx X'Xxxxx and such
other persons as the Trustee or Trustees then in office shall, prior to any sale
of Shares pursuant to public offering, appoint.
Effect of Death, Resignation, etc. of a Trustee
Section 2. The death, declination, resignation, retirement, removal or
incapacity of the Trustees, or any one of them, shall not operate to annul the
Trust or to revoke any existing agency created pursuant to the terms of this
Declaration of Trust.
Powers
Section 3. 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. Without
limiting the foregoing, the Trustees may adopt Bylaws not inconsistent with this
Declaration of Trust providing for the conduct of the business of the Trust and
may amend and repeal them to the extent that such Bylaws do not reserve that
right to the Shareholders; they may fill vacancies in or add to their number,
and may elect and remove such officers and appoint and terminate such agents as
they consider appropriate; they may appoint from their own number, and
terminate, any one or more committees consisting of two or more Trustees,
including an executive committee which may, when the Trustees are not in
session, exercise some or all of the power and authority of the Trustees as the
Trustees may determine; they may employ one or more custodians of the assets of
the Trust and may authorize such custodians to employ subcustodians and to
deposit all or any part of such assets in a system or systems for the central
handling of securities, retain a transfer agent or a shareholder servicing
agent, or both, provide for the distribution of Shares by the Trust, through one
or more principal underwriters or otherwise, set record dates for the
determination of Shareholders with respect to various matters, and in general
delegate such authority as they consider desirable to any officer of the Trust,
to any committee of the Trustees and to any agent or employee of the Trust or to
any such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease the assets of the Trust except as otherwise
provided in Article IX, Section 5;
(c) 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 or powers of
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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 Trustees shall deem proper;
(d) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(e) To hold any security 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 in the name of a
custodian, subcustodian or other depositary or a nominee or nominees or
otherwise;
(f) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer,
any security 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 held in the Trust;
(g) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security to,
any such committee, depositary or trustee, and to delegate to them such
power and authority with relation to any security (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) 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;
(i) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) To borrow funds;
(k) 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) 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
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distributions and principal on its portfolio investments, and insurance
policies insuring the Shareholders, Trustees, officers, employees,
agents, investment advisers or managers, principal underwriters, or
independent contractors 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 as
Shareholder, Trustee, officer, employee, agent, investment adviser or
manager, principal underwriter, or independent contractor, including
any action taken or omitted that may be determined to constitute
negligence, whether or not the Trust would have the power to indemnify
such person against such liability; and
(m) To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out
pension, profit-sharing, share bonus, share purchase, savings, thrift
and other retirement, incentive and benefit plans, 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.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by trustees. Except as otherwise
provided herein or from time to time in the Bylaws, any action to be taken by
the Trustees may be taken by a majority of the Trustees present at a meeting of
Trustees (a quorum being present), within or without Massachusetts, including
any meeting held by means of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other at the same time and participation by such means shall constitute
presence in person at a meeting, or by written consents of a majority of the
Trustees then in office.
Payment of Expenses by Trust
Section 4. The Trustees are authorized to pay or to cause to be paid
out of the assets of the Trust, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust, or in connection
with the management thereof, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of the Trust's
officers, employees, investment adviser or manager, principal underwriter,
auditor, 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.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of the Trust shall at all times
be considered as vested in the Trustees.
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Advisory, Management and Distribution
Section 6. Subject to a favorable Majority Shareholder Vote, the
Trustees may, at any time and from time to time, contract for exclusive or
nonexclusive advisory and/or management services with any corporation, trust,
association or other organization (the "Manager"), every such contract to comply
with such requirements and restrictions as may be set forth in the Bylaws; and
any such contract may contain such other terms interpretive of or in addition to
said requirements and restrictions as the Trustees may determine, including,
without limitation, authority to determine from time to time what investments
shall be purchased, held, sold or exchanged and what portion, if any, of the
assets of the Trust shall be held uninvested and to make changes in the Trust's
investments. The Trustees may also, at any time and from time to time, contract
with the Manager or any other corporation, trust, association or other
organization, appointing it exclusive or nonexclusive distributor or principal
underwriter for the Shares, every such contract to comply with such requirements
and restrictions as may be set forth in the Bylaws; and any such contract may
contain such other terms interpretive of or in addition to said requirements and
restrictions as the Trustees may determine.
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 corporation, trust, association, or other
organization, or of or for any parent or affiliate of any
organization, with which an advisory or management contract,
or principal underwriter's or distributor's contract, or
transfer, Shareholder servicing or other agency contract may
have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a
Shareholder or has an interest in the Trust, or that
(ii) any corporation, trust, association or other organization with
which an advisory or management contract or principal
underwriter's or distributor's contract, or transfer,
Shareholder servicing or other agency contract may have been
or may hereafter be made also has an advisory or management
contract, or transfer, Shareholder servicing or other agency
contract with one or more other corporations, trusts,
associations, or other organizations, 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.
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ARTICLE V
Shareholders' Voting Powers and Meetings
Voting Powers
Section 1. The Shareholders shall have power to vote only (i) for the
election of Trustees as provided in Article IV, Section 1, (ii) with respect to
any Manager as provided in Article IV, Section 6, (iii) with respect to any
termination of this Trust to the extent and as provided in Article IX, Section
4, (iv) with respect to any merger, consolidation or sale of assets of the Trust
to the extent and as provided in Article IV, Section 5, (v) with respect to any
conversion of the Trust as provided in Article IX, Section, 6, (vi) with respect
to any amendment of this Declaration of Trust to the extent and as provided in
Article IX, Section 9, (vii) to the same extent as the stockholders of a
Massachusetts business corporation as to whether or not court action, proceeding
or claim should or should not be brought or maintained derivatively or as a
class action on behalf of the Trust or the Shareholders, and (viii) with respect
to such additional matters relating to the Trust as may be required by this
Declaration of Trust, the Bylaws 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. 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. There shall be no cumulative
voting in the election of Trustees. Shares may be voted in person or by proxy. A
proxy with respect to Shares held in the name of two or more persons shall be
valid if executed by any one of them unless at or prior to exercise of the proxy
the Trust receives a specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a Shareholder shall
be deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger. Until Shares are issued, the
Trustees may exercise all rights of Shareholders and may take any action
required by law, this Declaration of Trust or Bylaws to be taken by
Shareholders.
Voting Power and Meetings
Section 2. There shall be an annual meeting of the Shareholders on the
date fixed in the Bylaws at the office of the Trust in Boston, Massachusetts, or
at such other place as may be designated in the call thereof, which call shall
be made by the Trustees. In the event that such meeting is not held in any year
on the date fixed in the Bylaws, whether the omission be by oversight or
otherwise, a subsequent special meeting may be called by the Trustees and held
in lieu of the annual meeting with the same effect as though held on such date.
Special meetings may also be called by the Trustees from time to time for the
purpose of taking action upon any matter requiring the vote or authority of the
Shareholders as herein provided or upon any other matter deemed by the Trustees
to be necessary or desirable. Written notice of any meeting of Shareholders
shall be given or caused to be given by the Trustees by mailing such notice at
least seven days before such meeting, postage prepaid, stating the time, place
and purpose of the meeting, to each Shareholder entitled to vote at such meeting
at the
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Shareholder's address as it appears on the records of the Trust. 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 25% of the
then outstanding shares entitled to vote at such meeting requesting a meeting to
be called for a purpose requiring action by the Shareholders as provided herein
or in the Bylaws, then Shareholders holding at least 25% of the then outstanding
shares entitled to vote at such meeting 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. Notice of a meeting need not be
given to any Shareholder if a written waiver of notice, executed by him or her
before or after the meeting, is filed with the records of the meeting, or to any
Shareholder who attends the meeting without protesting prior thereto or at its
commencement the lack of notice to him or her.
Quorum and Required Vote
Section 3. A majority of Shares entitled to vote shall be a quorum for
the transaction of business at a Shareholders' meeting but any lesser number
shall be sufficient for adjournments. Any adjourned session or sessions may be
held, within a reasonable time after the date set for the original meeting,
without the necessity of further notice. Except when a larger vote is required
by any provision of this Declaration of Trust or the Bylaws, a majority of the
Shares voted shall decide any questions and a plurality shall elect a Trustee.
Action by Written Consent
Section 4. 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 any express provision of this
Declaration of Trust or the Bylaws) 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.
Additional Provisions
Section 5. The Bylaws may include further provisions of Shareholders'
votes and meetings and related matters.
ARTICLE VI
Distributions
The Trustees may each year, or more frequently if they so determine,
distribute to the Shareholders such amounts as the Trustees may determine. Any
amounts shall be distributed pro rata in proportion to the number of Shares held
by each Shareholder. Such distributions shall be made in cash or Shares or a
combination thereof as determined by the Trustees. Any
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such distribution paid in Shares will be paid at the net asset value thereof as
determined in accordance with the Bylaws.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Compensation
Section 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust; they may fix the amount of their compensation.
Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust.
Limitation of Liability
Section 2. The Trustees shall not be responsible or liable in any event
for any neglect or wrongdoing of any officer, agent, employee, manager or
principal underwriter of the Trust, nor shall any Trustee be responsible for the
act or omission of any other Trustee, but nothing herein contained shall protect
any Trustee against any liability to which he or she would otherwise be subject
by reason of wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her office.
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 or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been executed or done only in or with respect to
their or his or her capacity as Trustees or Trustee, and such Trustees or
Trustee shall not be personally liable thereon.
ARTICLE VIII
Indemnification
Trustees, Officers, etc.
Section 1. The Trust shall indemnify each of its Trustees and officers
including persons who serve at the Trust's request as directors, officers or
Trustees 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 and expenses, including but not limited to
amounts paid in satisfaction of judgments, in compromise or as fines and
penalties, and counsel fees reasonably incurred by any Covered Person in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or administrative or
legislative body, in which such Covered Person may be or may have been involved
as a party or otherwise or with which such Covered Person may be or may have
been threatened, while in office or thereafter, by reason of being or having
been such a
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Covered Person except with respect to any matter as to which such Covered Person
shall have been finally adjudicated in any such action, suit or other proceeding
(a) not to have acted in good faith in the reasonable belief that such Covered
Person's action was in the best interests of the Trust or (b) to be liable to
the Trust or its Shareholders by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office. Expenses, including counsel fees so incurred by any
such Covered Person (but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), shall be paid from time to time by the
Trust in advance of the final disposition of any such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Covered Person to repay
amounts so paid to the Trust if it is ultimately determined that indemnification
of such expenses is not authorized under this Article, provided, however, that
either (a) such Covered Person shall have provided appropriate security for such
undertaking, (b) the Trust shall be insured against losses arising from any such
advance payments or (c) either a majority of the disinterested Trustees acting
on the matter (provided that a majority of the disinterested Trustees then in
office act on the matter), or independent legal counsel in a written opinion,
shall have determined, based upon a review of readily available facts (as
opposed to a full trial type inquiry) that there is reason to believe that such
Covered Person will be found entitled to indemnification under this Article.
Compromise Payment
Section 2. As to any matter disposed of (whether by a compromise
payment, pursuant to a consent decree or otherwise) without an adjudication by a
court, or by any other body before which the proceeding was brought, that such
Covered Person either (a) did not act in good faith in the reasonable belief
that his or her action was in the best interests of the Trust or (b) is 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
his or her office, indemnification shall be provided if (a) approved as in the
best interests of the Trust, after notice that it involves such indemnification,
by at least a majority of the disinterested Trustees acting on the matter
(provided that a majority of the disinterested Trustees then in office act on
the matter) upon a determination, based upon a review of readily available facts
(as opposed to a full trial type inquiry) that such Covered Person acted in good
faith in the reasonable belief that his or her action was in the best interests
of the Trust and is not liable to the Trust or its Shareholders by reason of
wilful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office, or (b) there has been
obtained an opinion in writing of independent legal counsel, based upon a review
of readily available facts (as opposed to a full trial type inquiry) to the
effect that such Covered Person appears to have acted in good faith in the
reasonable belief that his or her action was in the best interests of the Trust
and that such indemnification would not protect such Covered Person against any
liability to the Trust to which he or she would otherwise be subject by reason
of wilful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office. Any approval pursuant to
this Section shall not prevent the recovery from any Covered Person of any
amount paid to such Covered Person in
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accordance with this Section as indemnification if such Covered Person is
subsequently adjudicated by a court of competent jurisdiction not to have acted
in good faith in the reasonable belief that such Covered Person's action was in
the best interests of the Trust or to have been liable to the Trust or its
Shareholders by reason of wilful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Covered
Person's office.
Indemnification Not Exclusive
Section 3. The right of indemnification hereby provided shall not be
exclusive of or affect any other rights to which such Covered Person may be
entitled. As used in this Article VIII, the term "Covered Person" shall include
such person's heirs, executors and administrators and a "disinterested Trustee"
is a Trustee who is not an "interested person" of the Trust as defined in
Section 2(a)(19) of the 1940 Act (or who has been exempted from being an
"interested person" by any rule, regulation or order of the Commission) and
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. Nothing contained in this Article shall affect any rights to
indemnification to which personnel of the Trust, other than Trustees or
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.
Shareholders
Section 4. In case any Shareholder or former Shareholder shall be held
to be personally liable solely by reason of his or her being or having been a
Shareholder and not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her 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 to be
held harmless from and indemnified against all loss and expense arising from
such liability.
ARTICLE IX
Miscellaneous
Trustees, Shareholders, etc. Not Personally Liable; Notice
Section 1. All persons extending credit to, contracting with or having
any claim against the Trust shall look only to the assets of the Trust for
payment under such credit, contract or claim, and neither the Shareholders nor
the Trustees, nor any of the Trust's officers, employees or agents, whether
past, present or future, shall be personally liable therefor. Nothing in this
Declaration of Trust shall protect any Trustee against any liability to which
such Trustee would otherwise be subject by reason of wilful misfeasance, bad
faith,
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gross negligence or reckless disregard of the duties involved in the conduct of
the office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officer or officers shall give notice that
this Declaration of Trust is on file with the Secretary of The Commonwealth of
Massachusetts and shall recite that the same was executed or made by or on
behalf of the Trust or by them as Trustee or Trustees or as officer or officers
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, and may contain such further recital as he or
she or they may deem appropriate, but the omission thereof shall not operate to
bind any Trustee or Trustees or officer or officers or Shareholder or
Shareholders individually.
Trustee's Good Faith Action, Expert Advice, No Bond or Surety
Section 2. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be liable
for his or her own wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee, and
for nothing else, and 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 Declaration of Trust, and 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 required.
Liability of Third Persons Dealing with Trustee
Section 3. 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.
Duration and Termination of Trust
Section 4. Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be terminated at any time by
vote of Shareholders holding at least 66-2/3% of the Shares entitled to vote
(provided, however, if such termination is recommended by two-thirds of the
Trustees the vote of a majority of shares entitled to vote shall be sufficient
authorization) or by the Trustees by written notice to the Shareholders. Upon
termination of the Trust, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated, of the
Trust or 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 or shares or other securities, or any
combination thereof, and distribute the proceeds to the Shareholders,
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ratably according to the number of Shares held by the several Shareholders on
the date of termination.
Merger, Consolidation and Sale of Assets
Section 5. The Trust may merge or consolidate with any other
corporation, association, trust or other organization or may sell, lease or
exchange all or substantially all of its assets, including its good will, upon
such terms and conditions and for such consideration when and as authorized at
any meeting of Shareholders called for the purpose, or may liquidate or dissolve
when and as authorized, by the affirmative vote of the holders of not less than
two-thirds of the Shares entitled to vote, provided, however, that if such
merger, consolidation, sale, lease or exchange is recommended by two-thirds of
the Trustees, the vote of the holders of a majority of Shares entitled to vote
shall be sufficient authorization. Nothing contained herein shall be construed
as requiring approval of Shareholders for any sale of assets in the ordinary
course of business of the Trust.
Conversion
Section 6. The Fund may be converted at any time from a "closed-end
company" to an "open-end company" as those terms are defined in Section 5(a)(2)
and 5(a)(1), respectively, of the 1940 Act as in effect on October 1, 1987, upon
the approval of such a proposal, together with the necessary amendments to the
Declaration of Trust to permit such a conversion, by the holders of two-thirds
of the Fund's outstanding Shares entitled to vote, except that if such proposal
is recommended by two-thirds of the total number of Trustees then in office or
such proposal is voted upon after the beginning of the fiscal year commencing in
1993 such proposal may be adopted by a vote of a majority of the Fund's
outstanding Shares entitled to vote. In addition, commencing with the beginning
of the fiscal year commencing in 1993, and in each fiscal year thereafter, if
Shares of the Fund have traded on the principal securities exchange where listed
at an average discount of more than ten percent (10%), determined on the basis
of the discount as of the end of the last trading day in each week during the
period of twelve (12) calendar weeks preceding the beginning of each such fiscal
year, the Trustees will submit to the shareholders at the next succeeding annual
meeting, or within six months thereafter if the Fund does not then hold annual
meetings, a proposal to convert the Fund from a "closed-end company" to an
"open-end company" as those terms are defined above, together with the necessary
amendments to this Declaration of Trust to permit such a conversion. Upon the
adoption of such proposal and related amendments by the Fund's outstanding
shares entitled to vote, the Fund shall upon complying with any requirements of
the 1940 Act and state law, become an "open-end" investment company. Such
affirmative vote or consent shall be in addition to the vote or consent of the
holders of the Shares otherwise required by law, or any agreement between the
Trust and any national securities exchange.
-14-
Filing of Copies, References, Headings
Section 7. The original or a copy of this instrument and of each
amendment hereto shall be kept at the office of the Trust where it may be
inspected by any Shareholder. A copy of this instrument and of each amendment
hereto shall be filed by the Trust with the Secretary of State of The
Commonwealth of Massachusetts and with the Boston City Clerk, as well as any
other governmental office where such filing may from time to time be required.
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 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 such as
"herein", "hereof" and "hereunder" shall be deemed to refer to this instrument
as amended or affected by any such amendments. 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.
Applicable Law
Section 8. This Declaration of Trust is made in The Commonwealth of
Massachusetts, and it is created under and is to be governed by and construed
and administered according to the laws of said Commonwealth. The Trust shall be
of the type commonly called a Massachusetts business trust, and without limiting
the provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
Amendments
Section 9. This Declaration of Trust may be amended at any time by an
instrument in writing signed by a majority of the then Trustees when authorized
to do so by vote of Shareholders holding a majority of the Shares entitled to
vote, except that an amendment amending or affecting the provisions of Section 1
of Article IV, Sections 5 and 6 of this Article IX or of this sentence shall
require the vote of Shareholders holding two-thirds of the Shares entitled to
vote. Amendments having the purpose of changing the name of the Trust or of
supplying any omission, curing any ambiguity or curing, correcting or
supplementing any defective or inconsistent provision contained herein shall not
require authorization by Shareholder vote.
-15-
IN WITNESS WHEREOF, each of the undersigned has hereunto set his or her
hand in the City of Boston, Massachusetts for himself or herself and his or her
assigns, as of the day and year first above written.
/s/ Xxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx
/s/ Xxxx X'Xxxxx
-------------------------------
Xxxx X'Xxxxx
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Boston, March 10, 1988
Then personally appeared the above named Xxxxxx Xxxxxx, Xxxx X'Xxxxx
and Xxxxxxx X. Xxxxxx and acknowledged the foregoing instrument to be their free
act and deed, before me,
/s/ Xxxx X. XxXxxxxx
-------------------------------
Notary Public
My Commission Expires: 11/10/89
-16-
XXXXXX MASTER INTERMEDIATE INCOME TRUST
FIRST AMENDMENT TO AGREEMENT AND DECLARATION OF TRUST
April 15, 1988
Pursuant to the provisions of Article IX, Section 9 and Article V,
Section 1 of the Agreement and Declaration of Trust (the "Declaration of Trust")
of Xxxxxx Master Intermediate Income Trust (the "Trust") made on March 10, 1988,
the undersigned, constituting at least a majority of the Trustees of the Trust,
there being no shares of beneficial interest of the Trust outstanding, hereby
amend the Declaration of Trust as follows:
1. The first sentence of Article IV, Section 1 is hereby amended by
deleting the year "1988" each place it appears therein, and by
inserting in place thereof the year "1989," so that such sentence shall
read in its entirety as follows:
"In each year beginning 1989, at the annual meeting of Shareholders or
at any special meeting held in lieu thereof, or at any special meeting
held before 1989, the Shareholders shall fix the number of and elect a
Board of not less than three Trustees, each of whom shall serve until
the next annual meeting or special meeting in lieu thereof and until
the election and qualification of his or her successor, or until he or
she sooner dies, resigns or is removed."
2. The first sentence of Article V, Section 2 is hereby amended by
inserting after the word "Shareholders" the words "in each year
beginning in 1989," so that such sentence shall read in its entirety as
follows:
"There shall be an annual meeting of the Shareholders in each year
beginning in 1989 on the date fixed in the Bylaws at the office of the
Trust in Boston, Massachusetts, or at such other place as may be
designated in the call thereof, which call shall be made by the
Trustees."
3. The second sentence of Article IX, Section 2 is hereby amended by
deleting the words "and shall not be liable for errors of judgment or
mistakes of fact or law," so that such sentence shall read in its
entirety as follows:
"A Trustee shall be liable for his or her own willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in
the conduct of the office of Trustee, and for nothing else."
4. The first sentence of Article IX, Section 9 is hereby amended by
including therein a reference to Article IV, Section 4 of the
Declaration of Trust, so that such sentence shall read in its entirety
as follows:
"This Declaration of Trust may be amended at any time by an instrument
in writing signed by a majority of the then Trustees when authorized to
do so by vote of Shareholders holding a majority of the shares entitled
to vote, except that an amendment amending or affecting the provisions
of Section 1 of Article IV, Sections 4, 5 and y of this Article IX or
of this sentence shall require the vote of Shareholders holding
two-thirds of the shares entitled to vote."
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the date first above written.
Signature Title Date
--------- ----- ----
/s/ Xxxxxx Xxxxxx Trustee April 15, 1988
------------------------------- --
Xxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx Trustee April 15, 1988
------------------------------- --
Xxxxxxx X. Xxxxxx
/s/ Xxxx X'Xxxxx Trustee April 15, 1988
------------------------------- --
Xxxx X'Xxxxx
/s/ Xxxx X. Xxxxx Trustee April 15, 1988
------------------------------- --
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxx Trustee April 15, 1988
------------------------------- --
Xxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxxxx Trustee April 15, 1988
------------------------------- --
Xxxxxx X. Xxxxxxxxx
-2-
/s/ Xxxxxx X. Xxxxxxx Trustee April 15, 1988
------------------------------- --
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Pounds Trustee April 15, 1988
------------------------------- --
Xxxxxxx X. Pounds
/s/ Xxxxxx X. Xxxxxxx, Xx. Trustee April 15, 1988
------------------------------- --
Xxxxxx X. Xxxxxxx, Xx.
/s/ Xxx Xxxxxxx Trustee April 15, 1988
------------------------------- --
Xxx Xxxxxxx
/s/ D. Xxxx Xxxxxx, Xx. Trustee April 15, 1988
------------------------------- --
D. Xxxx Xxxxxx, Xx.
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Boston, April 15, 1988
--
Then personally appeared the above named Xxxxxx Xxxxxx, Xxxxxxx X.
Xxxxxx, Xxxx X'Xxxxx, Xxxx X. Xxxxx, Xxxx X. Xxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxx
X. Xxxxxxx, Xxxxxxx X. Pounds, Xxxxxx X. Xxxxxxx, Xx., Xxx Xxxxxxx and D. Xxxx
Xxxxxx, Xx. and acknowledged the foregoing instrument to be their free act and
deed, before me.
/s/ Xxxxxxx Xxxxxx
-----------------------------
Notary Public
My Commission Expires: 4/4/94
