EXHIBIT 99.1
TRUST FOR CREDIT UNIONS
(formerly Xxxxxx Fund)
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts the 24th
day of September, 1987, as amended and restated through December 1, 1987 by the
Trustees hereunder, and by the holders of Units of beneficial interest to be
issued hereunder as hereinafter provided.
WITNESSETH
WHEREAS this Trust has been formed to carry on the business of an
investment company;
WHEREAS, the Trust is authorized to issue its Units of beneficial interest
in separate Series, the assets belonging to each separate Series to be held in a
separate Sub-Trust applicable to such Series, all as hereinafter provided; and
WHEREAS the Trustees have agreed to manage all property coming into their
hands as trustees of a Massachusetts business trust in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets which they may from time to time acquire in any
manner as Trustees hereunder IN TRUST to manage and dispose of the same upon the
following terms and conditions for the benefit of the holders from time to time
of Units of beneficial interest in this Trust or Sub-Trusts (as hereinafter
defined) as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1 NAME. This Trust shall be known as "Trust for Credit
Unions" 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.
Section 1.2 DEFINITIONS. 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, inclusive
of each and every Sub-Trust established hereunder;
(b) "Trustees" refers to the Trustees of the Trust and of each Sub-Trust
hereunder named herein or elected in accordance with Article III;
(c) "Units" refer to the transferable units of interest into which the
beneficial interest in the Trust or any Series of the Trust (as the context may
require) shall be divided from time to time; and the word "Unit" shall be
synonymous with the word "share" in any context in which such latter word has a
generally understood meaning (as, for example, in the phrase "share dividend");
(d) "Series" refers to Series of Units established and designated under or
in accordance with the provisions of Article IV;
(e) "Sub-Trust" refers to the separate Sub-Trust of the assets belonging to
its applicable Series (subject to the liabilities of the applicable Series);
(f) "Unitholder" means a record owner of Units;
(g) The "1940" Act" refers to the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time;
(h) The terms "Commission"and "Principal Underwriter" shall have the
meanings given them in the 1940 Act;
(i) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust as amended or restated from time to time; and
(j) "By-Laws" shall mean the By-Laws of the Trust as amended from time to
time.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company and to
offer Unitholders of the Trust and each Sub-Trust one or more investment
programs primarily in securities and debt instruments.
ARTICLE III
THE TRUSTEES
Section 3.1 NUMBER, DESIGNATION, ELECTION, TERM, ETC.
(a) INITIAL TRUSTEES. By his execution of this Declaration of Trust X.X.
Xxxxxxx, Xx. declares that he is a Trustee of the Trust and of each Sub-Trust
hereunder.
(b) NUMBER. The Trustees serving as such, whether named above or hereafter
becoming a Trustee, may increase or decrease (to a number not less than three)
the number of Trustees to a number other than the number theretofore determined.
No decrease in the number of Trustees shall have the effect of removing any
Trustee from office prior to the expiration of his term, but the number of
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Trustees may be decreased in conjunction with the removal of a Trustee pursuant
to subsection (e) of this Section 3.1.
(c) TERM. Each Trustee, whether named above or hereafter becoming a
Trustee, shall serve as a Trustee of the Trust and of each Sub-Trust hereunder
during the lifetime of this Trust and until its termination as hereinafter
provided or until the next meeting of Unitholders if any called for the purpose
of considering the election or re-election of such Trustee or of a successor to
such Trustee, and until the election and qualification of his successor if any
elected at such meeting, or until such Trustee sooner dies, resigns, retires or
is removed.
(d) RESIGNATION AND RETIREMENT. Any Trustee may resign his trust or retire
as a Trustee, by written instrument signed by him and delivered to the other
Trustees or to any officer of the Trust, and such resignation or retirement
shall take effect upon such delivery or upon such later date as is specified in
such instrument and shall be effective as to the Trust and each Sub-Trust
hereunder.
(e) REMOVAL. Any Trustee may be removed with or without cause at any time:
(i) by written instrument, signed by at least two-thirds of the number of
Trustees in office immediately prior to such removal, specifying the date upon
which such removal shall become effective; or (ii) by vote of the Unitholders
holding not less than two-third of the Units then outstanding, cast in person or
by proxy at any meeting called for the purpose; or (iii) the Trustees shall
promptly call a meeting of Unitholders for the purpose of voting upon the
question of removal of any such Trustee or Trustees when requested in writing to
do so by the holders of record of not less than 10 percent of the outstanding
Units.
(f) VACANCIES. Except as provided in the 1940 Act (including particularly
Section 16(a) thereof), any vacancy or anticipated vacancy resulting from any
reason, including without limitation the death, resignation, retirement, removal
or incapacity of any of the Trustees, or resulting from an increase in the
number of Trustees by the other Trustees may (but so long as there are at least
three remaining Trustees, need not unless required by the 0000 Xxx) be filled
either by a majority of the remaining Trustees through the appointment in
writing of such other person as such remaining Trustees in their discretion
shall determine or by the election by the Unitholders, at a meeting called for
the purpose, of a person to fill such vacancy, and such appointment or election
shall be effective upon the written acceptance of the person named therein to
serve as a Trustee and agreement by such person to be bound by the provisions of
this Declaration of Trust, except that any such appointment or election in
anticipation of a vacancy to occur by reason of retirement, resignation, or
increase in number of Trustees to be effective at a later date shall become
effective only at or after the effective date of said retirement, resignation,
or increase in number of Trustees. As soon as any Trustee so appointed or
elected shall have accepted such appointment or election and shall have agreed
in writing to be
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bound by this Declaration of Trust and the appointment or election is effective,
the Trust estate shall vest in the new Trustee, together with the continuing
Trustees, without any further act or conveyance.
(g) MANDATORY ELECTION BY UNITHOLDERS. Notwithstanding the foregoing
provisions of this Section 3.1, the Trustees shall call a meeting of the
Unitholders for the election of one or more Trustees at such time or times as
may be required in order that the provisions of the 1940 Act (including Section
16(a) thereof) may be complied with, and the authority hereinabove provided for
the Trustees to appoint any successor Trustee or Trustees shall be restricted if
such appointment would result in failure of the Trust to comply with any
provision of the 1940 Act.
(h) EFFECT OF DEATH, RESIGNATION, ETC. The death, resignation, retirement,
removal, or incapacity of the Trustees, or any one of them, shall not operate to
annul or terminate the Trust of any Sub-Trust hereunder or to revoke or
terminate any existing agency or contract created or entered into pursuant to
the terms of this Declaration of Trust.
(i) NO ACCOUNTING. Except to the extent required by the 1940 Act or under
circumstances which would justify his removal for cause, no person ceasing to be
a Trustee as a result of his death, resignation, retirement, removal or
incapacity (nor the estate of any such person) shall be required to make an
accounting to the Unitholders or remaining Trustees upon such cessation.
Section 3.2 POWERS OF TRUSTEES. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the
Trustees, and shall have all powers necessary or convenient to carry out that
responsibility and the purpose of the Trust. Without limiting the foregoing,
the Trustees may adopt By-Laws not inconsistent with this Declaration of Trust
providing for the conduct of the business and affairs of the Trust and may amend
and repeal them to the extent that such By-Laws do not reserve that right to the
Unitholders; they may from time to time in accordance with the provisions of
Section 4.1 hereof establish separate Series, each such Series to operate as a
separate and distinct investment medium and with separately defined investment
objectives and policies and distinct investment purposes, and the assets
belonging to each such Series to be held (subject to the liabilities belonging
to such Series) in a separate and distinct Sub-Trust; they may as they consider
appropriate elect and remove officers and appoint and terminate agents and
consultants and hire and terminate employees, any one or more of the foregoing
of whom may be a Trustee, and may provide for the compensation of all of the
foregoing; they may appoint from their own number, and terminate, any one or
more committees consisting of two or more Trustees, including without implied
limitation an executive committee, which may, when the Trustees are not in
session and subject to the 1940 Act, exercise some or all of the power and
authority of the Trustees as the Trustees may determine; in accordance with
Section 3.3 they may employ one or more Advisers,
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Administrators, Depositories and Custodians and may authorize any Depository or
Custodian to employ subcustodians or agents and to deposit all or any part of
such assets in a system or systems for the central handling of securities and
debt instruments or the recording of ownership of securities in book entry form,
retain transfer, dividend, accounting or Unitholder servicing agents or any of
the foregoing, provide for the distribution of Units by the Trust through one or
more distributors, principal underwriters or otherwise, set record dates or
times for the determination of Unitholders or various of them with respect to
various matters; they may compensate or provide for the compensation of the
Trustees, officers, advisers, administrators, custodians, other agents,
consultants and employees of the Trust or the Trustees on such terms as they
deem appropriate; and in general they may delegate to any officer of the Trust,
to any committee of the Trustees and to any employee, adviser, administrator,
distributor, depository, custodian, transfer and dividend disbursing agent, or
any other agent or consultant of the Trust such authority, powers, functions and
duties as they consider desirable or appropriate for the conduct of the business
and affairs of the Trust, including without implied limitation of the power and
authority to act in the name of the Trust and of the Trustees, and to sign
documents and to act as attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent with the
1940 Act or other applicable law, the Trustees shall have power and authority
for and on behalf of the Trust and each separate Sub-Trust established
hereunder:
(a) INVESTMENTS. To invest and reinvest cash and other property, and to
hold cash or other property uninvested without in any event being bound or
limited by any present or future law or custom in regard to investments by
trustees;
(b) DISPOSITION OF ASSETS. To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the assets of the Trust;
(c) OWNERSHIP POWERS. To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities, debt instruments or
property; and to execute and deliver proxies or powers of attorney to such
person or person as the Trustees shall deem proper, granting to such person or
persons such powers and discretion with relation to securities, debt instruments
or property as the Trustees shall deem proper;
(d) SUBSCRIPTION. To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities or debt
instruments;
(e) FORM OF HOLDING. To hold in security, debt instrument or property in a
form not indicating any trust, whether in bearer, unregistered or other
negotiable form, or in the name of the Trustees or of the Trust or of any Sub-
Trust in the name of a
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custodian, subcustodian or other depositary or a nominee or nominees or
otherwise;
(f) REORGANIZATION, ETC. To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security or debt instrument of which is or was held in the trust; to consent to
any contract, lease, mortgage, purchase or sale of property by such corporation
or issuer, and to pay calls or subscriptions with respect to any security or
debt instrument held in the Trust;
(g) VOTING TRUSTS, ETC. To join with other holders of any securities or
debt instruments in acting through a committee, depositary, voting trustee or
otherwise, and in that connection to deposit any security or debt instrument
with, or transfer any security or debt instrument to, any such committee,
depositary or trustee, and to delegatee to them such power and authority with
relation to any security or debt instrument (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and to pay,
such portion of the expenses and compensation of such committee, depository or
trustee as the Trustees shall deem proper;
(h) COMPROMISE. To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any Sub-Trust or any matter in controversy,
including but not limited to claims for taxes;
(i) PARTNERSHIPS, ETC. To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) BORROWING AND SECURITY. To borrow funds and to mortgage and pledge the
assets of the Trust or any part thereof to secure obligations arising in
connection with such borrowing;
(k) GUARANTEES, ETC. To endorse or guarantee the payment of any notes or
other obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust property or any part thereof to secure any of or all such obligations;
(l) INSURANCE. To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Unitholders, Trustees,
officers, employees, agents, consultants, investment advisers, managers,
administrators, distributors, principal underwriters, or independent
contractors, or any thereof (or any person connected therewith), of the Trust
individually against all claims and liabilities of every nature arising by
reason of holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such person in
any such capacity, including any action taken or omitted that may be
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determined to constitute negligence, whether or not the Trust would have the
power to indemnify such person against such liability; and
(m) PENSIONS, ETC. to pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trust and provisions, including the
purchase 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.
(n) DISTRIBUTION PLANS. To adopt on behalf of the Trust a Plan of
Distribution and related agreements thereto pursuant to the terms of Rule 12b-1
of the 1940 Act and to make payments from Trust assets pursuant to said Rule
12b-1 Plan.
Except as otherwise provided by the 1940 Act or other applicable law, this
Declaration of Trust or the By-Laws, any action to be taken by the Trustees may
be taken by a majority of the Trustees present at a meeting of Trustees (a
quorum, consisting of at least a majority of the Trustees then in office, being
present), within or without Massachusetts, including any meeting held by means
of a conference telephone or other communications equipment by means of which
all persons participating in the meeting can hear each other at the same time
and participation by such means shall constitute presence in person at a
meeting, or by written consents of a majority of the Trustees then in office.
Section 3.3 CERTAIN CONTRACTS. Subject to compliance with the
provisions of the 1940 Act, but notwithstanding any limitations of present and
future law or custom in regard to delegation of powers by trustees generally,
the Trustees may, at any time and from time to time and without limiting the
generality of their powers and authority otherwise set forth herein, enter into
one or more contracts with any one or more corporations, trusts, associations,
partnerships, limited partnerships, other type of organizations, or individuals,
("Contracting Party") to provide for the performance and assumption of some or
all of the following services, duties and responsibilities to, for or of the
Trust, any one or more Sub-Trusts and/or the Trustees, and to provide for the
performance and assumption of such other services, duties and responsibilities
in addition to those set forth below as the Trustees may determine appropriate:
(a) ADVISORY. Subject to the general supervision of the Trustees and in
conformity with the stated policy of the Trustees with respect to the
investments of the Trust or of the assets belonging to any Series of Units of
the Trust (as that phrase is defined in subsection (a) of Section 4.2), to
manage such investments and assets, make investment decisions with respect
thereto, and to place purchase and sale orders for portfolio transactions
relating to such investments and assets;
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(b) ADMINISTRATION. Subject to the general supervision of the Trustees and
in conformity with any policies of the Trustees with respect to the operations
of the Trust and each Sub-Trust, to supervise all or any part of the operations
of the Trust and each Sub-Trust, and to provide all or any part of the
administrative and clerical personnel, office space and office equipment and
services appropriate for the efficient administration and operations of the
Trust and each Sub-Trust;
(c) DISTRIBUTION. To distribute the Units of the Trust and each Sub-Trust,
to be Principal Underwriter of such Units,and/or to act as agent of the Trust
and each Sub-Trust in the sale of Units and the acceptance or rejection of
orders for the purchase of Units;
(d) CUSTODIAN AND DEPOSITORY. To act as depository for and to maintain
custody of the property of the Trust and each Sub-Trust and accounting records
in connection therewith;
(e) TRANSFER AND DIVIDEND DISBURSING AGENCY. To maintain records of the
ownership of outstanding Units, the issuance and redemption and the transfer
thereof, and to disburse any dividends declared by the Trustees and in
accordance with the policies of the Trustees and/or the instructions of any
particular Unitholder to reinvest any such dividends;
(f) UNITHOLDER SERVICING. To provide service with respect to the
relationship of the Trust and its Unitholders, records with respect to
Unitholders and their Units, and similar matters; and
(g) ACCOUNTING. To handle all or any part of the accounting
responsibilities, whether with respect to the Trust's properties, Unitholders or
otherwise.
The same person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or in
addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine. Nothing herein
shall preclude, prevent or limit the Trust or a Contracting Party from entering
into sub-contractual arrangements relating to any of the matters referred to in
Sections 3.3(a) through (g) hereof.
The fact that:
(i) any of the Unitholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party, or of or for any parent or affiliate of any Contracting
Party or that the Contracting Party or any parent or affiliate thereof is a
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Unitholder or has an interest in the Trust or any Sub-Trust, or that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations,
trusts, associations, partnerships, limited partnerships or other
organizations, or has other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust or any Sub-
Trust and/or the Trustees or disqualify any Unitholder, Trustee or officer of
the Trust from voting upon or executing the same or create any liability or
accountability to the Trust, any Sub-Trust or its Unitholders, provided that in
the case of any relationship or interest referred to in the preceding clause (i)
on the part of any Trustee or officer of the Trust either (x) the material facts
as to such relationship or interest have been disclosed to or are known by the
Trustees not having any such relationship or interest and the contract involved
is approved in good faith by a majority of such Trustees not having any such
relationship or interest (even though such unrelated or disinterested Trustees
are less than a quorum of all of the Trustees), (y) the material facts as to
such relationship or interest and as to the contract have been disclosed to or
are known by the Unitholders entitled to vote thereon and the contract involved
is specifically approved in good faith by vote of the Unitholders, or (z) the
specific contract involved is fair to the Trust as of the time it is authorized,
approved or ratified by the Trustees or by the Unitholders.
Section 3.4 PAYMENT OF TRUST EXPENSES AND COMPENSATION OF TRUSTEES. The
Trustees are authorized to pay or to cause to be paid out of the principal or
income of the Trust or any Sub-Trust, or partly out of principal and partly out
of income, and to charge or allocate the same to, between or among such one or
more of the Series that may be established and designated pursuant to Article
IV, as the Trustees deem fair, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust or any Sub-Trust,
or in connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser, administrator, distributor,
principal underwriter, auditor, counsel, depository, custodian, transfer agent,
dividend disbursing agent, accounting agent, Unitholder servicing agent, and
such other agents, consultants, and independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
Without limiting the generality of any other provision hereof, the Trustees
shall be entitled to reasonable compensation from the Trust for their services
as Trustees and may fix the amount of such compensation.
Section 3.5 OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the
assets of the Trust shall at all times be considered as vested in the Trustees.
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ARTICLE IV
UNITS
Section 4.1 DESCRIPTION OF UNITS. The beneficial interest in the Trust
shall be divided into Units, all with $.001 par value and of one class, but the
Trustees shall have the authority from time to time to divide the class of Units
into any number of Series of Units (each of which series of Units shall
represent the beneficial interest in a separate and distinct Sub-Trust of the
Trust, including without limitation the Series specifically established and
designated in Section 4.2), as they deem necessary or desirable. For purposes
of interpreting the relative rights of each Sub-Trust and the Unitholders
thereof, and defining the rights of creditors of any Sub-Trust, each Sub-Trust
established hereunder shall be deemed to be a separate trust. The Trustees
shall have exclusive power without the requirement of Unitholder approval to
establish and designate such Series, and to fix and determine the relative
rights and preferences as between the different Series of Units as to right of
redemption and the price, terms and manner of redemption, special and relative
rights as to dividends and other distributions and on liquidation, sinking or
purchase fund provisions, conversion rights, and conditions under which the
several Series shall have separate voting rights or no voting rights. Except as
aforesaid, as otherwise provided herein, or as provided in an instrument of the
Trustees properly establishing and designating a Series, all Units of the
different Series shall be identical.
The number of authorized Units and the number of Units of each Series that
may be issued is unlimited, and the Trustees may issue Units of any Series for
such consideration and on such terms as they may determine (or for no
consideration if pursuant to a Unit dividend or split-up), all without action or
approval of the Unitholders. All Units when so issued on the terms determined
by the Trustees shall be fully paid and non-assessable (but may be subject to
mandatory contribution back to the Trust as provided in subsection (h) of
Section 4.2). The Trustees may classify or reclassify any unissued Units or any
Units previously issued and reacquired of any Series into one or more Series
that may be established and designated from time to time. The Trustees may hold
as treasury Units (of the same or some other Series), reissue for such
consideration and on such terms as they may determine, or cancel, at their
discretion from time to time, any Units of any Series reacquired by the Trust.
The Trustees may from time to time close the transfer books or establish
record dates and times for the purposes of determining the holders of Units
entitled to be treated as such, to the extent provided or referred to in Section
5.3.
The establishment and designation of any Series of Units in addition to the
Series established and designated in Section 4.2 shall be effective upon the
execution by a majority of the then Trustees of an instrument setting forth such
establishment and
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designation and the relative rights and preferences of such Series, or as
otherwise provided in such instrument. At any time that there are no Units
outstanding of any particular Series previously established and designated the
Trustees may by an instrument executed by a majority of their number abolish or
amend that Series and the establishment and designation thereof. Each
instrument referred to in this paragraph shall have the status of an amendment
to this Declaration of Trust.
Any Trustee, officer or other agent of the Trust, and any organization in
which any such person is interested may acquire, own, hold and dispose of Units
of any Series of the Trust to the same extent as if such person were not a
Trustee, officer or other agent of the Trust; and the Trust may issue and sell
or cause to be issued and sold and may purchase Units of any Series from any
such person or any such organization subject only to the general limitations,
restrictions or other provisions applicable to the sale or purchase of Units of
such Series generally.
Section 4.2 ESTABLISHMENT AND DESIGNATION OF SERIES. Without limiting
the authority of the Trustees set forth in Section 4.1 to establish and
designate any further Series, the Trustees hereby establish and designate two
Series of Units to be known as the "Money Market Portfolio" and the "Government
Securities Portfolio." The Units of the aforesaid Series and of any further
Series that may from time to time be established and designated by the Trustees
shall (unless the Trustees otherwise determine with respect to some further
Series at the time of establishing and designating the same) have the following
relative rights and preferences:
(a) ASSETS BELONGING TO SERIES. All consideration received by the Trust
for the issue or sale of Units of a particular Series, together will 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 payment derived from
any reinvestment of such proceeds in whatever form the same may be, shall be
held by the Trustees in trust in a separate Sub-Trust for the benefit of the
holders of Units of that Series and shall irrevocably belong to that Series for
all purposes, subject only to the rights of creditors of the Sub-Trust
applicable to that Series, and shall be so recorded upon the books of account of
the Trust. Such consideration, assets, income, earnings, profits, and proceeds
thereof, including any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form that same may be, together with any General Items
allocated to that Series as provided in the following sentence, are herein
referred to as "assets belonging to" that Series. In the event that there are
any assets, income, earnings, profits, and proceeds thereof, funds, or payments
which are not readily identifiable as belonging to any particular Series
(collectively "General Items"), the Trustees shall allocate such General Items
to and among any one or more of the Sub-Trusts applicable to the Series
established and designated
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from time to time in such manner and on such basis as they, in their sole
discretion, deem fair and equitable; and any General Items so allocated to the
Sub-Trust applicable to a particular Series shall belong to that Series. Each
such allocation by the Trustees shall be conclusive and binding upon the
Unitholders of all Series for all purposes.
(b) LIABILITIES BELONGING TO SERIES. The assets belonging to each
particular Series shall be charged with the liabilities in respect of that
Series and the Sub-Trust applicable thereto, and all expenses, costs, charges
and reserves attributable to that Series and the Sub-Trust applicable thereto,
and any general liabilities, expenses, costs, charges or reserves of the Trust
which are not readily identifiable as belonging to any particular Series shall
be allocated and charged by the Trustees to and among any one or more of the
Series established and designated from time to time in such manner and on such
basis as the Trustees in their sole discretion deem fair and equitable. The
liabilities, expenses, costs, charges and reserves allocated and so charged to
a Series and the Sub-Trust applicable thereto, are herein referred to as
"liabilities belonging to" that Series. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be conclusive and
binding upon the holders of all Series for all purposes.
The Trustees shall have full discretion, to the extent not inconsistent
with the 1940 Act, to determine which items shall be treated as income and which
items as capital; and each such determination and allocation shall be conclusive
and binding upon the Unitholders.
(c) DIVIDENDS. Dividends and distributions on Units of a particular Series
may be paid with such frequency as the Trustees may determine, which may be
daily or otherwise pursuant to a standing resolution or resolutions adopted only
once or with such frequency as the Trustees may determine, to the holders of
Units of that Series, from such of the income and capital gains, accrued or
realized, from the assets belonging to that Series, as the Trustees may
determine, after providing for actual and accrued liabilities belonging to that
Series. All dividends and distributions on Units of a particular Series shall
be distributed pro rata to the holders of that Series in proportion to the
number of Units of that Series held by such holders at the date and time of
record established for the payment of such dividends or distributions, except
that in connection with any dividend or distribution program or procedure the
Trustees may determine that no dividend or distribution shall be payable on
Units as to which the Unitholder's purchase order and/or payment have not been
received by the time or times established by the Trustees under such program or
procedure. Such dividends and distributions may be made in cash or Units or a
combination thereof as determined by the Trustees or pursuant to any program
that the Trustees may have in effect at the time for the election by each
Unitholder of the mode of the making of such dividend or distribution to that
Unitholder. Any such dividend or distribution paid in Units will be paid at the
net asset value
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thereof as determined in accordance with subsection (h) of Section 4.2
Subject to the authority of the Trustees otherwise to determine if they
believe that it is in the interest of the Trust or of any Sub-Trust at any time
or times, is expected that each Sub-Trust will qualify as a "regulated
investment company" under the Internal Revenue Code of 1954, as amended, or any
successor or comparable statute thereto, and regulations promulgated thereunder.
Inasmuch as the computation of net income and gains for Federal income tax
purposes may vary from the computation thereof on the books of the Trust, the
Trustees shall have the power, in their sole discretion, to distribute in any
fiscal year as dividends, including dividends designated in whole or in part as
capital gains distributions, amounts sufficient, in the opinion of the Trustees,
to enable the Trust and each particular Sub-Trust to qualify as a regulated
investment company and to avoid liability of the Trust and of that Sub-Trust for
Federal income tax in respect of that year. However, nothing in the foregoing
shall limit the authority of the Board of Trustees to make distributions greater
than or less than the amount necessary to qualify as a regulated investment
company and to avoid liability of the Trust or of any Sub-Trust for such tax.
(d) LIQUIDATION. In event of the liquidation or dissolution of the Trust,
the Unitholders of each Series that has been established and designated shall be
entitled to receive, as a Series, when and as declared by the Trustees, the
excess of the assets belonging to that Series over the liabilities belonging to
that Series. The assets so distributable to the Unitholders of any particular
Series shall be distributed among such Unitholders in proportion to the number
of Units of that Series held by them and recorded on the books of the Trust.
The liquidation of any particular Series may be authorized either by vote of a
majority of the Trustees then in office or by a majority of the outstanding
voting securities, as defined in the 1940 Act, (Units) of that Series.
(e) VOTING. On each matter submitted to a vote of the Unitholders, each
holder of a Unit shall be entitled to one vote for each such Unit standing in
his name on the books of the Trust irrespective of the Series thereof and all
Units of all Series shall vote as a single class ("Single Class Voting");
provided, however, that (a) as to any matter with respect to which a separate
vote of any Series is required by the 1940 Act or would be required under the
Massachusetts Business Corporation Law if the Trust were a Massachusetts
business corporation, such requirements as to a separate vote by that Series
shall apply in lieu of Single Class Voting as described above; (b) in the event
that the separate vote requirements referred to in (a) above apply with respect
to one or more Series, then, subject to (c) below, the Units of all other Series
shall vote as a single class; and (c) as to any matter which does not affect the
interest of a particular Series, only the holders of Units of the one or more
affected Series shall be entitled to vote.
13
(f) REDEMPTION BY UNITHOLDER. Each holder of Units of a particular Series
shall have the right at such times as may be permitted by the Trust, but no less
frequently than once each week, to require the Trust to redeem all or any part
of his Units of that Series at a redemption price equal to the net asset value
per Unit of that Series next determined in accordance with subsection (h) of
this Section 4.2 after the Units are properly tendered for redemption. Payment
of the redemption price shall be in cash; provided, however, that if the
Trustees determine, which determination shall be conclusive, that conditions
exist which make payment wholly in cash unwise or undesirable, the Trust may,
subject to the requirements of the 1940 Act, make payment wholly or partly in
securities or other assets belonging to the Series of which the Units being
redeemed are part at the value of such securities or assets used in such
determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the holder of Units of any Series
to require the Trust to redeem Units of that Series during any period or at any
time when and to the extent permissible under the 1940 Act.
(g) REDEMPTION BY TRUST. Each Unit of each Series that has been
established and designated is subject to redemption by the Trust at the
redemption price which would be applicable if such Unit was then being redeemed
by the Unitholder pursuant to subsection (f) of this Section 4.2 at any time if
the Trustees determine in their sole discretion and by majority vote that
failure to so redeem may have materially adverse consequences to the holders of
the Units, or any Series thereof, of the Trust, and upon such redemption the
holders of the Units so redeemed shall have no further right with respect
thereto other than to receive payment of such redemption price. In addition,
the Trustees, in their sole discretion, may cause the Trust to redeem all of the
Units of one or more Series held by any Unitholder if the value of such Units
held by such Unitholder is less than the minimum amount established from time to
time by the Trustees.
(h) NET ASSET VALUE. The net asset value per Unit of any Series shall be
the quotient obtained by dividing the value of the net assets of that Series
(being the value of the assets belonging to that Series less the liabilities
belonging to that Series) by the total number of Units of that Series
outstanding, all determined in accordance with the methods and procedures,
including without limitation those with respect to rounding, established by the
Trustees from time to time.
The Trustees may determine to maintain the net asset value per Unit of any
Series at a designated constant amount and in connection therewith may adopt
procedures not inconsistent with the 1940 Act for the continuing declarations of
income attributable to that Series as dividends payable in additional Units of
that Series at the designated constant amount and for the handling of any losses
attributable to that Series. Such procedures may provide that in the event of
any loss each Unitholder shall be deemed to
14
have contributed to the capital of the Trust attributable to that Series his pro
rata portion of the total number of Units required to be cancelled in order to
permit the net asset value per Unit of that Series to be maintained, after
reflecting such loss, at the designated constant amount. Each Unitholder of the
Trust shall be deemed to have agreed, by his investment in the Trust, to make
the contribution referred to in the preceding sentence in the event of any such
loss.
(i) TRANSFER. All Units of each particular Series shall be transferable,
but transfers of Units of a particular Series will be recorded on the Unit
transfer records of the Trust applicable to that Series only at such times as
Unitholders shall have the right to require the Trust to redeem Units of that
Series and at such other times as may be permitted by the Trustees.
(j) EQUALITY. All Units of each particular Series shall represent an equal
proportionate interest in the assets belonging to that Series (subject to the
liabilities belonging to that Series), and each Unit of any particular Series
shall be equal to each other Unit of that Series; but the provisions of this
sentence shall not restrict any distinctions permissible under subsection (c) of
this Section 4.2 that may exist with respect to dividends and distributions on
Units of the same Series. The Trustees may from time to time divide or combine
the Units of any particular Series into a greater or lesser number of Units of
that Series without thereby changing the proportionate beneficial interest in
the assets belonging to that Series or in any way affecting the rights of Units
of any other Series.
(k) FRACTIONS. Any fractional Unit of any Series, if any such fractional
Share is outstanding, shall carry proportionately all the rights and obligations
of a whole Unit of that Series, including with respect to voting, receipt of
dividends and distributions, redemption of Units, and liquidation of the Trust.
(l) CONVERSION RIGHTS. Subject to compliance with the requirements of the
1940 Act, the Trustees shall have the authority to provide that holders of Units
of any Series shall have the right to convert such Units into Units of one or
more other Series in accordance with such requirements and procedures (involving
as to the transfer of assets equivalent to the net asset value of the Units so
converted among the applicable Sub-Trusts) as may be established by the
Trustees.
Section 4.3 OWNERSHIP OF UNITS. The ownership of Units shall be
recorded on the books of the Trust or of a transfer or similar agent for the
Trust, which books shall be maintained separately for the Units of each Series
that has been established and designated. No certificates certifying the
ownership of Units need be issued except as the Trustees may otherwise determine
from time to time. The Trustees may make such rules as they consider
appropriate for the issuance of Unit certificates, the use of facsimile
signatures, the transfer of Units and similar matters. The record books of the
Trust as kept by the Trust or any transfer
15
or similar agent, as the case may be, shall be conclusive as to who are the
Unitholders and as to the number of Units of each Series held from time to time
by each such Unitholder.
Section 4.4 INVESTMENTS IN THE TRUST. The Trustees may accept
investments in the Trust and each Sub-Trust from such persons and on such terms
and for such consideration, not inconsistent with the provisions of the 1940
Act, as they from time to time authorize. The Trustees may authorize any
distributor, principal underwriter, custodian, transfer agent or other person to
accept orders for the purchase of Units that conform to such authorized terms
and to reject any purchase orders for Units whether or not conforming to such
authorized terms.
Section 4.5 NO PREEMPTIVE RIGHTS. Unitholders shall have no preemptive
or other right to subscribe to any additional Units or other securities issued
by the Trust.
Section 4.6 STATUS OF UNITS AND LIMITATION OF PERSONAL LIABILITY. Units
shall be deemed to be personal property giving only the rights provided in this
instrument. Every Unitholder by virtue of having become a Unitholder shall be
held to have expressly assented and agreed to the terms hereof and to have
become a party hereto. The death of a Unitholder during the continuance of the
Trust shall not operate to terminate the Trust or any Sub-Trust nor entitle the
representative of any deceased Unitholder to an accounting or to take any action
in court or elsewhere against the Trust, any Sub-Trust or the Trustees, but only
to the rights of said decedent under this Trust. Ownership of Units shall not
entitle the Unitholder 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 Units constitute the Unitholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or
agent of the Trust shall have any power to bind personally any Unitholder, nor
except as specifically provided herein to call upon any Unitholder for the
payment of any sum of money or assessment whatsoever other than such as the
Unitholder may at any time personally agree to pay.
Section 4.7 NO APPRAISAL RIGHTS. Unitholders shall have no right to
demand payment for their Units or to any other rights of dissenting Unitholders
in the event the Trust participates in any transaction which would give rise to
appraisal or dissenters' rights by a Unitholder of a corporation organized under
Chapter 156B of the General laws of The Commonwealth of Massachusetts.
ARTICLE V
UNITHOLDERS' POWERS AND MEETINGS
Section 5.1 VOTING POWERS. The Unitholders shall have power to vote
only (i) for the election or removal of Trustees as provided in Section 3.1,
(ii) with respect to any contract with a Contracting Party as provided in
Section 3.3 as to which Unitholder
16
approval is required by the 1940 Act, (iii) with respect to any termination or
reorganization of the Trust or any Sub-Trust to the extent and as provided in
Sections 7.1 and 7.2, (iv) with respect to any amendment of this Declaration of
Trust to the extent and as provided in Section 7.3, (v) to the same extent as
the stockholders of a Massachusetts business corporation as to whether or not a
court action, proceeding or claim should or should not be brought or maintained
derivatively or as a class action on behalf of the Trust or the Unitholders, and
(vi) with respect to such additional matters relating to the Trust or any Sub-
Trust as may be required by the 1940 Act, this Declaration of Trust, the By-Laws
or any registration of the Trust with the Commission (or any successor agency)
or any state, or as the Trustees may consider necessary or desirable. There
shall be no cumulative voting in the election of any Trustee or Trustees. Units
may be voted in person or by proxy. A proxy with respect to Units 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 Unitholder shall be deemed valid unless challenged at or
prior to its exercise and the burden of proving invalidity shall rest on the
challenger. Until Units are issued, the Trustees may exercise all rights of
Unitholders and may take any action required by law, this Declaration of Trust
or the By-Laws to be taken by Unitholders.
Section 5.2 MEETINGS. No annual or regular meeting of Unitholders is
required. Special meetings of the Unitholders (including meetings involving
only the holders of Units of one or more but less than all Series) may be called
by the Trustees from time to time to be held at such place within or without the
Commonwealth of Massachusetts, and on such date, as may be designated in the
call thereof for the purpose of taking action upon any matter permitting or
requiring the vote or authority of the Unitholders as provided in Section 5.1.
Written notice of any such meeting 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 Unitholder
entitled to vote at such meeting at the Unitholder'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 Unitholders (including a meeting involving only the holders of
Units of one or more but less than all Series) for a period of 75 days after
written request by Unitholders holding at least a majority of the Units then
outstanding of any Series entitled to vote upon any matter requiring action by
the Unitholders as provided herein that a meeting be called to consider such
matter, then Unitholders holding at least a majority of the Units then
outstanding of such Series may call and give notice of such meeting, and
thereupon the meeting shall be held in the manner provided for herein in case of
call thereof by the Trustees.
Section 5.3 RECORD DATES FOR MEETINGS (AND OTHER PURPOSES). For the
Purpose of determining the Unitholders who are entitled to vote or act at any
meeting or any adjournment thereof, or who are
17
entitled to participate in any dividend or distribution, or for the purpose of
any other action, the Trustees may from time to time close the transfer books
for such period, not exceeding 30 days (except at or in connection with the
termination of the Trust), as the Trustees may determine; or without closing the
transfer books the Trustees may fix a date and time not more than 60 days prior
to the date of any meeting of Unitholders or other action as the date and time
of record for the determination of Unitholders entitled to vote at such meeting
or any adjournment thereof or to be treated as Unitholders of record for
purposes of such other action, and any Unitholder who was a Unitholder at the
date and time so fixed shall be entitled to vote at such meeting or any
adjournment thereof or (subject to any provisions permissible under subsection
(c) of Section 4.2 with respect to dividends or distributions on Units that have
not been ordered and/or paid for by the time or times established by the
Trustees under the applicable dividend or distribution program or procedure then
in effect) to be treated as a Unitholder of record for purposes of such other
action, even though he has since that date and time disposed of his Units, and
no Unitholder becoming such after that date and time shall be so entitled to
vote at such meeting or any adjournment thereof or to be treated as a Unitholder
of record for purposes of such other action.
Section 5.4 A QUORUM AND REQUIRED VOTE. A majority of the Units
entitled to vote shall be a quorum for the transaction of business at a
Unitholders' meeting, but any lesser number shall be sufficient for
adjournments. Any adjourned session or sessions may be held, within a
reasonable time after the date set for the original meeting, without the
necessity of further notice. A majority of the Units voted, at a meeting at
which a quorum is present, shall decide any questions and a plurality shall
elect a Trustee, except when a different vote is required or permitted by any
provision of the 1940 Act or other applicable law or by this Declaration of
Trust or the By-Laws.
Section 5.5 ACTION BY WRITTEN CONSENT. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Unitholders may be taken
without a meeting if a majority of Unitholders entitled to vote on the matter
(or such larger proportion thereof shall be required by the 1940 Act or by any
express provision of this Declaration of Trust or the By-Laws) consent to the
action in writing and such written consents are filed with the records of the
meetings of Unitholders. Such consent shall be treated for all purposes as a
vote taken at a meeting of Unitholders.
Section 5.6 INSPECTION OF RECORDS. The records of the Trust shall be
open to inspection by Unitholders to the same extent as is permitted
stockholders of a Massachusetts business corporation under the Massachusetts
Business Corporation Law.
Section 5.7 ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Unitholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
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Section 5.8 UNITHOLDER COMMUNICATIONS. Whenever ten or more Unitholders
of records who have been such for at least six months preceding the date of
application, and who hold in the aggregate either Units having a net asset value
of at least $25,000 or at least 1% of the outstanding Units, whichever is less,
shall apply to the Trustees in writing, stating that they wish to communicate
with other Unitholders with a view to obtaining signatures to a request for a
Unitholder meeting and accompanied by a form of communication and request which
they wish to transmit, the Trustees shall within five business days after
receipt of such application either (1) afford to such applicants access to a
list of the names and addresses of all Unitholders as recorded on the books of
the Trust or Sub-Trust, as applicable; or (2) inform such applicants as to the
approximate number of Unitholders of record, and the approximate cost of mailing
to them the proposed communication and form of request.
If the Trustees elect to follow the course specified in clause (2) above,
the Trustees, upon the written request of such applicants, accompanied by a
tender of the material to be mailed and of the reasonable expenses of mailing,
shall, with reasonable promptness, mail such material to all Unitholders of
record at their addresses as recorded on the books, unless within five business
days after such tender the Trustees shall mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a written
statement signed by at least a majority of the Trustees to the effect that in
their opinion either such material contains untrue statements of fact or omits
to state facts necessary to make the statements contained therein not
misleading, or would be in violation of applicable law, and specifying the basis
of such opinion. The Trustees shall thereafter comply with any order entered by
the Commission and the requirements of the 1940 Act and the Securities Exchange
Act of 1934.
ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 6.1 TRUSTEES, UNITHOLDERS, ETC. NOT PERSONALLY LIABLE; NOTICE.
All persons extending credit to, contracting with or having any claim against
the Trust shall look only to the assets belonging to the Series with which (or
with whose applicable Sub-Trust) such person dealt for payment under such
credit, contract or claim; and neither the Unitholders nor the Trustees, nor any
of the Trust's officers, employees or agents, whether past, present or future,
nor the assets belonging to any other Series shall be personally liable
therefor. Every note, bond, contract, instrument, certificate or undertaking
and every other act or thing whatsoever executed or done by or on behalf of the
Trust, any Sub-Trust or the Trustees or any of them in connection with the Trust
or any Sub-Trust shall be conclusively deemed to have been executed or done only
by or for the Trust or such Sub-Trust or the Trustees and not personally.
Nothing in this Declaration of Trust shall protect any Trustee or officer
against any liability to the Trust
19
or the Unitholders to which such Trustee or officer would otherwise be subject
by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee or of
such officer.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officers or officer shall give notice that this
Declaration of Trust is on file with the Secretary of The Commonwealth of
Massachusetts and shall recite to the effect that the same was executed or made
by or on behalf of the Trust or by them as Trustees or Trustee or as officers or
officer and not individually and that the obligations of such instrument are not
binding upon any of them or the Unitholders individually but are not binding
only upon the assets and property of the Trust, or the Sub-Trust in question,
but the omission thereof shall not operate to bind any Trustees or Trustee or
officers or officer or Unitholders or Unitholder individually.
Section 6.2 TRUSTEE'S GOOD FAITH ACTION; EXPERT ADVICE; NO BOND OR
SURETY. The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. A Trustee shall be liable for his
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.
Subject to the foregoing, (a) the Trustees shall not be responsible or liable in
any event for any neglect or wrongdoing of any officer, agent, employee,
consultant, adviser, administrator, distributor or principal underwriter,
custodian or transfer, dividend disbursing, Unitholder servicing or accounting
agent of the Trust, nor shall any Trustee be responsible for the act or omission
of any other Trustee; (b) the Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust
and their duties as Trustees, and shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such advice;
and (c) in discharging their duties, the Trustees, when acting in good faith,
shall be entitled to rely upon the books of account of the Trust and upon
written reports made to the Trustees by any officer appointed by them, any
independent public accountant, and (with respect to the subject matter of the
contract involved) any officer, partner or responsible employee of a Contracting
Party appointed by the Trustees pursuant to Section 3.3. The Trustees as such
shall not be required to give any bond or surety or any other security for the
performance of their duties.
Section 6.3 INDEMNIFICATION OF UNITHOLDERS. In case any Unitholder or
former Unitholder of any Series shall be charged or held to be personally liable
for any obligation or liability of the Trust solely by reason of being or having
been a Unitholder and not because of such Unitholder's acts or omissions or for
some other reason, the Trust (upon proper and timely request by the Unitholder)
shall assume the defense against such charge and satisfy any judgment thereon,
and the Unitholder or former
20
Unitholder (or his heirs, executors, administrators or other legal
representatives or in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled out of the assets belonging to the
Series of which such Unitholder is a holder to be held harmless from and
indemnified against all loss and expense arising from such liability.
Section 6.4 INDEMNIFICATION OF TRUSTEES, OFFICER, ETC. The Trust shall
indemnify (from the assets belonging to the Series in question) each of its
Trustees and officers and 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, including but not limited to amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and
expenses, including reasonable accountants' and counsel fees, incurred by any
Covered Person in connection with the defense or disposition of any action, suit
or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which such Covered Person may be or may
have been involved as a party or otherwise or with which such person may be or
may have been threatened, while in office or thereafter, by reason of being or
having been such a Trustee or officer, director or trustee, except that no
Covered Person shall be indemnified against any liability to the Trust or its
Unitholders to which such Covered Person would otherwise be subject 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 (such wilful
misfeasance, bad faith, gross negligence or reckless disregard being referred to
herein as "Disabling Conduct"). Expenses, including accountants' and counsel
fees so incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), may be paid
from time to time by the Trust in advance of the final disposition of any such
action, suit or proceeding upon receipt of (a) 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 VI and either (b) such Covered Person provides security for such
undertaking, (c) the Trust is insured against losses arising by reason of such
payment, or (d) a majority of a quorum of disinterested, non-party Trustees, or
independent legal counsel in a written opinion, determines, based on a review of
readily available facts, that there is reason to believe that such Covered
Person ultimately will be found entitled to indemnification.
Section 6.5 INDEMNIFICATION DETERMINATIONS. Indemnifica-tion of the
Covered Person pursuant to Section 6.4 shall be made if (a) the court or body
before whom the proceeding is brought determines, in a final decision on the
merits, that such Covered Person was not liable by reason of Disabling Conduct
or (b) in the absence of such a determination, a majority of a quorum of
disinterested, non-party Trustees or independent legal counsel in a written
opinion make a reasonable determination, based upon a
21
review of the facts, that such Covered Person was not liable by reason of
Disabling Conduct.
Section 6.6 INDEMNIFICATION NOT EXCLUSIVE, ETC. The right of
indemnification provided by this Article VI shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used in
this Article VI, "Covered Person" shall include such person's heirs, executors
and administrators, and a "disinterested, non-party Trustee" is a Trustee who is
neither an interested person of the Trust (as defined in the 0000 Xxx) nor a
party to the proceeding in question. Nothing contained in this article shall
affect any rights to indemnification to which personnel of the Trust, other than
Trustees and officers, and other persons may be entitled by contract or
otherwise under law, nor the power of the Trust to purchase and maintain
liability insurance on behalf of any such person.
Section 6.7 LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
ARTICLE VII
MISCELLANEOUS
Section 7.1 DURATION AND TERMINATION OF TRUST. Unless terminated as
provided herein, the Trust shall continue without limitation of time and without
limiting the generality of the foregoing, no change, alteration or modification
with respect to any Series shall operate to terminate the Trust. The Trust or
any Series may be terminated at any time by a majority of the Trustees then in
office subject to a favorable vote of a majority of the outstanding voting
securities, as defined in the 1940 Act, (Units) of each Series voting separately
by Series.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may be
determined by the Trustees, the Trust shall in accordance with such procedures
as the Trustees consider appropriate reduce the remaining assets to
distributable form in cash, securities or other property, or any combination
thereof, and distribute the proceeds to the Unitholders, in conformity with the
provisions of subsection (d) of Section 4.2.
Section 7.2 REORGANIZATION. The Trustees may sell, convey and transfer
the assets of the Trust, or the assets belonging to any one or more Series, to
another trust, partnership, association or corporation organized under the laws
of any state of the United States, or to the Trust to be held as assets
belonging to another Series of the Trust, in exchange for cash, shares or other
securities (including, in the case of a transfer to another Series
22
of the Trust, Units of such other Series) with such transfer being made subject
to, or with the assumption by the transferee of, the liabilities belonging to
each Series the assets of which are so transferred; provided, however, that no
assets belonging to any particular Series shall be so transferred unless the
terms of such transfer shall have first been approved at a meeting called for
the purpose by the affirmative vote of the holders of a majority of the
outstanding voting securities, as defined in the 1940 Act, (Units) of that
Series. Following such transfer, the Trustees shall distribute such cash,
shares or other securities (giving due effect to the assets and liabilities
belonging to and any other differences among the various Series the assets
belonging to which have so been transferred) among the Unitholders of the Series
the assets belonging to which have been so transferred; and if all of the assets
of the Trust have been so transferred, the Trust shall be terminated.
Section 7.3 AMENDMENTS. All rights granted to the Unitholders under
this Declaration of Trust are granted subject to the reservation of the right to
amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any Unitholder or Trustee
or repeal the prohibition of assessment upon the Unitholders without the express
consent of each Unitholder or Trustee involved. Subject to the foregoing, the
provisions of this Declaration of Trust (whether or not related to the rights of
Unitholders) may be amended at any time by an instrument in writing signed by a
majority of the then Trustees (or by an officer of the Trust pursuant to the
vote of a majority of such Trustees), when authorized so to do by the vote in
accordance with subsection (e) of Section 4.2 of Unitholders holding a majority
of the Units entitled to vote, except that amendments (a) establishing and
designating any new Series of Units not established and designated in Section
4.2, (b) abolishing or liquidating a Series of Units or the Sub-Trust applicable
to such Series, (c) having the purpose of changing the name of the Trust or the
name of any Units theretofore established and designated, or (d) supplying any
omission, curing any ambiguity or curing, correcting or supplementing any
provision hereof which is internally inconsistent with any other provision
hereof or which is defective or inconsistent with the 1940 Act or with the
requirements of the Internal Revenue Code and applicable regulations for the
Trust's obtaining the most favorable treatment thereunder available to regulated
investment companies, shall not require authorization by Unitholder vote.
Subject to the foregoing, any such amendment shall be effective as provided in
the instrument containing the terms of such amendment or, if there is no
provision therein with respect to effectiveness, upon the execution of such
instrument and of a certificate (which may be a part of such instrument)
executed by a Trustee or officer of the Trust to the effect that such amendment
has been duly adopted.
Section 7.4 FILING OF COPIES; REFERENCES; HEADINGS. The original or a
copy of this instrument and of each amendment hereto shall be kept at the office
of the Trust where it may be inspected by any Unitholder. A copy of this
instrument and of each amendment
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hereto shall be filed by the Trust with the Secretary of the Commonwealth of
Massachusetts and with the Boston City Clerk, as well as any other governmental
office where such filing may from time to time be required, but the failure to
make any such filing shall not impair the effectiveness of this instrument or
any such amendment. Anyone dealing with the Trust may rely on a certificate by
an officer of the Trust as to whether or not any such amendments have been made,
as to the identities of the Trustees and officers, and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this instrument or of any such amendments. In this instrument and in any
such amendment, references to this instrument, and all expressions like
"herein", "hereof" and "hereunder" shall be deemed to refer to this instrument
as a whole as the same may be amended or affected by any such amendments. The
masculine gender shall include the feminine and neuter genders. Headings are
placed herein for convenience of reference only and shall not be taken as a part
hereof or control or affect the meaning, construction or effect of this
instrument. This instrument may be executed in any number of counterparts each
of which shall be deemed an original.
Section 7.5 APPLICABLE LAW. This Declaration of Trust is made in The
Commonwealth of Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said Commonwealth,
including the Massachusetts Business Corporation Law as the same may be amended
from time to time, to which reference is made with the intention that matters
not specifically covered herein or as to which an ambiguity may exist shall be
resolved as if the Trust were a business corporation organized in Massachusetts,
but the reference to said Business Corporation Law is not intended to give the
Trust, the Trustees, the Unitholders or any other person any right, power,
authority or responsibility available only to or in connection with an entity
organized in corporate form. The Trust shall be of the type referred to in
Section 1 of Chapter 182 of the Massachusetts General Laws and of the type
commonly called a Massachusetts business trust, and without limiting the
provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
IN WITNESS WHEREOF, the undersigned Initial Trustee has hereunto set his
hand and seal in the City of Chicago, Illinois for himself and his assigns, as
of the day and year first above written.
X.X. Xxxxxxx, Xx.
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X.X. Xxxxxxx, Xx.
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State of Illinois
Xxxx County
Then personally appeared the above-named X.X. Xxxxxxx, Xx., who
acknowledged the foregoing Agreement and Declaration of Trust of Trust for
Credit Unions and his execution thereof to be his free act and deed, before me,
this 1st day of December, 1987.
Xxxxx Xxxxxxx
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Notary Public
My commission expires October 8, 1989
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