SENIOR FUNDS
MASTER TRUST AGREEMENT
DECEMBER 13, 2000
DECLARATIONS ................................................................ 3
ARTICLE I. NAME AND DEFINITIONS
Section 1.1 Name and Principal Office ..................................... 3
Section 1.2 Definitions ................................................... 3
By-Laws ................................................................ 3
The 1940 Act ........................................................... 3
Commission ............................................................. 3
Series ................................................................. 3
Shareholder ............................................................ 4
Shares ................................................................. 4
Trust .................................................................. 4
Agreement .............................................................. 4
Trustees ............................................................... 4
Class .................................................................. 4
ARTICLE II. PURPOSE OF TRUST ................................................ 4
ARTICLE III. THE TRUSTEES
Section 3.1 Appointment, Election, Removal, Etc ........................... 4
Initial Trustees ....................................................... 4
Number ................................................................. 4
Election ............................................................... 4
Term ................................................................... 4
Vacancies .............................................................. 5
Resignation ............................................................ 5
Removal ................................................................ 5
Effect of Death, Resignation, Etc ...................................... 5
No Accounting .......................................................... 5
Section 3.2 Powers ........................................................ 5
Investments ............................................................ 6
Disposition of Assets .................................................. 6
Ownership Powers ....................................................... 6
Subscription ........................................................... 6
Form of Holding ........................................................ 6
Reorganization, Etc .................................................... 6
Voting Trusts, Etc ..................................................... 6
Compromise ............................................................. 6
Associations, Etc ...................................................... 6
Borrowing and Security ................................................. 6
Guarantees, Etc ........................................................ 6
Insurance .............................................................. 6
Vote Required, Place and Type of Meeting ............................... 7
Distribution Plans ..................................................... 7
Section 3.3 Certain Contracts ............................................. 7
Section 3.4 Trust Expenses ................................................ 8
Section 3.5 Ownership of Assets of the Trust .............................. 8
ARTICLE IV. SHARES/SUB-TRUSTS
Section 4.1 Description of Shares ......................................... 8
Section 4.2 Establishment and Designation of Sub-Trusts ................... 9
Section 4.3 Rights and Preferences of Sub-Trusts .......................... 9
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Assets Belonging to Sub-Trusts ......................................... 9
Liabilities Belonging to Sub-Trusts .................................... 10
Determination of Treatment as Income and/or Capital .................... 10
Dividends .............................................................. 10
Liquidation ............................................................ 10
Voting ................................................................. 10
Redemption by Shareholder .............................................. 11
Redemption by Trust .................................................... 11
Net Asset Value ........................................................ 11
Transfer ............................................................... 11
Equality ............................................................... 11
Fractions .............................................................. 12
Conversion Rights ...................................................... 12
Class Differences ...................................................... 12
Section 4.4 Ownership of Shares ........................................... 12
Section 4.5 Investments in the Trust ...................................... 12
Section 4.6 No Preemptive Rights .......................................... 12
Section 4.7 Status of Shares and Limitation of Personal Liability ......... 12
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 Voting Powers ................................................. 13
Section 5.2 Meetings and Notice ........................................... 13
Section 5.3 Record Dates .................................................. 14
Section 5.4 Quorum and Required Vote ...................................... 14
Section 5.5 Action by Written Consent ..................................... 14
Section 5.6 Inspection of Records ......................................... 14
Section 5.7 Additional Provisions ......................................... 14
Section 5.8 Shareholder Communications .................................... 14
ARTICLE VI. LIMITATION OF LIABILITY; INDEMNIFICATION
Section 6.1 Trustees, Shareholders, Etc. Not Personally Liable, Notice .... 15
Section 6.2 Notice for Contracts .......................................... 15
Section 6.3 Trustee's Good Faith Action; Expert Advice; No Bond ........... 16
Section 6.4 Indemnification of Shareholders ............................... 16
Section 6.5 Indemnification of Trustees, Officers, Etc .................... 16
Section 6.6 Compromise Payment ............................................ 17
Section 6.7 Indemnification Not Exclusive, Etc ............................ 17
Section 6.8 Liability of Third Persons Dealing with Trustees .............. 17
ARTICLE VII. MISCELLANEOUS
Section 7.1 Duration and Termination of Trust ............................. 17
Section 7.2 Reorganization ................................................ 18
Section 7.3 Amendments .................................................... 18
Section 7.4 Filing of Copies; References; Headings ........................ 19
Section 7.5 Applicable Law ................................................ 19
Section 7.6 Resident Agent ................................................ 20
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SENIOR FUNDS
MASTER TRUST AGREEMENT
This AGREEMENT AND DECLARATION OF TRUST (the "Agreement") is made at Houston,
Texas, the 13th day of December 2000, by the Trustees named under this
Agreement, and by the holders of shares of beneficial interest to be issued as
provided under this Agreement as follows:
DECLARATIONS
WHEREAS this Trust has been created to conduct the business of an investment
company; and
WHEREAS this Trust is authorized to issue, in accordance with the provisions of
this Agreement, its shares of beneficial interest in separate series, with each
separate series to be a Sub-Trust described in this Agreement;
WHEREAS the Trustees have agreed to manage the property received by them as
trustees of a Massachusetts business trust in accordance with the provisions in
this Agreement.
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets which they may acquire (from time to time) as
Trustees under this Agreement IN TRUST to manage and dispose of the same upon
the following terms and conditions for the benefit of the holders from time to
time of shares of beneficial interest in this Trust or Sub-Trusts created under
this Agreement as hereinafter set forth.
ARTICLE I.
NAME AND DEFINITIONS
SECTION 1.1 NAME AND PRINCIPAL OFFICE. This Trust shall be known as Senior Funds
and the Trustees will conduct the business of the Trust under that name or any
other name or names as they may from time to time determine. The principal place
of business of the Trust shall be 00000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000, or at such other location as the Trustees may from time to
time determine.
SECTION 1.2 DEFINITIONS. Unless otherwise specifically stated, the following
terms shall mean:
(a) "By-Laws" shall mean the By-Laws of the Trust as amended from time to
time;
(b) The "1940 Act" refers to the Investment Company Act of 1940 and
regulations thereunder, all as amended from time to time;
(c) The term "Commission" shall have the meaning given it in the 1940 Act;
(d) "Series" refers to Series of Shares established and designated under
or in accordance with the provisions of Article IV, each of which
Series shall be a Sub-Trust of the Trust;
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(e) "Shareholder" means a record owner of Shares;
(f) "Shares" refers to the transferable units of interest into which the
beneficial interest in the Trust and each Sub-Trust of the Trust (as
the context may require) shall be divided from time to time;
(g) The "Trust" refers to the Senior Funds business trust established by
this Agreement, as amended from time to time, inclusive of each and
every Sub-Trust established hereunder;
(h) "Agreement" shall mean this Agreement and Declaration of Trust as
amended or restated from time to time;
(i) "Trustees" refers to the Trustees of the Trust named herein or elected
in accordance with Article III;
(j) "Class" refers to any class of Shares of any Series or Sub-Trust
established and designated under or in accordance with the provisions
of Article IV.
ARTICLE II.
PURPOSE OF TRUST
The purpose of the Trust is to conduct the business of an investment company,
offering Shareholders of the Trust one or more investment programs; and to
engage in any business allowable under applicable law which the Trustees may
deem convenient or proper in furtherance of the Trust's business.
ARTICLE III.
THE TRUSTEES
SECTION 3.1 APPOINTMENT, ELECTION, REMOVAL, ETC.
(a) Initial Trustees. Upon the execution of this Declaration of Trust or a
counterpart hereof or some other writing in which he or she accepts
such Trusteeship and agrees to the provisions hereof, Xxxxxx X. Xxxxx
of Houston, Texas shall become Trustee of the Trust and of each
Sub-Trust hereunder.
(b) Number. The Trustee(s) serving as such, whether named above or
hereafter appointed or elected, have the discretion to increase or
decrease the number of Trustees. No decrease in the number of Trustees
may remove any Trustee from office prior to the expiration of his
term; however, a decrease in the number of Trustees may coincide with
the removal of a Trustee pursuant to subsection (g) of this Section
3.1.
(c) Election. The Shareholders shall elect the Trustees of the Trust.
Subject to Section 16(a) of the 1940 Act, the Trustees may elect their
own successors and may, pursuant to Section 3.1(e), appoint Trustees
to fill vacancies.
(d) Term. Whether named above, appointed, or elected pursuant to the terms
of this Agreement, a Trustee shall serve as a Trustee of the Trust and
each Sub-Trust hereunder for a period of six (6) years or until
termination of the Trust or the Trustees' death, resignation or
removal, whichever occurs first. Notwithstanding the foregoing, the
Trustees' terms shall be staggered so that the terms of at least
twenty-five percent (25%) of the Board of Trustees will expire every
three (3) years. This provision shall not be construed to preclude
re-election of a Trustee whose term is expiring.
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(e) Vacancies. Any vacancy resulting from death, resignation, removal or
any other means, including without limitation an increase in the
number of Trustees by the other Trustees, or any anticipated vacancy
may (but need not unless required by the 0000 Xxx) be filled by a
majority of the remaining Trustees. Subject to the provisions of
Section 16(a) of the 1940 Act, the remaining Trustees, in their sole
discretion, may appoint in writing a Trustee to fill a vacancy, and
this appointment shall become effective upon the written acceptance of
such named person and his agreement to be bound by the provisions of
this Agreement. In the event of an appointment to fill an anticipated
vacancy, the appointment shall become effective at or after the date
the anticipated vacancy occurs. No further act is necessary for the
Trust estate to vest in the new Trustee once the appointment is
effective.
(f) Resignation. A Trustee may resign as a trustee by delivering to the
Trustees or any Trust officer a signed written document to that
effect. The effective date of such resignation will be the later of
date stated in the document or, the date of delivery of the document
to the Trust at its principal offices.
(g) Removal. Any Trustee may be removed with or without cause at any time
either: (i) by a written document stating the effective date of the
removal and signed by at least two-thirds of the number of Trustees
prior to such removal; or (ii) by at least a two-thirds vote of the
outstanding shares, with such vote cast in person or by proxy at a
meeting called for such purpose; or (iii) by a written declaration
signed by Shareholders owning at least two-thirds of the outstanding
shares and filed with the Trust's custodian.
(h) Effect of Death, Resignation, Etc. The death, resignation, retirement,
removal, or incapacity of one or more of the Trustees shall not
terminate the Trust or any Sub-Trust or revoke or terminate any
existing agency or contract created or entered into pursuant to the
terms of this Agreement.
(i) No Accounting. No persons or estate of such person who has ceased
acting as Trustee shall be required to make an accounting to the
Trustees or Shareholders unless required by the 1940 Act or justified
by circumstances calling for removal for cause.
SECTION 3.2 POWERS. The Trustees may, in accordance with this Trust Agreement,
carry on the business of the Trust and shall have all the powers necessary to
conduct such business to carry out the purpose of the Trust. The Trustees'
powers include, but are not limited to, the power to;
adopt By-Laws consistent with the Trust Agreement which specify
procedures for conducting the daily business affairs of the Trust,
including the power to amend and repeal the By-Laws to the extent that
the By-Laws do not reserve that right to the Shareholders;
establish Sub-Trusts, each such Sub-Trust to operate as a separate and
distinct investment medium and with separately defined investment
objectives and policies;
establish, from time to time in accordance with the provisions of
Section 4.1 hereof, classes of Shares of any Series or Sub-Trust or
divide the Shares of any Series or Sub-Trust into classes;
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;
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;
employ one or more Advisers, Administrators, Depositories and
Custodians and may authorize any Depository or Custodian to employ sub
custodians or agents and to deposit all or any part of such assets
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in a system or systems for the central handling of securities and debt
instruments, retain transfer, dividend, accounting or Shareholder
servicing agents or any of the foregoing, provide for the distribution
of shares by the Trust through one or more distributors, principal
underwriters or otherwise; and
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
authority to act in the name of the Trust and of the Trustees, to sign
documents and to act as attorney-in-fact for the Trustees.
Without limiting the foregoing, the Trustees, on behalf of the Trust, shall, in
accordance with the 1940 Act or other applicable law, have the authority:
(a) Investments. To invest cash and other property, and to hold cash or
other property uninvested without regard to the custom of investments
by trustees;
(b) Disposition of Assets. To sell, exchange, lend, pledge, mortgage,
write options on and lease any or all of the assets of the Trust;
(c) Ownership Powers. To vote, or give assent, or exercise any rights of
ownership, with respect to stock or other securities, debt instruments
or property; and to execute and deliver proxies or powers of attorney
to such person or persons as the Trustees shall deem proper;
(d) Subscription. To exercise powers and rights of subscription which
arise out of ownership of securities or debt instruments;
(e) Form of Holding. To hold any assets of the Trust in the name of the
Trust, Trustees, Sub-Trust, nominee or otherwise;
(f) Reorganization, Etc. To consent to or participate in any plan for the
reorganization or consolidation of any corporation or issuer for which
a security or debt instrument is or was held in the Trust;
(g) Voting Trusts, Etc. To join with other holders of any securities or
debt instruments in acting through a committee, depository, voting
trustee or otherwise, and in that connection to deposit any security
or debt instrument with, or transfer any security or debt instrument
to the other holders or a representative thereof and to delegate to
them such power and authority with regard to any security or debt
instrument (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to pay such portion of the expenses
and compensation of such representative as the Trustees shall deem
proper;
(h) Compromise. To compromise or arbitrate claims (or any matter in
controversy) in favor of or against the Trust or any Sub-Trust;
(i) Associations, 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 the assets of
the Trust to secure the obligations arising out of such borrowing;
(k) Guarantees, Etc. To make contracts of guaranty, endorse or guarantee
the payment of any obligations of any person; and to mortgage and
pledge any Trust property 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 Trust's business including, without limitation, liability
insurance for the benefit of the Shareholders, Trustees, officers,
employees, agents, consultants,
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investment advisors, managers, administrators, distributors, principal
underwriters or independent contractors (or any person connected
therewith);
(m) Vote Required, Place and Type of Meeting. Except as otherwise provided
by the 1940 Act or other applicable law, this Agreement or the
By-Laws, any action to be taken by the Trustees on behalf of the Trust
or any Sub-Trust 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 (or such larger or different number as may be
required by the 1940 Act or other applicable law);
(n) Distribution Plans. To adopt on behalf of the Trust or any Sub-Trust
with respect to any class thereof a plan of distribution and related
agreements thereto pursuant to the terms of Rule 12b-1 and/or other
provisions of the 1940 Act and to make payments from the assets of the
Trust or the relevant Sub-Trust or Sub-Trusts pursuant to said Rule
12b-1 Plan.
SECTION 3.3 CERTAIN CONTRACTS. The Trustees may from time to time enter into
contracts with any type of organization or individual ("Contracting Party") to
provide services for the Trust. Any delegation of powers by the Trustees shall
not limit the generality of their powers and authority.
The fact that:
(j) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party, or of or for any parent or affiliate of any
contracting party or that the contracting party or any parent or
affiliate thereof is a Shareholder or has an interest in the Trust or
any Sub-Trust, or that
(ii) any Contracting Party may have a contract providing for the rendering
of any similar services to one or more other corporations, trusts,
associations, partnerships, limited partnerships or other
organizations, or have other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust or any
Sub-Trust and/or the Trustees or disqualify any Shareholder, Trustee or officer
of the Trust from voting upon or executing the same or create any liability or
accountability to the Trust, any Sub-Trust or its Shareholders, provided that in
the case of any relationship or interest referred to in the preceding clause (i)
on the part of any Trustee or officer of the Trust either (x) the material facts
as to such relationship or interest have been disclosed to or are known by the
Trustees not having any such relationship or interest and the contract involved
is approved in good faith by a majority of such Trustees not having any such
relationship or interest (even though such unrelated or disinterested Trustees
are less than a quorum of all of the Trustees), (y) the material facts as to
such relationship or interest and as to the contract have been disclosed to or
are known by the Shareholders entitled to vote thereon and the contract involved
is specifically approved in good faith by vote of the shareholders, or (z) the
specific contract involved is fair to the Trust as of the time it is authorized,
approved or ratified by the Trustees or by the Shareholders.
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SECTION 3.4 TRUST EXPENSES. The Trustees are authorized to incur on behalf of
the Trust expenses which they deem necessary and proper to carry out the
business of the Trust. As an element of expenses, the Trustees are authorized to
determine, establish, and receive reasonable compensation for their services as
Trustees. The Trustees are authorized to pay all expenses from either principal
or income and may allocate expenses among the Sub-Trusts and/or one or more
classes of Shares thereof as the Trustees, in their discretion, deem necessary
and appropriate.
SECTION 3.5 OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the Trust assets
shall at all times be considered as vested in the Trustees.
ARTICLE IV.
SHARES/SUB-TRUSTS
SECTION 4.1 DESCRIPTION OF SHARES. The beneficial interest in the Trust shall
consist of one class of no-par Shares; however, the Trustees have authority to
divide the class of Shares into Series of Shares each of which Series of Shares
shall be a separate and distinct Sub-Trust of the Trust, as they deem necessary
or desirable. Each Sub-Trust of Shares established will be deemed to be a
separate Trust under Massachusetts General Laws Chapter 182. The Trustees shall
have exclusive powers without Shareholder approval to establish any Sub-Trust
and to determine the relative rights and preferences between the Shares of the
separate Sub-Trusts as to right of redemption and the price, terms and manner of
redemption, special and relative rights as to dividends and other distributions
and on liquidation, sinking or purchase fund provisions, conversion rights, and
conditions under which the several Sub-Trusts shall have separate voting rights
or no voting rights.
In addition, the Trustees shall have exclusive power, without the requirement of
Shareholder approval, to issue classes of Shares of any Sub-Trust or divide the
Shares of any Sub-Trust into classes, each class having such difference
dividend, liquidation, voting and other rights as the Trustees may determine,
and may establish and designate the specific classes of Shares of each
Sub-Trust. The fact that a Sub-Trust shall have initially been established and
designated without any specific establishment or designation or classes (i.e.,
that all Shares of such Sub-Trust are initially of a single class), or that a
Sub-Trust shall have more than one established and designated class, shall not
limit the authority of the Trustees to establish and designate separate classes,
or one or more further classes, of said Sub-Trust without approval of the
holders of the initial class thereof, or previously established and designated
class or classes thereof, provided that the establishment and designation of
such further separate classes would not adversely affect the rights of the
holders of the initial or previously established and designated class or
classes.
The number of authorized Shares and the number of Shares of each Sub-Trust or
class thereof that may be issued is unlimited, and the Trustees may issue Shares
of any Sub-Trust or class thereof for such consideration and on such terms as
they may determine (or for no consideration if pursuant to a Share dividend or
split-up), all without action or approval of the Shareholders. All Shares when
so issued on the terms determined by the Trustees shall be fully paid and
non-assessable (but may be subject to mandatory contribution back to the Trust
as provided in subsection
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(h) of Section 4.4). The Trustees may classify or reclassify any unissued Shares
or any Shares previously issued and reacquired of any Sub-Trust or class thereof
into one or more Sub-Trusts or classes thereof that may be established and
designated from time to time. The Trustees may hold as treasury Shares, reissue
for such consideration and on such terms as they may determine, or cancel, at
their discretion from time to time, any Shares of any Sub-Trust or class thereof
reacquired by the Trust.
The Trustees may, at any time, abolish a Sub-Trust if no Shares of that
Sub-Trust are outstanding. The Trustees may from time to time close the transfer
books or establish record dates and times for the purposes of determining the
holders of Shares entitled to be treated as such, to the extent provided or
referred to in Section 5.3.
The establishment and designation of any Sub-Trust or of any class of Shares of
any Sub-Trust in addition to those established and designated in Section 4.2
shall be effective upon the vote of a majority of the then Trustees setting
forth such establishment and designation and the relative rights and preferences
of the Shares of such Sub-Trust or class, or as otherwise provided in such vote.
At any time that there are no Shares outstanding of any particular Sub-Trust or
class previously established and designated the Trustees may by vote of a
majority of their number (or by an instrument executed by an officer of the
Trust pursuant to the vote of a majority of the Trustees) abolish that Sub-Trust
or class and the establishment and designation thereof. Each vote referred to in
this paragraph shall be implemented by preparation and filing of an amendment to
this Agreement.
Any Trustee, officer or other agent of the Trust, and any organization in which
any such person is interested may acquire, own, hold and dispose of Shares of
any Sub-Trust (including any classes thereof) of the Trust to the same extent as
if such person were not a Trustee, officer or other agent of the Trust; and the
Trust may issue and sell or cause to be issued and sold and may purchase Shares
of any Sub-Trust (including any classes thereof from any such person or any such
organization subject only to the general limitations, restrictions or other
provisions applicable to the sale or purchase of Shares of such Sub-Trust
(including any classes thereof) generally.
SECTION 4.2 ESTABLISHMENT AND DESIGNATION OF SUB-TRUSTS. Without limiting the
Trustees' authority to establish further Sub-Trusts pursuant to Section 4.1, the
Trustees hereby establish the following Sub-Trusts:
Senior U. S. Government Total Return Bond Fund
Senior Corporate Bond Fund
Senior Balanced Growth Fund
Senior Large Cap Equity Fund
Senior Money Market Fund
SECTION 4.3 RIGHTS AND PREFERENCES OF SUB-TRUSTS. Unless otherwise specified by
the Trustees, the Sub-Trusts established above and all future Sub-Trusts or any
classes thereof have the following rights and preferences:
(a) Assets Belonging to Sub-Trusts. All consideration received by the
Trust for the issue or sale of Shares of a particular Sub-Trust or any
classes thereof, all assets in which the consideration is invested,
and proceeds from the sale, exchange or liquidation thereof, all
income earnings, profits and proceeds from those assets and any items
allocated to the Sub-Trust or class thereof by the Trustees shall be
held in trust by the Trustees for the benefit of the Shareholders of
that Sub-Trust or class thereof shall irrevocably belong to that
Sub-Trust (and be allocable to any classes thereof) and shall be
recorded on
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the books of account of the Trust as assets belonging to that
Sub-Trust. The Trustees may, in a manner they deem fair and equitable,
allocate among the Sub-Trusts any items which are not readily
identifiable to any one particular Sub-Trust (and allocable to any
classes thereof). Each allocation shall be binding upon the
Shareholders of the Trust.
(b) Liabilities Belonging to Sub-Trusts. The liabilities belonging to a
Sub-Trust shall include all liabilities associated with the assets of
that particular Sub-Trust, all expenses and charges attributable to
that Sub-Trust and any general liabilities which are not readily
identifiable and which the Trustees may allocate in a manner they deem
fair and equitable to that Sub-Trust. In addition, the liabilities in
respect of a particular class of Shares of a particular Sub-Trust and
all expenses, costs, charges and reserves belonging to that class of
Shares, and any general liabilities, expenses, costs, charges or
reserves of that particular Sub-Trust which are not readily
identifiable as belonging to any particular class of Shares of that
Sub-Trust shall be allocated and charged by the Trustees to and among
any one or more of the classes of Shares of that Sub-Trust established
and designated from time to time in such manner and on such basis as
the Trustees in their sole discretion deem fair and equitable. Each
allocation shall be binding upon the Shareholders of the Trust. Only
the assets of a particular Sub-Trust (including any classes thereof)
may be used to satisfy a creditor of that Sub-Trust.
(c) Determination of Treatment as Income and/or Capital. Except as
otherwise provided by the 1940 Act, the Trustees shall have full
discretion to determine which items shall be treated as income and
which items as capital; and each such determination and allocation
shall be conclusive and binding upon the Shareholders.
(d) Dividends. Dividends and distributions on Shares of a particular
Sub-Trust or any class thereof may be paid with such frequency as the
Trustees may determine, which may be daily or otherwise pursuant to a
standing resolution or resolutions adopted only once or with such
frequency as the Trustees may determine, to the holders of Shares of
that Sub-Trust or class, from such of the income and capital gains,
accrued or realized, from the assets belonging to that Sub-Trust, or
in the case of a class, belonging to that Sub-Trust and allocable to
that class, as the Trustees may determine, after providing for actual
and accrued liabilities belonging to that Sub-Trust or class. All
dividends and distributions on Shares of a particular Sub-Trust or
class thereof shall be distributed pro rata to the holders of Shares
of that Sub-Trust or class in proportion to the number of Shares of
that Sub-Trust held by such holders at the date and time of record
established for the payment of such dividends or distributions, except
that in connection with any dividend or distribution program or
procedure the Trustees may determine that no dividend or distribution
shall be payable on Shares as to which the Shareholder's purchase
order and/or payment have not been received by the time or times
established by the Trustees under such program or procedure. Such
dividends and distributions may be made in cash or Shares of that
Sub-Trust or class or a combination thereof as determined by the
Trustees or pursuant to any program that the Trustees may have in
effect at the time for the election by each Shareholder of the mode of
the making of such dividend or distribution to that Shareholder. Any
such dividend or distribution paid in Shares will be paid at the net
asset value thereof as determined in accordance with the subsection
(i) of Section 4.3.
The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall be
treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Shareholders.
(e) Liquidation. A Sub-Trust or any class there may be liquidated after
such liquidation has been authorized by a majority vote of the
Trustees then in office and approved by a majority of the outstanding
voting Shares of that Sub-Trust or in the case of a class, belonging
to that Sub-Trust and allocable to that class, over the liabilities
belonging to that Sub-Trust or class, as defined in the 1940 Act. The
Shareholders of that particular Sub-Trust or class thereof shall
receive the excess of assets in the Sub-Trust or class thereof over
the liabilities in the Sub-Trust on a pro rata basis.
(f) Voting. On each matter submitted to a vote of the Shareholders, each
holder of a Share of each Sub-Trust or any class thereof shall be
entitled to one vote for each whole Share and for a proportionate
fractional vote for each fractional Share outstanding in his name on
the books of the Trust and all shares
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of each Sub-Trust or class thereof shall vote as a separate class,
except as to voting for Trustees and as otherwise required by the 1940
Act. As to any matter which does not affect the interest of a
particular Sub-Trust or class thereof, only the holders of Shares of
one or more of the affected Sub-Trusts or classes thereof shall be
entitled to vote.
(g) Redemption by Shareholder. Each Shareholder shall have the right to
tender all or part of his shares of the Sub-Trust or any class thereof
for redemption at such times as the By-Laws permit, but at least once
weekly, with the redemption price equal to the net asset value per
Share as defined in this section. The Trust shall make payment in cash
unless in the Trustee's judgment conditions exist which make payment
in cash undesirable, in which case the Trust may make payment wholly
or partly in assets belonging to the Sub-Trust or class thereof. The
Trust may postpone payment of the redemption price and suspend the
Shareholder's right of redemption in appropriate circumstances, to the
extent permissible under the 1940 Act.
(h) Redemption by Trust. The Trustees shall have the right to redeem the
Shares of the Trust and Sub-Trusts or classes thereof at the same
redemption price as if the Shareholder were redeeming the Shares. A
redemption by the Trustees shall occur if: (1) the Trustees determine
in their sole discretion that failure to redeem the Shares would
result in material adverse consequences to the Shareholders of any of
the Sub-Trusts; or (2) the failure of a Shareholder to maintain a
minimum amount as set forth in the current prospectus of the Trust
(Sub-Trust). If the Trustees exercise their right of redemption, the
Shareholder shall have no further right except to receive payment of
the redemption price.
(i) Net Asset Value. The net asset value per Share of any Sub-Trust shall
be (a) in the case of a Sub-Trust whose Shares are not divided into
classes, the quotient obtained by dividing the value of the net assets
of that Sub-Trust (being the value of the assets belonging to that
Sub-Trust less the liabilities belonging to that Sub-Trust) by the
total number of Shares of that Sub-Trust outstanding, and (b) in the
case of a class of Shares of a Sub-Trust whose Shares are divided into
classes, the quotient obtained by dividing the value of the assets of
that Sub-Trust allocable to such class (less the liabilities belonging
to such class) by the total number of Shares of such class
outstanding. The net asset value shall be computed in accordance with
the 1940 Act and regulations thereunder. In calculating the net asset
value, methods and procedures established by the Trustees shall be
used.
The Trustees may determine to maintain the net asset value per Share
of any Sub-Trust at a designated constant dollar amount and in
connection therewith may adopt procedures not inconsistent with the
1940 Act for the continuing declarations of income attributable to
that Sub-Trust as dividends payable in additional Shares of that
Sub-Trust at the designated constant dollar amount and for the
handling of any losses attributable to that Sub-Trust. Such procedures
may provide that in the event of any loss each Shareholder shall be
deemed to have contributed to the capital of the Trust attributable to
that Sub-Trust his pro rata portion of the total number of Shares
required to be canceled in order to permit the net asset value per
Share of that Sub-Trust to be maintained, after reflecting such loss,
at the designated constant dollar amount. Each Shareholder of the
Trust shall be deemed to have agreed, by his investment in any
Sub-Trust with respect to which the Trustees shall have adopted any
such procedure, to make the contribution referred to in the preceding
sentence in the event of any such loss.
(j) Transfer. All Shares of each particular Sub-Trust or class thereof
shall be transferable, but transfers of Shares of a particular
Sub-Trust or class thereof will be recorded on the Share transfer
records of the Trust applicable to that Sub-Trust or class only at
such times as Shareholders shall have the right to require the Trust
to redeem Shares of that Sub-Trust or class and at such other times as
may be permitted by the Trustees.
(k) Equality. Except as provided herein or in the instrument designating
and establishing any class of Shares or any Sub-Trust, all Shares of
each particular Sub-Trust or class thereof shall represent an equal
proportionate interest in the assets belonging to that Sub-Trust, or
in the case of a class, belonging to that Sub-Trust and allocable to
that class (subject to the liabilities belonging to that Sub-Trust or
class), and each Share of any particular Sub-Trust or class shall be
equal to each other Share of that Sub-Trust or class; but the
provisions of this sentence shall not restrict any distinctions
permissible
Master Trust Agreement Page 11 of 20
under subsection (d) of this Section 4.3 that may exist with respect
to dividends and distributions on Shares of the same Sub-Trust or
class. The Trustees may from time to time divide or combine the Shares
of any particular Sub-Trust or class into a greater or lesser number
of Shares of that Sub-Trust or class without thereby changing the
proportionate beneficial interest in the assets of that Sub-Trust or
class or in any way affecting the rights of Shares of any other
Sub-Trust or class.
(l) Fractions. A fractional Share of a Sub-Trust or class proportionately
carries all the rights and obligations of a whole Share of the
Sub-Trust or class.
(m) Conversion Rights. The Trustees shall have authority to establish
procedures pursuant to which a Shareholder of one Sub-Trust or class
thereof may exchange shares of that Sub-Trust for shares of another
Sub-Trust or class thereof.
(n) Class Differences. The relative rights and preferences of the classes
of any Sub-Trust may differ in such other respects as the Trustees may
determine to be appropriate in their sole discretion, provided that
such differences are set forth in the resolutions adopted by the
Trustees or the instrument establishing and designating such classes
and executed by a majority of the Trustees (or by an instrument
executed by an officer of the Trust pursuant to a vote of a majority
of the Trustees).
SECTION 4.4 OWNERSHIP OF SHARES. The ownership of Shares shall be recorded on
the books of the Trust or of a transfer or similar agent for the Trust, which
books shall be maintained separately for the Shares of each Sub-Trust and each
class thereof. No certificates certifying the ownership of Shares need be issued
except as the Trustees determine. The Trustees may establish such rules as they
consider appropriate for the issuance of Share certificates, use of facsimile
signatures, transfer of Shares and similar matters. The record books of the
Trust shall be conclusive as to who are the Shareholders and as to the number of
Shares of each Sub-Trust and class thereof held from time to time by each such
Shareholder.
SECTION 4.5 INVESTMENTS IN THE TRUST. The Trustees shall have authority to
establish procedures and policies with respect to acceptance or rejection of
investments in the Trust and Sub-Trusts and to authorize other persons to accept
and reject orders for the purchase of Shares in accordance therewith.
SECTION 4.6 NO PREEMPTIVE RIGHTS. The Shares of the Trust or Sub-Trusts have no
preemptive rights.
SECTION 4.7 STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY. 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 Trust or any Sub-Trust thereof 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
Master Trust Agreement Page 12 of 20
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 V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 5.1 VOTING POWERS. The Shareholders shall only vote in the following
instances:
(i) election or removal of Trustees as provided herein;
(ii) approval of a contract for which the 1940 Act requires Shareholder
approval;
(iii) termination or reorganization of the Trust or any Sub-Trust if
required by Section 7.2;
(iv) amendment of the Trust Agreement if required by Section 7.3;
(v) determination of whether a derivative or class action suit should be
brought or pursued on behalf of the Trust or Sub-Trust or class
thereof as would the stockholders of a Massachusetts business
corporation, provided that the Shareholders of one Sub-Trust or class
thereof may not vote on an action on behalf of another Sub-Trust or
class thereof or one of its Shareholders; and
(vi) such additional matters relating to the Trust as may be required by
the 1940 Act, this Agreement, 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 Trustee elections.
Shares may be voted by proxy or in person. Shares held in the name of two or
more persons may be voted by proxy executed by one of the named persons unless
the Trust is notified to the contrary by written instructions, prior to the
execution of the proxy. A proxy purporting to be executed by or on behalf of a
Shareholder shall be presumed valid unless challenged at or prior to its
exercise and the burden of proving invalidity shall be on the challenger.
Until Shares are issued the Trustees may take any action required by law, this
Agreement or the By-Laws to be taken by Shareholders.
Proxies may be given orally or in writing or pursuant to any computerized or
mechanical data gathering process specifically approved by the Trustees.
SECTION 5.2 MEETINGS AND NOTICE. No annual or regular meeting of Shareholders is
required; however, the Trustees may call meetings to take action on matters
which require Shareholder vote and for other matters which the Trustees
determine Shareholder vote is necessary or desirable.
The Trustees shall give Shareholders written notice of any Shareholder meeting
by mailing such notice, postage prepaid, at least seven days before the meeting
date to each Shareholder at the Shareholder's address as it appears on the
records of the Trust. The notice shall state the purpose of the meeting.
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Upon written request of Shareholders holding 10% or more of the then outstanding
Shares, the Trustees shall call a meeting to vote upon the removal of a Trustee.
If the Trustees do not call a Shareholder meeting within 30 days after receipt
of the written request, Shareholders holding 10% or more of the then outstanding
Shares may call a meeting for that purpose giving notice and following the
procedures governing Trustee-called meetings, set forth in this Agreement.
No notice is required for adjourned sessions which are held within a reasonable
time after the original meeting.
SECTION 5.3 RECORD DATES. For the purpose of determining Shareholders entitled
to vote or act at a meeting, to participate in a dividend or distribution, or
for the purpose of any other action, the Trustees may close the transfer books
for a period not exceeding 30 days (except at or in connection with the
termination of the Trust) as the Trustees may determine. Alternatively, 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 Shareholders or other action as the
date and time of record for the determination of Shareholders entitled to vote
at such meeting or to be treated as Shareholders of record for purposes of such
other action, and any Shareholder who was a Shareholder at the date and time so
fixed shall be entitled to vote at such meeting or any adjournment thereof or to
be treated as a Shareholder of record for purposes of such other action, even
though he has since that date and time disposed of his Shares; and, no person
becoming a Shareholder after that date and time shall be so entitled to vote at
such meeting or any adjournment thereof or to be treated as a Shareholder of
record for purposes of such other action.
SECTION 5.4 QUORUM AND REQUIRED VOTE. A quorum to conduct business shall consist
of a majority of the Shares entitled to vote at a Shareholder's meeting. A
lesser number is sufficient for adjournments.
Unless otherwise required by applicable law or this Agreement a majority of the
voted Shares at a meeting at which a quorum is present shall be sufficient to
transact business, and Trustees shall be elected by a plurality.
SECTION 5.5 ACTION BY WRITTEN CONSENT. Unless otherwise required by applicable
law, Shareholders may take action without a meeting if a majority of the
Shareholders entitled to vote on the action (or such greater percentage as may
be required by applicable law for such action) consent in writing to such action
and their consents are filed with the records of the Shareholder meetings.
Written Consents shall be treated as votes taken at a Shareholder meeting.
SECTION 5.6 INSPECTION OF RECORDS. Shareholders may inspect the Trust's records
to the same extent permitted by Massachusetts Business Corporation Law to the
stockholders of a Massachusetts business corporation.
SECTION 5.7 ADDITIONAL PROVISIONS. The By-Laws may include further provisions
for Shareholders' votes and meetings and related matters not inconsistent with
the provisions hereof.
SECTION 5.8 SHAREHOLDER COMMUNICATIONS. Whenever ten or more Shareholders of
record have been such for a least six months preceding the date of application,
and who hold in the aggregate either Shares having a net asset value of at least
$25,000 or at least 1% of the outstanding Shares, whichever is less, shall apply
to the Trustees in
Master Trust Agreement Page 14 of 20
writing, stating that they wish to communicate with other Shareholders with a
view to obtaining signatures to a request for a Shareholder 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 Shareholders as recorded on the books of the Trust or Sub-Trust, as
applicable; or (2) inform such applicants as to the approximate number of
Shareholders 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 paragraph (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 Shareholders 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 such violation of applicable law, and specifying the
basis of such opinion. The Trustees shall thereafter comply with the
requirements of the 1940 Act.
ARTICLE VI.
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 6.1 TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE, NOTICE. All
persons extending credit to, contracting with or having any claim against the
Trust shall look only to the assets of the Sub-Trust with which such person
dealt for payment under such credit, contract or claim; and neither the
Shareholders of any Sub-Trust nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, nor any other Sub-Trust
shall be personally liable therefor. Every note, bond, contract, instrument,
certificate or undertaking and every other act or thing whatsoever executed or
done by or on behalf of the Trust, any Sub-Trust or the Trustees or any of them
in connection with the Trust shall be conclusively deemed to have been executed
or done only by or for the Trust (or the Sub-Trust) or the Trustees and not
personally. Nothing in this Agreement shall protect any Trustee or officer
against any liability to the Trust or the Shareholders 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.
SECTION 6.2 NOTICE FOR CONTRACTS. Every contract, instrument, certificate or
undertaking made or issued by the Trustees or by any officers or officer shall
give notice (a) that this Agreement is on file with the Secretary of the
Commonwealth of Massachusetts, (b) that the document was executed or made on
behalf of the Trust or by them as Trustees or as officers and not by them
individually, and (c) that the obligations of such instrument are not binding
upon any of them or the Shareholders individually, but are binding only upon the
assets and property of the Trust, or the particular Sub-Trust in question, as
the case may be. Omission of such notice shall not operate to bind any Trustee,
officer or Shareholder individually.
Master Trust Agreement Page 15 of 20
SECTION 6.3 TRUSTEE'S GOOD FAITH ACTION; EXPERT ADVICE; NO BOND. The exercise by
the Trustees of their powers and discretion hereunder shall be binding upon
everyone interested. A Trustee shall be liable for his 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, 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, Shareholder servicing or accounting agent of the Trust, nor shall
any Trustee be responsible for the act or omission of any other Trustee; (b) the
Trustees may take advice of counsel or other experts with respect to the meaning
and operation of this Agreement 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
other security for the performance of their duties.
SECTION 6.4 INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder (or former
Shareholder) of any Sub-Trust of the Trust shall be charged or held to be
personally liable for any obligation or liability of the Trust solely by reason
of being or having been a Shareholder and not because of such Shareholder's acts
or omissions or for some other reason, said Sub-Trust (upon proper and timely
request by the Shareholder) shall assume the defense against such charge and
satisfy any judgment thereon, and the Shareholder or former Shareholder (or his
heirs, executors, administrators or other legal representatives or in the case
of a corporation or other entity, its corporate or other general successor)
shall be entitled out of the assets of said Sub-Trust estate to be held harmless
from and indemnified against all loss and expense arising from such liability.
SECTION 6.5 INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC. The Trust shall
indemnify (from the assets of the Sub-Trust or class thereof or Sub-Trusts or
classes thereof in question) 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, 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 with respect to any
matter as to which it has been determined in one of the manners described below,
that such Covered Person (i) did not act in good faith in the reasonable belief
that such Covered Person's action was in or not opposed to the best interests of
the Trust or (ii) had acted with willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office (either and both of the conduct described in (i) and
(ii) being referred to hereafter as "Disabling Conduct"). A determination that
the Covered Person is not entitled to indemnification due to Disabling Conduct
may be made by (i) a final decision on the merits by a court or other
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body before whom the proceeding was brought that the person to be indemnified
was not liable by reason of Disabling Conduct, (ii) dismissal of a court action
or an administrative proceeding against a Covered Person for insufficiency of
evidence of Disabling Conduct, or (iii) a reasonable determination, based upon a
review of the facts, that the indemnitee was not liable by reason of Disabling
Conduct by (a) a vote of a majority of a quorum of Trustees who are neither
"interested persons" of the Trust as defined in section 2(a)(19) of the 1940 Act
nor parties to the proceeding, or (b) an independent legal counsel in a written
opinion. Expenses, including accountants' and counsel fees so incurred by any
such Covered Person (but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), may be paid from time to time in advance
of the final disposition of any such action, suit or proceeding, provided that
the Covered Person shall have undertaken to repay the amounts so paid to the
Sub-Trust in question if it is ultimately determined that indemnification of
such expenses is not authorized under this Article VI and (i) the Covered Person
shall have provided security for such undertaking, (ii) the Trust shall be
insured against losses arising by reason of any lawful advances, or (iii) a
majority of a quorum of the disinterested Trustees who are not a party to the
proceeding, or an independent legal counsel in a written opinion, shall have
determined, based on a review of readily available facts (as opposed to a full
trial-type inquiry), that there is reason to believe the Covered Party
ultimately will be found entitled to indemnification.
SECTION 6.6 COMPROMISE PAYMENT. Any compromise settlement shall be indemnified
only if approved: (a) by a majority of the disinterested Trustees not a party to
the proceeding; or (b) by a written opinion of an independent legal counsel. If
payment has been made pursuant to (a) or (b) and the recipient is subsequently
found to have engaged in bad faith, willful misfeasance, gross negligence or
reckless disregard of duty, the Trust may recover such payment.
SECTION 6.7 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 covered person may be entitled. The indemnification shall inure to
the benefit of such person's heirs, executors and administrators. 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 6.8 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. This Trust shall continue for an
unlimited period. The Trust may be terminated at any time by a majority vote of
the Trustees then in office and approved by a majority vote of the outstanding
voting shares as defined in 1940 Act, Shares of each Sub-Trust each class
thereof voting separately by Sub-Trust or class thereof.
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No modification of any Sub-Trust or class shall terminate the Trust.
In the event of termination, the Trustees shall pay all due and anticipated
expenses, and then liquidate the assets in a manner the Trustees deem
appropriate and distribute the proceeds according to the provisions of this
Agreement.
SECTION 7.2 REORGANIZATION. The Trustees may sell, convey, merge and transfer
the assets of the Trust, or the assets belonging to any one or more Sub-Trusts,
to another trust, partnership, association or corporation organized under the
laws of any state of the United States, or to the Trust to be held as assets
belonging to another Sub-Trust of the Trust, in exchange for cash, shares or
other securities (including, in the case of a transfer to another Sub-Trust of
the Trust, Shares of such other Sub-Trust) with such transfer either (1) being
made subject to, or with the assumption by the transferee of, the liabilities
belonging to each Sub-Trust the assets of which are so transferred, or (2) not
being made subject to, or not with the assumption of, such liabilities;
provided, however, that no assets belonging to any particular Sub-Trust shall be
so transferred unless the terms of such transfer shall have first been approved
at a meeting called for the purpose by the affirmative vote of the holders of a
majority of the outstanding voting Shares, as defined in the 1940 Act, of that
Sub-Trust. 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 Sub-Trusts and classes
the assets belonging to which have been so transferred) among the Shareholders
of the Sub-Trust the assets belonging to which have been so transferred; and if
all of the assets of the Trust have been so transferred, the Trust shall be
terminated.
The Trust, or any one or more Sub-Trusts, may, either as the successor,
survivor, or non-survivor, (1) consolidate with one or more other trusts,
partnerships, associations or corporations organized under the laws of the
Commonwealth of Massachusetts or any other state of the United States, to form a
new consolidated trust, partnership, association or corporation under the laws
of which any one of the constituent entities is organized, or (2) merge into one
or more other trusts, partnerships, associations or corporations organized under
the laws of the Commonwealth of Massachusetts or any other state of the United
States, or have one or more such trusts, partnerships, associations or
corporations merged into it, any such consolidation or merger to be upon such
terms and conditions as are specified in an agreement and plan of reorganization
entered into by the Trust, or one or more Sub-Trusts as the case may be, in
connection therewith. The terms "merge" or "merger" as used herein shall also
include the purchase or acquisition of any assets of any other trust,
partnership, association or corporation which is an investment company organized
under the laws of the Commonwealth of Massachusetts or any other state of the
United States. Any such consolidation or merger shall require the affirmative
vote of the holders of a majority of the outstanding voting Shares, as defined
in the 1940 Act, of each Sub-Trust affected thereby.
SECTION 7.3 AMENDMENTS. All rights granted to the Shareholders under this
Agreement are granted subject to the reservation of the right to amend this
Agreement as herein provided, except that no amendment shall repeal the
limitations on personal liability of any Shareholder or Trustee or repeal the
prohibition of assessment upon the Shareholders without the express consent of
each Shareholder or Trustee involved. Subject to the foregoing, the provisions
of this Agreement (whether or not related to the rights of Shareholders) may be
amended at any time, so long as such amendment does not adversely affect the
rights of any Shareholder with respect to which such amendment is or purports to
be applicable and so long as such amendment is not in contravention of
applicable
Master Trust Agreement Page 18 of 20
law, including the 1940 Act, by an instrument in writing signed by a majority of
the then Trustees (or by an officer of the Trust pursuant to the vote of a
majority of such Trustees). Any amendment to this Agreement that adversely
affects the rights of Shareholders may be adopted at any time by an instrument
in writing signed by a majority of the then Trustees (or by an officer of the
Trust pursuant to a vote of a majority of such Trustees) when authorized to do
so by the vote in accordance with subsection (e) of Section 4.2 of Shareholders
holding a majority of the Shares entitled to vote. Subject to the foregoing, any
such amendment shall be effective as provided in the instrument containing the
terms of such amendment or, if there is no provision therein with respect to
effectiveness, upon the execution of such instrument and of a certificate (which
may be a part of such instrument) executed by a trustee or officer of the Trust
to the effect that such amendment has been duly adopted.
SECTION 7.4 FILING OF COPIES; REFERENCES; HEADINGS. This Agreement and all
amendments shall be maintained in Trust offices for Shareholder inspection.
A copy of this Agreement and all amendments shall be filed with the appropriate
governmental offices as required, including the Secretary of the Commonwealth of
Massachusetts and the Boston City Clerk. 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.
As used in this Agreement the masculine gender shall include the feminine and
neuter genders. Headings are used for reference only and shall not affect the
meaning or construction of this Agreement. 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.
Any reference to this document shall include all amendments.
SECTION 7.5 APPLICABLE LAW. This Agreement 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 Shareholders 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
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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.
SECTION 7.6 RESIDENT AGENT. Xx. Xxxxxx X. Xxxxxx, 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, for the purposes of complying with the
laws of the Commonwealth of Massachusetts is hereby appointed as resident agent
for the Trust within the Commonwealth of Massachusetts; and hereby is designated
as its attorney in the Commonwealth of Massachusetts upon whom may be served any
notice, process or pleading in any action or proceeding against the Trust. and
the undersigned does hereby consent that any such action or proceeding against
the Trust may be commenced in any court of competent jurisdiction and proper
venue within the State so designated by services of process upon said resident
agent with the same effect as if the Trust had been served lawfully with
process. It is requested that a copy of any notice, process or pleadings served
be mailed to the attention of Xxxxxx X. Xxxxx, Senior Funds, 00000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxx 00000.
IN WITNESS WHEREOF, the undersigned have hereunto set their hand and seals for
themselves and their assigns, as of the date and year first above written.
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Xxxxxx X. Xxxxx, Trustee
STATE OF Texas )
) ss:
COUNTY OF Xxxxxx )
Before me, a Notary Public in and for said county and state, personally appeared
the above named
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who acknowledged that he did sign the foregoing instrument and that the same is
his free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on
this day of , .
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Notary Public
My Commission Expires:
Master Trust Agreement Page 20 of 20
