Exhibit 1
Effective as of
March 31, 1995
AGREEMENT AND DECLARATION OF TRUST
of
The Xxxxxxx Funds
a Delaware Business Trust
Principal Place of Business:
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
TABLE OF CONTENTS
PAGE
ARTICLE I.................................................. 1
Name and Definitions.................................. 1
Section 1. Name................................. 1
Section 2. Definitions.......................... 1
(a) Trust.................................. 1
(b) Trust Property......................... 1
(c) Trustees............................... 1
(d) Shares................................. 1
(e) Shareholder............................ 1
(f) Person................................. 2
(g) 1940 Act............................... 2
(h) Commission and Principal Underwriter... 2
(I) Declaration of Trust................... 2
(j) By-Laws................................ 2
(k) Interested Person...................... 2
(l) Investment Manager..................... 2
(m) Series................................. 2
ARTICLE II................................................. 2
Purpose of Trust...................................... 2
ARTICLE III................................................ 2
Shares................................................ 2
Section 1. Division of Beneficial Interest...... 2
Section 2. Ownership of Shares.................. 3
Section 3. Investments in the Trust............. 3
Section 4. Status of Shares and Limitation
of Personal Liability.......................... 3
Section 5. Power of Board of Trustees
to Change Provisions Relating to Shares........ 4
Section 6. Establishment and Designation
of Shares...................................... 4
(a) Assets Held with Respect to a
Particular Series.................... 4
(b) Liabilities Held with Respect to a
Particular Series.................... 5
(c) Dividends, Distributions, Redemptions,
and Repurchases...................... 5
(d) Voting................................. 5
(e) Equality............................... 6
(f) Fractions.............................. 6
(g) Exchange Privilege..................... 6
(h) Combination of Series.................. 6
(i) Elimination of Series.................. 6
ARTICLE IV................................................. 6
The Board of Trustees................................. 6
(i)
PAGE
Section 1. Number, Election and Tenure.......... 6
Section 2. Effect of Death, Resignation, etc.
of a Trustee................................... 7
Section 3. Powers............................... 7
Section 4. Payment of Expenses by the Trust..... 10
Section 5. Ownership of Assets of the Trust..... 10
Section 6. Service Contracts.................... 10
ARTICLE V.................................................. 11
Shareholders' Voting Powers and Meetings.............. 11
Section 1. Voting Powers........................ 11
Section 2. Voting Power and Meetings............ 12
Section 3. Quorum and Required Vote............. 12
Section 4. Action by Written Consent............ 12
Section 5. Record Dates......................... 12
ARTICLE VI................................................. 13
Net Asset Value, Distributions, and Redemptions....... 13
Section 1. Determination of Net Asset Value,
Net Income, and Distributions.................. 13
Section 2. Redemptions and Repurchases.......... 13
Section 3. Redemptions at the Option of the
Trust.......................................... 13
Section 4. Transfer of Shares................... 14
ARTICLE VII................................................ 14
Compensation and Limitation of Liability.............. 14
Section 1. Compensation of Trustees............. 14
Section 2. Indemnification and Limitation of
Liability...................................... 14
Section 3. Trustee's Good Faith Action, Expert
Advice, No Bond or Surety...................... 14
Section 4. Insurance............................ 15
ARTICLE VIII............................................... 15
Miscellaneous......................................... 15
Section 1. Liability of Third Persons Dealing
with Trustees.................................. 15
Section 2. Termination of Trust or Series....... 15
Section 3. Merger and Consolidation............. 15
Section 4. Amendments........................... 16
Section 5. Filing of Copies, References,
Headings....................................... 16
Section 6. Applicable Law....................... 16
Section 7. Provisions in Conflict with Law or
Regulations.................................... 16
Section 8. Business Trust Only.................. 17
Section 9. Use of the Name "Xxxxxxx"............ 17
(ii)
AGREEMENT AND DECLARATION OF TRUST
OF
THE XXXXXXX FUNDS
WHEREAS, this AGREEMENT AND DECLARATION OF TRUST is made and entered into
as of the date set forth below by the Trustees named hereunder for the purpose
of forming a Delaware business trust in accordance with the provisions
hereinafter set forth,
NOW, THEREFORE, the Trustees hereby direct that a Certificate of Trust be
filed with the Office of the Secretary of State of the State of Delaware and
do hereby declare that the Trustees will hold IN TRUST all cash, securities
and other assets which the Trust now possesses or may hereafter acquire from
time to time in any manner and manage and dispose of the same upon the
following terms and conditions for the pro rata benefit of the holders of
Shares in this Trust.
ARTICLE I.
Name and Definitions
SECTION 1. NAME. This trust shall be known as "The Xxxxxxx Funds" 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 2. DEFINITIONS. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust established by
this Agreement and Declaration of Trust, as amended from time to
time;
(b) The "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account
of the Trust;
(c) "Trustees" refers to the persons who have signed this Agreement and
Declaration of Trust, so long as they continue in office in
accordance with the terms hereof, and all other persons who may from
time to time be duly elected or appointed to serve on the Board of
Trustees in accordance with the provisions hereof, and reference
herein to a Trustee or the Trustees shall refer to such person or
persons in their capacity as trustees hereunder;
(d) "Shares" means the shares of beneficial interest into which the
beneficial interest in the Trust shall be divided from time to time
and includes fractions of Shares as well as whole Shares;
(e) "Shareholder" means a record owner of outstanding Shares;
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(f) "Person" means and includes individuals, corporations, partnerships,
trusts, foundations, plans, associations, joint ventures, estates
and other entities, whether or not legal entities, and governments
and agencies and political subdivisions thereof, whether domestic or
foreign;
(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.
References herein to specific sections of the 1940 Act shall be
deemed to include such Rules and Regulations as are applicable to
such sections as determined by the Trustees or their designees;
(h) The terms "Commission" and "Principal Underwriter" shall have the
respective meanings given them in Section 2(a)(7) and Section
(2)(a)(29) of the 1940 Act;
(i) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust, as amended or restated from time to time;
(j) "By-Laws" shall mean the By-Laws of the Trust as amended from time
to time;
(k) The term "Interested Person" has the meaning given it in Section
2(a)(19) of the 1940 Act;
(l) "Investment Manager" or "Manager" means a party furnishing services
to the Trust pursuant to any contract described in Article IV,
Section 7(a) hereof;
(m) "Series" refers to each Series of Shares established and designated
under or in accordance with the provisions of Article III.
ARTICLE II.
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the business
of a management investment company registered under the 1940 Act through one
or more Series investing primarily in securities.
ARTICLE III.
Shares
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The beneficial interest in
the Trust shall at all times be divided into an unlimited number of Shares,
with a par value of $ .001 per Share. The Trustees may authorize the division
of Shares into separate Series and the division of Series into separate
classes of Shares. The different Series shall be established and designated,
and the variations in the relative rights and preferences as between the
different Series shall be fixed and determined, by the Trustees. If only one
Series shall be established, the Shares shall have the rights and preferences
provided for herein and in Article III, Section 6 hereof to the extent
relevant and not otherwise provided for herein.
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Subject to the provisions of Section 6 of this Article III, each Share
shall have voting rights as provided in Article V hereof, and holders of the
Shares of any Series shall be entitled to receive dividends, when, if and as
declared with respect thereto in the manner provided in Article VI, Section 1
hereof. No Share shall have any priority or preference over any other Share
of the same Series with respect to dividends or distributions of the Trust or
otherwise. All dividends and distributions shall be made ratably among all
Shareholders of a Series (or class) from the assets held with respect to such
Series according to the number of Shares of such Series (or class) held of
record by such Shareholders on the record date for any dividend or
distribution or on the date of termination of the Trust, as the case may be.
Shareholders shall have no preemptive or other right to subscribe to any
additional Shares or other securities issued by the Trust or any Series. The
Trustees may from time to time divide or combine the Shares of a Series into a
greater or lesser number of Shares of such Series without thereby materially
changing the proportionate beneficial interest of such Shares in the assets
held with respect to that Series or materially affecting the rights of Shares
of any other Series.
SECTION 2. OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the
Trust, which books shall be maintained separately for the Shares of each
Series. No certificates evidencing the ownership of Shares shall be issued
except as the Board of Trustees may otherwise determine from time to time.
The Trustees may make such rules as they consider appropriate for the transfer
of Shares of each Series (or class) and similar matters. The record books of
the Trust as kept by the Trust or any transfer or similar agent, as the case
may be, shall be conclusive as to the identity of the Shareholders of each
Series and as to the number of Shares of each Series held from time to time by
each Shareholder.
SECTION 3. INVESTMENTS IN THE TRUST. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration as the Trustees from time to time may authorize. Each
investment shall be credited to the Shareholder's account in the form of full
and fractional Shares of the Trust, in such Series (or class) as the purchaser
shall select, at the net asset value per Share next determined for such Series
(or class) after receipt of the investment; provided, however, that the
Trustees may, in their sole discretion, impose a sales charge or reimbursement
fee upon investments in the Trust.
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument and the By-Laws of the Trust. Every Shareholder by virtue
of having become a Shareholder shall be held to have expressly assented and
agreed to the terms hereof. The death of a Shareholder during the existence
of the Trust shall not operate to terminate the Trust, 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 shall
entitle such representative only to the rights of said deceased Shareholder
under this Declaration of Trust. Ownership of Shares shall not entitle a
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 as partners or
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joint venturers. Neither the Trust nor the Trustees, nor any officer,
employee or agent of the Trust shall have any power to bind personally any
Shareholder, or to call upon any Shareholder for the payment of any sum of
money or assessment whatsoever other than such as the Shareholder may at any
time agree to pay.
SECTION 5. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS RELATING TO
SHARES. Notwithstanding any other provision of this Declaration of Trust to
the contrary, and without limiting the power of the Board of Trustees to amend
the Declaration of Trust as provided elsewhere herein, the Board of Trustees
shall have the power to amend this Declaration of Trust, at any time and from
time to time, in such manner as the Board of Trustees may determine in their
sole discretion, without the need for Shareholder action, so as to add to,
delete, replace or otherwise modify any provisions relating to the Shares
contained in this Declaration of Trust, provided that before adopting any such
amendment without Shareholder approval the Board of Trustees shall determine
that it is consistent with the fair and equitable treatment of all
Shareholders and that Shareholder approval is not required by the 1940 Act or
other applicable law. If Shares have been issued, Shareholder approval shall
be required to adopt any amendments to this Declaration of Trust which would
adversely affect to a material degree the rights and preferences of the Shares
of any Series (or class) or to increase or decrease the par value of the
Shares of any Series (or class).
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SHARES. The establishment
and designation of any Series (or class) of Shares shall be effective upon the
adoption by a majority of the Trustees, of a resolution which sets forth such
establishment and designation and the relative rights and preferences of such
Series (or class). Each such resolution shall be incorporated herein by
reference upon adoption.
Shares of each Series (or class) established pursuant to this Section 6,
unless otherwise provided in the resolution establishing such Series, shall
have the following relative rights and preferences:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES. All consideration
received by the Trust for the issue or sale of Shares of a Series,
including dividends and distributions paid by, and reinvested in,
such Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds
thereof from whatever source derived, including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of
such proceeds in whatever form the same may be, shall irrevocably be
held with respect to that Series for all purposes, subject only to
the rights of creditors, and shall be so recorded upon the books of
account of the Trust. Such consideration, assets, income, earnings,
profits and proceeds thereof, from whatever source derived,
including, without limitation, any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds, in whatever form the
same may be, are herein referred to as "assets held with respect 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 assets held with respect to any
particular Series (collectively "General Assets"), the Trustees
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shall allocate such General Assets to, between or among any one or
more of the Series in such manner and on such basis as the Trustees,
in their sole discretion, deem fair and equitable, and any General
Asset so allocated to a particular Series shall be held with respect
to that Series. Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Series for all
purposes in absence of manifest error.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES. The assets of
the Trust held with respect to each Series shall be charged with the
liabilities of the Trust with respect to such Series and all
expenses, costs, charges and reserves attributable to such Series,
and any general liabilities of the Trust which are not readily
identifiable as being held in respect of a Series shall be allocated
and charged by the Trustees to and among any one or more Series 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 so charged to a Series are herein
referred to as "liabilities held with respect 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 in absence of manifest error. All Persons
who have extended credit which has been allocated to a particular
Series, or who have a claim or contract which has been allocated to
a Series, shall look exclusively to the assets held with respect to
such Series for payment of such credit, claim, or contract. In the
absence of an express agreement so limiting the claims of such
creditors, claimants and contracting parties, each creditor,
claimant and contracting party shall be deemed nevertheless to have
agreed to such limitation unless an express provision to the
contrary has been incorporated in the written contract or other
document establishing the contractual relationship.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS, AND REPURCHASES. No dividend
or distribution including, without limitation, any distribution paid
upon termination of the Trust or of any Series (or class) with
respect to, or any redemption or repurchase of, the Shares of any
Series (or class) shall be effected by the Trust other than from the
assets held with respect to such Series, nor shall any Shareholder
of any Series otherwise have any right or claim against the assets
held with respect to any other Series except to the extent that such
Shareholder has such a right or claim hereunder as a Shareholder of
such other Series. 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 in absence of manifest
error.
(d) VOTING. All Shares of the Trust entitled to vote on a matter shall
vote without differentiation between the separate Series on a one-
vote-per-Share basis; provided however, if a matter to be voted on
affects only the interests of not all Series (or class of a Series),
then only the Shareholders of such affected Series (or class) shall
be entitled to vote on the matter.
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(e) EQUALITY. All the Shares of each Series shall represent an equal
proportionate undivided interest in the assets held with respect to
such Series (subject to the liabilities of such Series and such
rights and preferences as may have been established and designated
with respect to classes of Shares within such Series), and each
Share of a Series shall be equal to each other Share of such Series.
(f) FRACTIONS. Any fractional Share of a Series shall have
proportionately all the rights and obligations of a whole share of
such Series, including rights with respect to voting, receipt of
dividends and distributions and redemption of Shares.
(g) EXCHANGE PRIVILEGE. The Trustees shall have the authority to
provide that the holders of Shares of any Series shall have the
right to exchange such Shares for Shares of one or more other Series
in accordance with such requirements and procedures as may be
established by the Trustees.
(h) COMBINATION OF SERIES. The Trustees shall have the authority,
without the approval of the Shareholders of any Series unless
otherwise required by applicable law, to combine the assets and
liabilities held with respect to any two or more Series into assets
and liabilities held with respect to a single Series.
(i) ELIMINATION OF SERIES. At any time that there are no Shares
outstanding of a Series (or class), the Trustees may abolish such
Series (or class).
ARTICLE IV.
The Board of Trustees
SECTION 1. NUMBER, ELECTION AND TENURE. The number of Trustees
constituting the Board of Trustees shall be fixed from time to time by a
written instrument signed, or by resolution approved at a duly constituted
meeting, by a majority of the Board of Trustees, provided, however, that the
number of Trustees shall in no event be less than one (1) nor more than
fifteen (15). Subject to the requirements of Section 16(a) of the 1940 Act,
the Board of Trustees, by action of a majority of the then Trustees at a duly
constituted meeting, may fill vacancies in the Board of Trustees and remove
Trustees with or without cause. Each Trustee shall serve during the continued
lifetime of the Trust until he or she dies, resigns, is declared bankrupt or
incompetent by a court of competent jurisdiction, or is removed. Any Trustee
may resign at any time by written instrument signed by him and delivered to
any officer of the Trust or to a meeting of the Trustees. Such resignation
shall be effective upon receipt unless specified to be effective at some other
time. Except to the extent expressly provided in a written agreement with the
Trust, no Trustee resigning and no Trustee removed shall have any right to any
compensation for any period following his or her resignation or removal, or
any right to damages or other payment on account of such removal. Any Trustee
may be removed at any meeting of Shareholders by a vote of two-thirds of the
outstanding Shares of the Trust. A meeting of Shareholders for the purpose of
electing or removing one or more Trustees may be called (i) by the Trustees
upon their own vote, or (ii) upon the demand of Shareholders owning 10% or
more of the Shares of the Trust in the aggregate.
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SECTION 2. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The death,
declination, resignation, retirement, removal, or incapacity of one or more
Trustees, or all of them, shall not operate to annul the Trust or to revoke
any existing agency created pursuant to the terms of this Declaration of
Trust. Whenever a vacancy in the Board of Trustees shall occur, until such
vacancy is filled as provided in Article IV, Section 1, the Trustees in
office, regardless of their number, shall have all the powers granted to the
Trustees and shall discharge all the duties imposed upon the Trustees by this
Declaration of Trust.
SECTION 3. POWERS. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Board of Trustees,
and such Board shall have all powers necessary or convenient to carry out that
responsibility including the power to engage in transactions of all kinds on
behalf of the Trust. Trustees, in all instances, shall act as principals and
are and shall be free from the control of the Shareholders. The Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts, documents and instruments that they may
consider desirable, necessary or appropriate in connection with the
administration of the Trust. Without limiting the foregoing, the Trustees
may: adopt, amend and repeal By-Laws not inconsistent with this Declaration
of Trust providing for the regulation and management of the affairs of the
Trust; elect and remove such officers and appoint and terminate such agents as
they consider appropriate; appoint from their own number and establish and
terminate one or more committees consisting of two or more Trustees who may
exercise the powers and authority of the Board of Trustees to the extent that
the Trustees determine; employ one or more custodians of the assets of the
Trust and may authorize such custodians to employ subcustodians and to deposit
all or any part of such assets in a system or systems for the central handling
of securities or with a Federal Reserve Bank, retain a transfer agent or a
shareholder servicing agent, or both; provide for the issuance and
distribution of Shares by the Trust directly or through one or more Principal
Underwriters or otherwise; redeem, repurchase and transfer Shares pursuant to
applicable law; set record dates for the determination of Shareholders with
respect to various matters; declare and pay dividends and distributions to
Shareholders of each Series from the assets of such Series; establish from
time to time, in accordance with the provisions of Article III, Section 6
hereof, any Series of Shares, each such Series to operate as a separate and
distinct investment medium and with separately defined investment objectives
and policies and distinct investment purpose; and in general delegate such
authority as they consider desirable to any officer of the Trust, to any
committee of the Trustees and to any agent or employee of the Trust or to any
such custodian, transfer or shareholder servicing agent, Investment Manager or
Principal Underwriter. Any determination as to what is in the interests of
the Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Declaration of Trust, the presumption shall
be in favor of a grant of power to the Trustees and unless otherwise specified
herein or required by the 1940 Act or other applicable law, any action by the
Board of Trustees shall be deemed effective if approved or taken by a majority
of the Trustees then in office or a majority of any duly constituted committee
of Trustees. Any action required or permitted to be taken at any meeting of
the Board of Trustees, or any committee thereof, may be taken without a
meeting if all members of the Board of Trustees or committee (as the case may
be) consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of the Board of Trustees, or committee, except as
otherwise provided in the 1940 Act.
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Without limiting the foregoing, the Trust shall have power and authority:
(a) To invest and reinvest cash and cash items, to hold cash uninvested,
and to subscribe for, invest in, reinvest in, purchase or otherwise
acquire, own, hold, pledge, sell, assign, transfer, exchange,
distribute, write options on, lend or otherwise deal in or dispose
of contracts for the future acquisition or delivery of all types of
securities, futures contracts and options thereon, and forward
currency contracts of every nature and kind, including, without
limitation, all types of bonds, debentures, stocks, preferred
stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances, and
other securities of any kind, issued, created, guaranteed, or
sponsored by any and all Persons, including, without limitation,
states, territories, and possessions of the United States and the
District of Columbia and any political subdivision, agency, or
instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international instrumentality or organization, or by any bank or
savings institution, or by any corporation or organization organized
under the laws of the United States or of any state, territory, or
possession thereof, or by any corporation or organization organized
under any foreign law, or in "when issued" contracts for any such
securities, futures contracts and options thereon, and forward
currency contracts, to change the investments of the assets of the
Trust; and to exercise any and all rights, powers, and privileges of
ownership or interest in respect of any and all such investments of
every kind and description, including, without limitation, the right
to consent and otherwise act with respect thereto, with power to
designate one or more Persons, to exercise any of said rights,
powers, and privileges in respect of any of said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or
write options with respect to or otherwise deal in any property
rights relating to any or all of the assets of the Trust or any
Series;
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as
the Trustees shall deem proper, granting to such person or persons
such power and discretion with relation to securities or property as
the Trustees shall deem proper;
(d) To exercise powers and right of subscription or otherwise which in
any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating that it is
trust property, whether in bearer, unregistered or other negotiable
form, or in its own name or in the name of a custodian or
subcustodian or a nominee or nominees or otherwise or to authorize
the custodian or a subcustodian or a nominee or nominees to deposit
the same in a securities depository, subject in each case to the
applicable provisions of the 1940 Act;
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(f) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security
which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or
issuer; and to pay calls or subscriptions with respect to any
security held in the Trust;
(g) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such
committee, depositary or trustee, and to delegate to them such power
and authority with relation to any security (whether or not so
deposited or transferred) as the Trustees shall deem proper, and to
agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(h) To litigate, compromise, arbitrate, settle or otherwise adjust
claims in favor of or against the Trust or a Series, or any matter
in controversy, including but not limited to claims for taxes;
(i) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(j) To borrow funds or other property in the name of the Trust or Series
exclusively for Trust purposes;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary, desirable or
appropriate for the conduct of the business, including, without
limitation, insurance policies insuring the assets of the Trust or
payment of distributions and principal on its portfolio investments,
and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, Investment Manager, principal
underwriters, or independent contractors of the Trust, individually
against all claims and liabilities of every nature arising by reason
of holding Shares, holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or
omitted by any such Person as Trustee, officer, employee, agent,
Investment Manager, Principal Underwriter, or independent
contractor, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Trust would
have the power to indemnify such Person against liability; and
(m) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of
providing such retirement and other benefits, for any or all of the
Trustees, officers, employees and agents of the Trust.
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The Trust shall not be limited to investing in obligations maturing
before the possible termination of the Trust or one or more of its
Series. The Trust shall not in any way be bound or limited by any
present or future law or custom in regard to investment by
fiduciaries. The Trust shall not be required to obtain any court
order to deal with any assets of the Trust or take any other action
hereunder.
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST. Subject to the provisions
of Article III, Section 6(b), the Trustees are authorized to pay or cause to
be paid out of the principal or income of the Trust or Series, or partly out
of the 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 or
designated pursuant to Article III, Section 6, all expenses, fees, charges,
taxes and liabilities incurred or arising in connection with the Trust or
Series, 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 Manager^, Principal
Underwriter, auditors, counsel, custodian, transfer agent, Shareholder
servicing agent, and such other agents or independent contractors and such
other expenses and charges as the Trustees may deem necessary or proper to
incur.
SECTION 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 Trust, except
that the Trustees shall have power to cause legal title to any Trust Property
to be held by or in the name of one or more of the Trustees, or in the name of
the Trust, or in the name of any other Person as nominee, on such terms as the
Trustees may determine. Upon the resignation, incompetency, bankruptcy,
removal, or death of a Trustee he or she shall automatically cease to have any
such title in any of the Trust Property, and the title of such Trustee in the
Trust Property shall vest automatically in the remaining Trustees. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered. The Trustees may determine that
the Trust or the Trustees, acting for and on behalf of the Trust, shall be
deemed to hold beneficial ownership of any income earned on the securities
owned by the Trust, whether domestic or foreign.
SECTION 6. SERVICE CONTRACTS.
(a) The Trustees may, at any time and from time to time, contract for
exclusive or nonexclusive advisory, management and/or administrative
services for the Trust or for any Series with any Person; and any
such contract may contain such other terms as the Trustees may
determine, including without limitation, authority for the
Investment Manager to determine from time to time without prior
consultation with the Trustees what investments shall be purchased,
held, sold or exchanged and what portion, if any, of the assets of
the Trust shall be held uninvested and to make changes in the
Trust's investments, and such other responsibilities as may
specifically be delegated to such Person.
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(b) The Trustees may also, at any time and from time to time, contract
with any Persons, appointing such Persons exclusive or nonexclusive
distributor or Principal Underwriter for the Shares of one or more
of the Series or other securities to be issued by the Trust. Every
such contract may contain such other terms as the Trustees may
determine.
(c) The Trustees are also empowered, at any time and from time to time,
to contract with any Persons, appointing such Person(s) to serve as
custodian(s), transfer agent and/or shareholder servicing agent for
the Trust or one or more of its Series. Every such contract shall
comply with such terms as may be required by the Trustees.
(d) The Trustees are further empowered, at any time and from time to
time, to contract with any Persons to provide such other services to
the Trust or one or more of the Series, as the Trustees determine to
be in the best interests of the Trust and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the Trust is
a shareholder, director, officer, partner, trustee, employee,
Manager, adviser, Principal Underwriter, distributor, or
affiliate or agent of or for any Person with which an
advisory, management or administration contract, or Principal
Underwriter's or distributor's contract, or transfer,
shareholder servicing or other type of service contract may be
made, or that
(ii) any Person with which an advisory, management or
administration contract or Principal Underwriter's or
distributor's contract, or transfer, shareholder servicing or
other type of service contract may be made also has an
advisory, management or administration contract, or principal
underwriter's or distributor's contract, or transfer,
shareholder servicing or other service contract, or has other
business or interests with any other Person, shall not affect
the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon
or executing the same, or create any liability or
accountability to the Trust or its Shareholders, provided
approval of each such contract is made pursuant to the
applicable requirements of the 1940 Act.
ARTICLE V.
Shareholders' Voting Powers and Meetings
SECTION 1. VOTING POWERS. Subject to the provisions of Article III,
Sections 5 and 6(d), the Shareholders shall have right to vote only (i) for
the election or removal of Trustees as provided in Article IV, Section 1, and
(ii) with respect to such additional matters relating to the Trust as may be
required by the applicable provisions of the 1940 Act, including Section 16(a)
thereof, and (iii) on such other matters as the Trustees may consider
necessary or desirable. Each whole Share shall be entitled to one vote as to
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any matter on which it is entitled to vote and each fractional Share shall be
entitled to a proportionate fractional vote. There shall be no cumulative
voting in the election of Trustees. Shares may be voted in person or by
proxy. A proxy purporting to be executed by or on behalf of a Shareholder
shall be deemed valid unless challenged at or prior to its exercise and the
burden of proving invalidity shall rest on the challenger.
SECTION 2. VOTING POWER AND MEETINGS. Meetings of the Shareholders may
be called by the Trustees for the purposes described in Section 1 of this
Article V. A meeting of Shareholders may be held at any place designated by
the Trustees. Written notice of any meeting of Shareholders shall be given or
caused to be given by the Trustees by delivering personally or mailing such
notice not more than ninety (90), nor less than ten (10) days before such
meeting, postage prepaid, stating the time and place of the meeting, to each
Shareholder at the Shareholder's address as it appears on the records of the
Trust. Whenever notice of a meeting is required to be given to a Shareholder
under this Declaration of Trust, a written waiver thereof, executed before or
after the meeting by such Shareholder or his or her attorney thereunto
authorized and filed with the records of the meeting, or actual attendance at
the meeting of Shareholders in person or by proxy, shall be deemed equivalent
to such notice.
SECTION 3. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by the applicable provisions of the 1940 Act, the presence in person
or by proxy of a majority of the Shares entitled to vote on a matter shall
constitute a quorum at a Shareholders' meeting. Any meeting of Shareholders
may be adjourned from time to time by a majority of the votes properly cast
upon the question of adjourning a meeting to another date and time, whether or
not a quorum is present, and the meeting may be held as adjourned within a
reasonable time after the date set for the original meeting without further
notice. Subject to the provisions of Article III, Section 6(d) and the
applicable provisions of the 1940 Act, when a quorum is present at any
meeting, a majority of the Shares voted shall decide any questions except only
a plurality vote shall be necessary to elect Trustees.
SECTION 4. ACTION BY WRITTEN CONSENT. Any action taken by Shareholders
may be taken without a meeting if all the holders of Shares entitled to vote
on the matter are provided with not less than 7 days written notice thereof
and written consent to the action is filed with the records of the meetings of
Shareholders by the holders of the number of shares that would be required to
approve the matter as provided in Article V, Section 3. Such consent shall be
treated for all purposes as a vote taken at a meeting of Shareholders.
SECTION 5. RECORD DATES. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, the Trustees may fix a time, which shall be not more than ninety (90)
nor less than ten (10) days before the date of any meeting of Shareholders, as
the record date for determining the Shareholders having the right to notice of
and to vote at such meeting and any adjournment thereof, and in such case only
Shareholders of record on such record date shall have such right,
notwithstanding any transfer of shares on the books of the Trust after the
record date. For the purpose of determining the Shareholders who are entitled
to receive payment of any dividend or of any other distribution, the Trustees
may fix a date, which shall be before the date for the payment of such
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dividend or distribution, as the record date for determining the Shareholders
having the right to receive such dividend or distribution. Nothing in this
Section shall be construed as precluding the Trustees from setting different
record dates for different Series.
ARTICLE VI.
Net Asset Value, Distributions, and Redemptions
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME, AND
DISTRIBUTIONS. Subject to Article III, Section 6 hereof, the Trustees, in
their absolute discretion, may prescribe and shall set forth in the By-Laws or
in a duly adopted resolution of the Trustees such bases and time for
determining the per Share net asset value of the Shares of any Series and the
declaration and payment of dividends and distributions on the Shares of any
Series, as they may deem necessary or desirable.
SECTION 2. REDEMPTIONS AND REPURCHASES. The Trust shall purchase such
Shares as are offered by any Shareholder for redemption, upon receipt by the
Trust or a Person designated by the Trust that the Trust redeem such Shares or
in accordance with such procedures for redemption as the Trustees may from
time to time authorize; and the Trust will pay therefor the net asset value
thereof, in accordance with the By-Laws and the applicable provisions of the
1940 Act. Payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the request for
redemption is received in proper form. The obligation set forth in this
Section 2 is subject to the provision that in the event that any time the New
York Stock Exchange (the "Exchange") is closed for other than weekends or
holidays, or if permitted by the Rules of the Commission during periods when
trading on the Exchange is restricted or during any emergency which makes it
impracticable for the Trust to dispose of the investments of the applicable
Series or to determine fairly the value of the net assets held with respect to
such Series or during any other period permitted by order of the Commission
for the protection of investors, such obligations may be suspended or
postponed by the Trustees.
The redemption price may in any case or cases be paid in cash or wholly
or partly in kind in accordance with Rule 18f-1 under the 1940 Act if the
Trustees determine that such payment is advisable in the interest of the
remaining Shareholders of the Series of which the Shares are being redeemed.
Subject to the foregoing, the selection and quantity of securities or other
property so paid or delivered as all or part of the redemption price shall be
determined by or under authority of the Trustees. In no case shall the Trust
be liable for any delay of any corporation or other Person in transferring
securities selected for delivery as all or part of any payment in kind.
SECTION 3. REDEMPTIONS AT THE OPTION OF THE TRUST. The Trust shall have
the right, at its option, upon 60 days notice to the affected Shareholder at
any time to redeem Shares of any Shareholder at the net asset value thereof as
described in Section 1 of this Article VI: (i) if at such time such
Shareholder owns Shares of any Series having an aggregate net asset value of
less than a minimum value determined from time to time by the Trustees; or
(ii) to the extent that such Shareholder owns Shares of a Series equal to or
in excess of a maximum percentage of the outstanding Shares of such Series
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determined from time to time by the Trustees; or (iii) to the extent that such
Shareholder owns Shares equal to or in excess of a maximum percentage,
determined from time to time by the Trustees, of the outstanding Shares of the
Trust.
SECTION 4. TRANSFER OF SHARES. The Trust shall transfer shares held of
record by any Person to any other Person upon receipt by the Trust or a Person
designated by the Trust of a written request therefore in such form and
pursuant to such procedures as may be approved by the Trustees.
ARTICLE VII.
Compensation and Limitation of Liability
SECTION 1. COMPENSATION OF TRUSTEES. The Trustees as such shall be
entitled to reasonable compensation from the Trust, and they may fix the
amount of such compensation from time to time. Nothing herein shall in any
way prevent the employment of any Trustee to provide advisory, management,
legal, accounting, investment banking or other services to the Trust and to be
specially compensated for such services by the Trust.
SECTION 2. INDEMNIFICATION AND LIMITATION OF LIABILITY. The Trustees
shall not be responsible or liable in any event for any neglect or wrong-doing
of any officer, agent, employee, Manager or Principal Underwriter of the
Trust, nor shall any Trustee be responsible for the act or omission of any
other Trustee, and, subject to the provisions of the Bylaws, the Trust out of
its assets may indemnify and hold harmless each and every Trustee and officer
of the Trust from and against any and all claims, demands, costs, losses,
expenses, and damages whatsoever arising out of or related to such Trustee's
performance of his or her duties as a Trustee or officer of the Trust;
provided that nothing herein contained shall indemnify, hold harmless or
protect any Trustee or officer from or against any liability to the Trust or
any Shareholder to which he or she would otherwise be subject by reason of
wilful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever issued, executed or done by or on behalf
of the Trust or the Trustees or any of them in connection with the Trust shall
be conclusively deemed to have been issued, executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
SECTION 3. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY. The exercise by the Trustees of their powers hereunder shall be
binding upon everyone interested in or dealing with the Trust. A Trustee
shall be liable to the Trust and to any Shareholder solely for his or her own
wilful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee, and shall not be
liable for errors of judgment or mistakes of fact or law. The Trustees may
take advice of counsel or other experts with respect to the meaning and
operation of this Declaration of Trust, and shall be under no liability for
any act or omission in accordance with such advice nor for failing to follow
such advice. The Trustees shall not be required to give any bond as such, nor
any surety if a bond is required.
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SECTION 4. INSURANCE. The Trustees shall be entitled and empowered to
the fullest extent permitted by law to purchase with Trust assets insurance
for liability and for all expenses reasonably incurred or paid or expected to
be paid by a Trustee or officer in connection with any claim, action, suit or
proceeding in which he or she becomes involved by virtue of his or her
capacity or former capacity with the Trust, whether or not the Trust would
have the power to indemnify him or her against such liability under the
provisions of this Article.
ARTICLE VIII.
Miscellaneous
SECTION 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No Person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to
the application of any payments made or property transferred to the Trust or
upon its order.
SECTION 2. TERMINATION OF TRUST OR SERIES. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The
Trust may be terminated at any time by the Trustees upon 60 days prior
written notice to the Shareholders. Any Series may be terminated at any time
by the Trustees upon 60 days prior written notice to the Shareholders of that
Series.
Upon termination of the Trust (or any Series, as the case may be), after
paying or otherwise providing for all charges, taxes, expenses and liabilities
held, severally, with respect to each Series (or the applicable Series, as the
case may be), 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 held, severally,
with respect to each Series (or the applicable Series, as the case may be), to
distributable form in cash or shares or other securities, and any combination
thereof, and distribute the proceeds held with respect to each Series (or the
applicable Series, as the case may be), to the Shareholders of that Series, as
a Series, ratably according to the number of Shares of that Series held by the
several Shareholders on the date of termination.
SECTION 3. MERGER AND CONSOLIDATION. The Trustees may cause (i) the
Trust or one or more of its Series to the extent consistent with applicable
law to be merged into or consolidated with another Trust, series or Person,
(ii) the Shares of the Trust or any Series to be converted into beneficial
interests in another business trust (or series thereof), (iii) the Shares to
be exchanged for assets or property under or pursuant to any state or federal
statute to the extent permitted by law or (iv) a sale of assets of the Trust
or one or more of its Series. Such merger or consolidation, Share conversion,
Share exchange or sale of assets must be authorized by vote as provided in
Article V, Section 3 herein; provided that in all respects not governed by
statute or applicable law, the Trustees shall have power to prescribe the
procedure necessary or appropriate to accomplish a sale of assets, Share
exchange, merger or consolidation including the power to create one or more
separate business trusts to which all or any part of the assets, liabilities,
profits or losses of the Trust may be transferred and to provide for the
conversion of Shares of the Trust or any Series into beneficial interests in
such separate business trust or trusts (or series thereof).
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SECTION 4. AMENDMENTS. This Declaration of Trust may be restated and/or
amended at any time by an instrument in writing signed by a majority of the
Trustees then holding office. Any such restatement and/or amendment hereto
shall be effective immediately upon execution and approval. The Certificate
of Trust of the Trust may be restated and/or amended by a similar procedure,
and any such restatement and/or amendment shall be effective immediately upon
filing with the Office of the Secretary of State of the State of Delaware or
upon such future date as may be stated therein.
SECTION 5. FILING OF COPIES, REFERENCES, HEADINGS. The original or a
copy of this instrument and of each restatement and/or amendment hereto shall
be kept at the office of the Trust where it may be inspected by any
Shareholder. Anyone dealing with the Trust may rely on a certificate by an
officer of the Trust as to whether or not any such restatements and/or
amendments have been made and as to any matters in connection with the Trust
hereunder; and, with the same effect as if it were the original, may rely on a
copy certified by an officer of the Trust to be a copy of this instrument or
of any such restatements and/or amendments. In this instrument and in any
such restatements and/or amendment, references to this instrument, and all
expressions like "herein," "hereof" and "hereunder," shall be deemed to refer
to this instrument as amended or affected by any such restatements and/or
amendments. Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. Whenever the singular number is
used herein, the same shall include the plural; and the neuter, masculine and
feminine genders shall include each other, as applicable. This instrument may
be executed in any number of counterparts each of which shall be deemed an
original.
SECTION 6. APPLICABLE LAW. This Agreement and Declaration of Trust is
created under and is to be governed by and construed and administered
according to the laws of the State of Delaware and the Delaware Business Trust
Act, as amended from time to time (the "Act"). The Trust shall be a Delaware
business trust pursuant to such Act, and without limiting the provisions
hereof, the Trust may exercise all powers which are ordinarily exercised by
such a business trust.
SECTION 7. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of the Declaration of Trust are severable, and if the
Trustees shall determine, with the advice of counsel, that any of
such provisions is in conflict with the 1940 Act, the regulated
investment company provisions of the Internal Revenue Code or with
other applicable laws and regulations, the conflicting provision
shall be deemed never to have constituted a part of the Declaration
of Trust; provided, however, that such determination shall not
affect any of the remaining provisions of the Declaration of Trust
or render invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of the Declaration of Trust shall be held invalid
or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision in
any other jurisdiction or any other provision of the Declaration of
Trust in any jurisdiction.
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SECTION 8. BUSINESS TRUST ONLY. It is the intention of the Trustees to
create a business trust pursuant to the Act, and thereby to create only the
relationship of trustee and beneficial owners within the meaning of such Act
between the Trustees and each Shareholder. It is not the intention of the
Trustees to create a general partnership, limited partnership, joint stock
association, corporation, bailment, joint venture, or any form of legal
relationship other than a business trust pursuant to such Act. Nothing in
this Declaration of Trust shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
SECTION 9. USE OF THE NAME "XXXXXXX" AND " FINANCIAL ALERT". The names
"Olstein" and "Financial Alert" and all rights to the use of the names
"Olstein" and "Financial Alert" belong to Xxxxxxx & Associates, L.P. ("Xxxxxxx
& Associates"), the Manager of the Trust. Xxxxxxx & Associates has consented
to the use by the Trust of the identifying words "Xxxxxxx" and "Financial
Alert" and has granted to the Trust a non-exclusive license to use the names
"Xxxxxxx" and "Financial Alert" as part of the name of the Trust and the name
of any Series of Shares. In the event Xxxxxxx & Associates or an affiliate of
Xxxxxxx & Associates is not appointed as Manager or ceases to be the Manager
of the Trust or of any Series using such names, the non-exclusive license
granted herein may be revoked by Xxxxxxx & Associates. Upon receipt of such a
written revocation from Xxxxxxx & Associates or any successor to its interests
in such name, the Trustees agreed to execute such amendment to the Trust's
Certificate of Trust and this Declaration of Trust as may be required to
effect a change in the name of Trust or any Series of Shares of the Trust, and
the Trust promptly shall cease using the names "Xxxxxxx" and "Financial Alert"
as part of its name or the name of any Series of Shares.
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IN WITNESS WHEREOF, the Trustees named below do hereby make and enter
into this Declaration of Trust as of the 31st day of March, 1995.
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
/s/ Xxxxxxxx X. Xxxx
Xxxxxxxx X. Xxxx
00 Xxxxxxxxx Xxxx Xxxxx
Xxxx 00X00
Xxxxxxxxxxx, XX 00000
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS
000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
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