MIDWEST INCOME TRUST
RESTATED AGREEMENT AND DECLARATION OF TRUST
AUGUST 26, 1993
MIDWEST INCOME TRUST
RESTATED AGREEMENT AND DECLARATION OF TRUST
PAGE
ARTICLE I. NAME AND DEFINITIONS........................ 1
Section 1.1 Name......................................... 1
Section 1.2 Definitions.................................. 1
(a) "Trust"...................... 1
(b) "Trustees"................... 1
(c) "Shares"..................... 2
(d) "Series"..................... 2
(e) "Shareholder"................ 2
(f) "1940 Act"................... 2
(g) "Commission"................. 2
(h) "Restated Declaration of Trust"2
(i) "Bylaws"..................... 2
ARTICLE II. PURPOSE OF TRUST............................. 2
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ARTICLE III. THE TRUSTEES................................. 2
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Section 3.1 Number, Designation, Election, Term, etc..... 2
(a) Initial Trustees.................... 2
(b) Number.............................. 3
(c) Term................................ 3
(d) Resignation and Retirement.......... 3
(e) Removal............................. 3
(f) Vacancies........................... 4
(g) Effect of Death, Resignation, etc... 4
(h) No Accounting....................... 4
Section 3.2 Powers of the Trustees....................... 5
(a) Investments......................... 5
(b) Disposition of Assets............... 6
(c) Ownership Powers.................... 6
(d) Subscription........................ 6
(e) Form of Holding..................... 6
(f) Reorganization, etc................. 6
(g) Voting Trusts, etc.................. 6
(h) Compromise.......................... 7
(i) Partnerships, etc................... 7
(j) Borrowing and Security.............. 7
(i)
PAGE
(k) Guarantees, etc..................... 7
(l) Insurance........................... 7
(m) Pensions, etc....................... 7
Section 3.3 Certain Contracts............................ 8
(a) Advisory...........................8
(b) Administration.....................8
(c) Distribution.......................9
(d) Custodian and Depository...........9
(e) Transfer and Dividend Disbursing
Agency.............................9
(f) Shareholder Servicing..............9
(g) Accounting.........................9
Section 3.4 Payment of Trust Expenses and Compensation
of Trustees.................................. 10
Section 3.5 Ownership of Assets of the Trust............. 10
ARTICLE IV. SHARES....................................... 11
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Section 4.1 Description of Shares........................ 11
Section 4.2 Establishment and Designation of Series...... 12
(a) Assets Belonging to Series.......... 13
(b) Liabilities Belonging to Series..... 14
(c) Dividends........................... 14
(d) Liquidation......................... 15
(e) Voting.............................. 15
(f) Redemption by Shareholder........... 16
(g) Redemption by Trust................. 16
(h) Net Asset Value..................... 17
(i) Transfer............................ 17
(j) Equality............................ 17
(k) Fractions........................... 18
(l) Conversion Rights................... 18
Section 4.3 Ownership of Shares.......................... 18
Section 4.4 Investments in the Trust..................... 18
Section 4.5 No Preemptive Rights......................... 19
Section 4.6 Status of Shares and Limitation of Personal
Liability.................................... 19
(ii)
PAGE
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS...... 19
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Section 5.1 Voting Powers................................ 19
Section 5.2 Meetings..................................... 20
Section 5.3 Record Dates................................. 20
Section 5.4 Quorum and Required Vote..................... 21
Section 5.5 Action by Written Consent.................... 21
Section 5.6 Inspection of Records........................ 21
Section 5.7 Additional Provisions........................ 21
ARTICLE VI. LIMITATION OF LIABILITY; INDEMNIFICATION...... 22
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Section 6.1 Trustees, Shareholders, etc. Not Personally
Liable; Notice................................ 22
Section 6.2 Trustee's Good Faith Action; Expert Advice;
No Bond or Surety............................. 22
Section 6.3 Indemnification of Shareholders.............. 23
Section 6.4 Indemnification of Trustees, Officers, etc... 23
Section 6.5 Advances of Expenses......................... 24
Section 6.6 Indemnification Not Exclusive, etc........... 24
Section 6.7 Liability of Third Persons Dealing with
Trustees..................................... 25
ARTICLE VII. MISCELLANEOUS................................. 25
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Section 7.1 Duration and Termination of Trust............. 25
Section 7.2 Reorganization................................ 25
Section 7.3 Amendments................................... 26
Section 7.4 Filing of Copies; References; Headings....... 26
Section 7.5 Applicable Law............................... 27
(iii)
MIDWEST INCOME TRUST
RESTATED AGREEMENT AND DECLARATION OF TRUST
The Agreement and Declaration of Trust initially made in Bedford,
Massachusetts on December 7, 1980, as heretofore amended, is hereby restated in
its entirety this 26th day of August, 1993 to provide as follows:
WITNESSETH:
WHEREAS, this Trust has been formed to carry on the business
of an investment company; and
WHEREAS, this Trust has also been formed to succeed to the business of
Midwest Income Investment Company, an Ohio corporation; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of a Massachusetts business trust in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets which they may from time to time acquire in
any manner as Trustees hereunder IN TRUST to manage and dispose of the same upon
the following terms and conditions for the benefit of the holders from time to
time of shares of beneficial interest in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1 NAME. This Trust shall be known as "Midwest Income Trust"
and the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine. Until otherwise determined,
the principal place of business of the Trust is 000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000. The Trust's resident agent in Massachusetts is CT Corporation
System, 0 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
Section 1.2 DEFINITIONS. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust
established by this Restated Agreement and Declaration of
Trust, as amended from time to time;
(b) "Trustees" refers to the Trustees of the Trust named herein or
elected in accordance with Article III;
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(c) "Shares" refers to the transferable units of interest into
which the beneficial interest in the Trust or any Series of
the Trust (as the context may require) shall be divided from
time to time;
(d) "Series" refers to Series of Shares established and designated
under or in accordance with the provisions of Article IV;
(e) "Shareholder" means a record owner of Shares;
(f) The "1940 Act" refers to the Investment Company Act of 1940
and the Rules and Regulations thereunder, all as amended from
time to time;
(g) "Commission" shall have the meaning given it in the
1940 Act;
(h) "Restated Declaration of Trust" shall mean this Restated
Agreement and Declaration of Trust as amended or restated from
time to time; and
(i) "Bylaws" shall mean the Bylaws of the Trust as amended from
time to time.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company, to
offer Shareholders one or more investment programs primarily in securities and
debt instruments and to transact any or all lawful business.
ARTICLE III
THE TRUSTEES
Section 3.1 NUMBER, DESIGNATION, ELECTION, TERM, ETC.
(a) Initial Trustees. Upon execution of this Restated Declaration
of Trust or a counterpart hereof, each of the following has
agreed to continue to be a Trustee of the Trust and to be
bound by the provisions hereof:
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Xxxx X. Xxxxxxx, 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxx, 00 Xxxxxx Xxxx, Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxx, 0000 Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 H.
Xxxxxx Xxxxxx, 0000 Xxxxx Xxxx, Xxxxx X, Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxx, 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000
G. Xxxxxxx Xxxxx, 0000 Xxxxxx Xxxx, Xxxxx, XX 00000
Xxxxx X. Xxxxxxx, 0000 Xxxxxxx Xxxx, Xxxxxx XX 00000
(b) Number. The Trustees serving as such, whether named
above or hereafter becoming a Trustee, may increase or
decrease (to not less than three) the number of
Trustees to a number other than the number theretofore
determined. No decrease in the number of Trustees
shall have the effect of removing any Trustee from
office prior to the expiration of his term, but the
number of Trustees may be decreased in conjunction with
the removal of a Trustee pursuant to subsection (e) of
this Section 3.1.
(c) Term. Each Trustee shall serve as a Trustee during the
lifetime of the Trust and until its termination as
hereinafter provided or until such Trustee sooner dies,
resigns, retires or is removed. The Trustees may elect
their own successors and may, pursuant to Section
3.1(f) hereof, appoint Trustees to fill vacancies;
provided that, immediately after filling a vacancy, at
least 2/3 of the Trustees then holding office shall
have been elected to such office by the Shareholders at
an annual or special meeting. If at any time less than
a majority of the Trustees then holding office were so
elected, the Trustees shall forthwith cause to be held
as promptly as possible, and in any event within 60
days, a meeting of Shareholders for the purpose of
electing Trustees to fill any existing vacancies.
(d) Resignation and Retirement. Any Trustee may resign his trust
or retire as a Trustee, by written instrument signed by him
and delivered to the other Trustees or to any officer of the
Trust, and such resignation or retirement shall take effect
upon such delivery or upon such later date as is specified in
such instrument.
(e) Removal. Any Trustees may be removed with or without cause at
any time: (i) by written instrument, signed by at least
two-thirds of the number of Trustees prior to such removal,
specifying the date upon which such removal shall become
effective, (ii) by vote of the Shareholders holding not less
than two-thirds of the Shares then outstanding, cast in person
or by proxy at
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any meeting called for the purpose, or (iii) by a declaration
in writing signed by Shareholders holding not less than
two-thirds of the Shares then outstanding and filed with the
Trust's Custodian.
(f) Vacancies. Any vacancy or anticipated vacancy
resulting from any reason, including without limitation
the death, resignation, retirement, removal or
incapacity of any of the Trustees, or resulting from an
increase in the number of Trustees by the Trustees may
(but so long as there are at least three remaining
Trustees, need not unless required by the 0000 Xxx) be
filled either by a majority of the remaining Trustees
through the appointment in writing of such other person
as such remaining Trustees in their discretion shall
determine (unless a shareholder election is required by
the 0000 Xxx) or by the election by the Shareholders,
at a meeting called for the purpose, of a person to
fill such vacancy, and such appointment or election
shall be effective upon the written acceptance of the
person named therein to serve as a Trustee and
agreement by such person to be bound by the provisions
of this Restated Declaration of Trust, except that any
such appointment or election in anticipation of a
vacancy to occur by reason of retirement, resignation,
or increase in number of Trustees to be effective at a
later date shall become effective only at or after the
effective date of said retirement, resignation, or
increase in number of Trustees. As soon as any Trustee
so appointed or elected shall have accepted such
appointment or election and shall have agreed in
writing to be bound by this Restated Declaration of
Trust and the appointment or election is effective, the
Trust estate shall vest in the new Trustee, together
with the continuing Trustees, without any further act
or conveyance.
(g) Effect of Death, Resignation, etc. The death, resignation,
retirement, removal, or incapacity of the Trustees, or any one
of them, shall not operate to annul or terminate the Trust or
to revoke or terminate any existing agency or contract created
or entered into pursuant to the terms of this Restated
Declaration of Trust.
(h) No Accounting. Except to the extent required by the 1940 Act
or under circumstances which would justify his removal for
cause, no person ceasing to be a Trustee as a result of his
death, resignation, retirement, removal or incapacity (nor the
estate of any such person) shall be required to make an
accounting to the Shareholders or remaining Trustees upon such
cessation.
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Section 3.2 POWERS OF THE TRUSTEES. Subject to the provisions of this
Restated Declaration of Trust, the business of the Trust shall be managed by the
Trustees, and they shall have all powers necessary or convenient to carry out
that responsibility and the purpose of the Trust. Without limiting the
foregoing, the Trustees may adopt Bylaws not inconsistent with this Restated
Declaration of Trust providing for the conduct of the business and affairs of
the Trust and may amend and repeal them to the extent that such Bylaws do not
reserve that right to the Shareholders; they may as they consider appropriate
elect and remove officers and appoint and terminate agents and consultants and
hire and terminate employees, any one or more of the foregoing of whom may be a
Trustee, and may provide for the compensation of all of the foregoing; they may
appoint from their own number, and terminate, any one or more committees
consisting of two or more Trustees, including without implied limitation an
executive committee, which may, when the Trustees are not in session and subject
to the 1940 Act, exercise some or all of the power and authority of the Trustees
as the Trustees may determine; in accordance with Section 3.3 they may employ
one or more Advisers, Administrators, Depositories and Custodians and may
authorize any Depository or Custodian to employ subcustodians or agents and to
deposit all or any part of such assets in a system or systems for the central
handling of securities and debt instruments, 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, set record dates or times for the
determination of Shareholders or various of them with respect to various
matters; they may compensate or provide for the compensation of the Trustees,
officers, advisers, administrators, custodians, other agents, consultants and
employees of the Trust or the Trustees on such terms as they deem appropriate;
and in general they may delegate to any officer of the Trust, to any committee
of the Trustees and to any employee, adviser, administrator, distributor,
depository, custodian, transfer and dividend disbursing agent, or any other
agent or consultant of the Trust such authority, powers, functions and duties as
they consider desirable or appropriate for the conduct of the business and
affairs of the Trust, including without implied limitation the power and
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 and to the extent not inconsistent with
the 1940 Act or other applicable law, the Trustees shall have power and
authority:
(a) Investments. To invest and reinvest cash and other property,
and to hold cash or other property uninvested without in any
event being bound or limited by any
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present or future law or custom in regard to investments by
trustees;
(b) Disposition of Assets. To sell, exchange, lend, pledge,
mortgage, hypothecate, write options on and lease any or all
of the assets of the Trust;
(c) Ownership Powers. To vote or give assent, or exercise
any rights of ownership, with respect to stock or other
securities, debt instruments or property; and to
execute and deliver proxies or powers of attorney to
such person or persons as the Trustees shall deem
proper, granting to such person or persons such power
and discretion with relation to securities, debt
instruments or property as the Trustees shall deem
proper;
(d) Subscription. To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of
securities or debt instruments;
(e) Form of Holding. To hold any security, debt instrument or
property in a form not indicating any trust, whether in
bearer, unregistered or other negotiable form, or in the name
of the Trustees or of the Trust or in the name of a custodian,
subcustodian or other depository or a nominee or nominees or
otherwise;
(f) Reorganization, etc. To consent to or participate in
any plan for the reorganization, consolidation or
merger of any corporation or issuer, any security or
debt instrument of which is or was held in the Trust;
to consent to any contract, lease, mortgage, purchase
or sale of property by such corporation or issuer, and
to pay calls or subscriptions with respect to any
security or debt instrument held in the Trust;
(g) Voting Trusts, etc. To join with other holders of any
securities or debt instruments in acting through a
committee, 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, any such committee, depository or
trustee, and to delegate to them such power and
authority with relation to any security or debt
instrument (whether or not so deposited or transferred)
as the Trustees shall deem proper, and to agree to pay,
and to pay, such portion of the expenses and
compensation of such committee, depository or trustee
as the Trustees shall deem proper;
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(h) Compromise. To compromise, arbitrate or otherwise adjust
claims in favor of or against the Trust or any matter in
controversy, including but not limited to claims for taxes;
(i) Partnerships, etc. To enter into joint ventures, general or
limited partnerships and any other combinations or
associations;
(j) Borrowing and Security. To borrow funds and to mortgage and
pledge the assets of the Trust or any part thereof to secure
obligations arising in connection with such borrowing;
(k) Guarantees, etc. To endorse or guarantee the payment of any
notes or other obligations of any person; to make contracts of
guaranty or suretyship, or otherwise assume liability for
payment thereof; and to mortgage and pledge the Trust property
or any part thereof to secure any of or all such obligations;
(l) Insurance. To purchase and pay for entirely out of
Trust property such insurance as they may deem
necessary or appropriate for the conduct of the
business, including, without limitation, insurance
policies insuring the assets of the Trust and payment
of distributions and principal on its portfolio
investments, and insurance policies insuring the
Shareholders, Trustees, officers, employees, agents,
consultants, investment advisers, managers,
administrators, distributors, principal underwriters,
or independent contractors, or any thereof (or any
person connected therewith), of the Trust individually
against all claims and liabilities of every nature
arising by reason of holding, being or having held any
such office or position, or by reason of any action
alleged to have been taken or omitted by any such
person in any such capacity, including any action taken
or omitted that may be determined to constitute
negligence, whether or not the Trust would have the
power to indemnify such person against such liability;
and
(m) Pensions, etc. To pay pensions for faithful service,
as deemed appropriate by the Trustees, and to adopt,
establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, 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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Except as otherwise provided by the 1940 Act or other applicable law,
this Restated Declaration of Trust or the Bylaws, any action to be taken by the
Trustees may be taken by a majority of the Trustees present at a meeting of
Trustees (a quorum, consisting of at least a majority of the Trustees then in
office, being present), within or without Massachusetts, including any meeting
held by means of a conference telephone or other communications equipment by
means of which all persons participating in the meeting can hear each other at
the same time and participation by such means shall constitute presence in
person at a meeting, or by written consents of a majority of the Trustees then
in office.
Section 3.3 CERTAIN CONTRACTS. Subject to compliance with the
provisions of the 1940 Act, but notwithstanding any limitations of present and
future law or custom in regard to delegation of powers by trustees generally,
the Trustees may, at any time and from time to time and without limiting the
generality of their powers and authority otherwise set forth herein, enter into
one or more contracts with any one or more corporations, trusts, associations,
partnerships, limited partnerships, other type of organizations, or individuals
("Contracting Party") to provide for the performance and assumption of some or
all of the following services, duties and responsibilities to, for or of the
Trust and/or the Trustees, and to provide for the performance and assumption of
such other services, duties and responsibilities in addition to those set forth
below as the Trustees may determine appropriate:
(a) Advisory. Subject to the general supervision of the
Trustees and in conformity with the stated policy of
the Trustees with respect to the investments of the
Trust or of the assets belonging to any Series of
Shares of the Trust (as that phrase is defined in
subsection (a) of Section 4.2), to manage such
investments and assets, make investment decisions with
respect thereto, and to place purchase and sale orders
for portfolio transactions relating to such investments
and assets;
(b) Administration. Subject to the general supervision of
the Trustees and in conformity with any policies of the
Trustees with respect to the operations of the Trust,
to supervise all or any part of the operations of the
Trust, and to provide all or any part of the
administrative and clerical personnel, office space and
office equipment and services appropriate for the
efficient administration and operations of the Trust;
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(c) Distribution. To distribute the Shares of the Trust, to be
principal underwriter of such Shares, and/or to act as agent
of the Trust in the sale of Shares and the acceptance or
rejection of orders for the purchase of Shares;
(d) Custodian and Depository. To act as depository for and to
maintain custody of the property of the Trust and accounting
records in connection therewith;
(e) Transfer and Dividend Disbursing Agency. To maintain records
of the ownership of outstanding Shares, the issuance and
redemption and the transfer thereof, and to disburse any
dividends declared by the Trustees and in accordance with the
policies of the Trustees and/or the instructions of any
particular Shareholder to reinvest any such dividends;
(f) Shareholder Servicing. To provide service with respect to the
relationship of the Trust and its Shareholders, records with
respect to Shareholders and their Shares, and similar matters;
and
(g) Accounting. To handle all or any part of the accounting
responsibilities, whether with respect to the Trust's
properties, Shareholders or otherwise.
The same person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or in
addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine.
Subject to the provisions of the 1940 Act, the fact that:
(i) any of the Shareholders, Trustees or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee,
manager, adviser, principal underwriter or distributor or agent of or
for any 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
that
(ii) any Contracting Party may have a contract providing for
the rendering of any similar services to one or more other
corporations, trusts, associations, partnerships, limited partnerships
or other organizations, or has other business or interests,
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shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the 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 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 (1) 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), (2) 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 (3) 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.
Section 3.4 PAYMENT OF TRUST EXPENSES AND COMPENSATION OF TRUSTEES. The
Trustees are authorized to pay or to cause to be paid out of the principal or
income of the Trust, or partly out of principal and partly out of income, and to
charge or allocate the same to, between or among such one or more of the Series
that may be established and designated pursuant to Article IV, as the Trustees
deem fair, all expenses, fees, charges, taxes and liabilities incurred or
arising in connection with the Trust, or in connection with the management
thereof, including, but not limited to, the Trustees' compensation and such
expenses and charges for the services of the Trust's officers, employees,
investment adviser, administrator, distributor, principal underwriter, auditor,
counsel, depository, custodian, transfer agent, dividend disbursing agent,
accounting agent, Shareholder servicing agent, and such other agents,
consultants, and independent contractors and such other expenses and charges as
the Trustees may deem necessary or proper to incur. Without limiting the
generality of any other provision hereof, the Trustees shall be entitled to
reasonable compensation from the Trust for their services as Trustees and may
fix the amount of such compensation.
Section 3.5 OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the
assets of the Trust shall at all times be considered as vested in the Trustees.
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ARTICLE IV
SHARES
Section 4.1 DESCRIPTION OF SHARES. The beneficial interest in the Trust
shall be divided into Shares, all without par value and of one class, but the
Trustees shall have the authority from time to time to divide the class of
Shares into two or more Series of Shares (including without limitation those
Series specifically established and designated in Section 4.2), as they deem
necessary or desirable, to establish and designate such Series, and to fix and
determine the relative rights and preferences as between the different Series of
Shares as to right of redemption and the price, terms and manner of redemption,
special and relative rights as to dividends and other distributions and on
liquidation, sinking or purchase fund provisions, conversion rights, and
conditions under which the several Series shall have separate voting rights or
no voting rights. Except as aforesaid all Shares of the different Series shall
be identical.
The Shares of each Series may be issued or reissued from time to time
in one or more sub-series ("Sub-Series"), as determined by the Board of Trustees
pursuant to resolution. Each Sub-Series shall be appropriately designated, prior
to the issuance of any shares thereof, by some distinguishing letter, number or
title. All Shares within a Sub-Series shall be alike in every particular. All
Shares of each Series shall be of equal rank and have the same powers,
preferences and rights, and shall be subject to the same qualifications,
limitations and restrictions without distinction between the shares of different
Sub-Series thereof, except with respect to such differences among such
Sub-Series as the Board of Trustees shall from time to time determine to be
necessary to comply with the 1940 Act or other applicable laws, including
differences in the rate or rates of dividends or distributions. The Board of
Trustees may from time to time increase the number of Shares allocated to any
Sub-Series already created by providing that any unissued Shares of the
applicable Series shall constitute part of such Sub-Series, or may decrease the
number of Shares allocated to any Sub-Series already created by providing that
any unissued Shares previously assigned to such Sub-Series shall no longer
constitute part thereof. The Board of Trustees is hereby empowered to classify
or reclassify from time to time any unissued Shares of each Series by fixing or
altering the terms thereof and by assigning such unissued shares to an existing
or newly created Sub-Series. Notwithstanding anything to the contrary in this
paragraph the Board of Trustees is hereby empowered (i) to redesignate any
issued Shares of any Series by assigning a distinguishing letter, number or
title to such shares and (ii) to reclassify all or any part of the issued Shares
of any Series to make them part of an existing or newly created Sub-Series.
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The number of authorized Shares that may be issued is unlimited, and
the Trustees may issue Shares of any Series 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 (h) of Section 4.2). The Trustees may
classify or reclassify any unissued Shares or any Shares previously issued and
reacquired of any Series into one or more Series that may be established and
designated from time to time. The Trustees may hold as treasury Shares (of the
same or some other Series), reissue for such consideration and on such terms as
they may determine, or cancel, at their discretion from time to time, any Shares
of any Series reacquired by the Trust.
The Trustees may from time to time close the transfer books or
establish record dates and times for the purposes of determining the holders of
Shares entitled to be treated as such, to the extent required for the operation
of the Trust.
The establishment and designation of any Series of Shares in addition
to those established and designated in Section 4.2, or of any Sub-Series of
shares, shall be effective upon the execution by a majority of the then Trustees
of an instrument setting forth such establishment and designation and the
relative rights and preferences of such Series or Sub-Series, or as otherwise
provided in such instrument. At any time that there are no Shares outstanding of
any particular Series or Sub-Series previously established and designated the
Trustees may by an instrument executed by a majority of their number abolish
that Series or Sub-Series and the establishment and designation thereof. Each
instrument referred to in this paragraph shall have the status of an amendment
to this Restated Declaration of Trust.
Any Trustee, officer or other agent of the Trust, and any organization
in which any such person is interested may acquire, own, hold and dispose of
Shares of any Series of the Trust to the same extent as if such person were not
a Trustee, officer or other agent of the Trust; and the Trust may issue and sell
or cause to be issued and sold and may purchase Shares of any Series from any
such person or any such organization subject only to the general limitations,
restrictions or other provisions applicable to the sale or purchase of Shares of
such Series generally.
Section 4.2 ESTABLISHMENT AND DESIGNATION OF SERIES. Without limiting
the authority of the Trustees set forth in Section 4.1 to establish and
designate any further Series, the Trustees hereby establish and designate four
Series of Shares:
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the "Short Term Government Income Fund," the "Intermediate Term Government
Income Fund," the "Institutional Government Income Fund" and the "Adjustable
Rate U.S. Government Securities Fund." The Short Term Government Income Fund
Shares, the Intermediate Term Government Income Fund Shares, the Institutional
Government Income Fund Shares, the Adjustable Rate U.S. Government Securities
Fund Shares and any Shares of any further Series that may from time to time be
established and designated by the Trustees shall (unless the Trustees otherwise
determine with respect to some further Series or Sub-Series at the time of
establishing and designating the same) have the following relative rights and
preferences:
(a) Assets Belonging to Series. All consideration received
by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which
such consideration is invested or reinvested, all
income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange
or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall irrevocably
belong 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,
including any proceeds derived from the sale, exchange
or liquidation of such assets, and any funds or
payments derived from any reinvestment of such
proceeds, in whatever form the same may be, together
with any General Items allocated to that Series as
provided in the following sentence, are herein referred
to as "assets belonging to" that Series. In the event
that there are any assets, income, earnings, profits,
and proceeds thereof, funds, or payments which are not
readily identifiable as belonging to any particular
Series (collectively "General Items"), the Trustees
shall allocate such General Items to and among any one
or more of the Series established and designated from
time to time in such manner and on such basis as they,
in their sole discretion, deem fair and equitable; and
any General Items so allocated to a particular Series
shall belong to that Series. Each such allocation by
the Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes.
The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall
be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding
upon the Shareholders.
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(b) Liabilities Belonging to Series. The assets belonging
to each particular Series shall be charged with the
liabilities of the Trust in respect of that Series and
all expenses, costs, charges and reserves attributable
to that Series, and any general liabilities, expenses,
costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular
Series shall be allocated and charged by the Trustees
to and among any one or more of the Series established
and designated from time to time in such manner and on
such basis as the Trustees in their sole discretion
deem fair and equitable. The liabilities, expenses,
costs, charges and reserves allocated and so charged to
a Series are herein referred to as "liabilities
belonging to" that Series. Each allocation of
liabilities, expenses, costs, charges and reserves by
the Trustees shall be conclusive and binding upon the
holders of all Series for all purposes.
(c) Dividends. Dividends and distributions on Shares of a
particular Series may be paid with such frequency as
the Trustees may determine, which may be daily or
otherwise pursuant to a standing resolution or
resolutions adopted only once or with such frequency as
the Trustees may determine, to the holders of Shares of
that Series, from such of the income and capital gains,
accrued or realized, from the assets belonging to that
Series, as the Trustees may determine, after providing
for actual and accrued liabilities belonging to that
Series. All dividends and distributions on Shares of a
particular Series shall be distributed pro rata to the
holders of that Series in proportion to the number of
Shares of that Series held by such holders at the date
and time of record established for the payment of such
dividends or distributions, except that in connection
with any dividend or distribution program or procedure
the Trustees may determine that no dividend or
distribution shall be payable on 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, and except
that if Sub-Series have been established for any
Series, the rate of dividends or distributions may vary
among such Sub-Series pursuant to resolution, which may
be a standing resolution, of the Board of Trustees.
Such dividends and distributions may be made in cash or
Shares 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
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or distribution paid in Shares will be paid at the net asset
value thereof as determined in accordance with subsection (h)
of Section 4.2.
The Trust intends to qualify as a "regulated investment
company" under the Internal Revenue Code of 1954, as amended,
or any successor or comparable statute thereto, and
regulations promulgated thereunder. Inasmuch as the
computation of net income and gains for federal income tax
purposes may vary from the computation thereof on the books of
the Trust, the Board of Trustees shall have the power, in its
sole discretion, to distribute in any fiscal year as
dividends, including dividends designated in whole or in part
as capital gains distributions, amounts sufficient, in the
opinion of the Board of Trustees, to enable the Trust to
qualify as a regulated investment company and to avoid
liability of the Trust for federal income tax in respect of
that year. However, nothing in the foregoing shall limit the
authority of the Board of Trustees to make distributions
greater than or less than the amount necessary to qualify as a
regulated investment company and to avoid liability of the
Trust for such tax.
(d) Liquidation. In event of the liquidation or
dissolution of the Trust, the Shareholders of each
Series that has been established and designated shall
be entitled to receive, as a Series, when and as
declared by the Trustees, the excess of the assets
belonging to that Series over the liabilities belonging
to that Series. The assets so distributable to the
Shareholders of any particular Series shall be
distributed among such Shareholders in proportion to
the number of Shares of that Series held by them and
recorded on the books of the Trust. The liquidation of
any particular Series may be authorized by vote of a
majority of the Trustees then in office subject to the
approval of a majority of the outstanding voting
securities, as defined in the 1940 Act, (Shares) of
that Series.
(e) Voting. All shares of all Series shall have "equal
voting rights" as such term is defined in the 1940 Act
and except as otherwise provided by that Act or rules,
regulations or orders promulgated thereunder. On each
matter submitted to a vote of the Shareholders, each
Series shall vote as a separate series except as to any
matter with respect to which a vote of all Series
voting as a single series is required by the 1940 Act
or rules and regulations promulgated thereunder, or
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would be required under the Massachusetts Business Corporation
Law if the Trust were a Massachusetts business corporation. As
to any matter which does not affect the interest of a
particular Series, only the holders of Shares of the one or
more affected Series shall be entitled to vote.
(f) Redemption by Shareholder. Each holder of Shares of a
particular Series shall have the right at such times as
may be permitted by the Trust, but no less frequently
than once each week, to require the Trust to redeem all
or any part of his Shares of that Series at a
redemption price equal to the net asset value per Share
of that Series next determined in accordance with
subsection (h) of this Section 4.2 after the Shares are
properly tendered for redemption. Payment of the
redemption price shall be in cash; provided, however,
that if the Trustees determine, which determination
shall be conclusive, that conditions exist which make
payment wholly in cash unwise or undesirable, the Trust
may make payment wholly or partly in securities or
other assets belonging to the Series of which the
Shares being redeemed are part at the value of such
securities or assets used in such determination of net
asset value.
Notwithstanding the foregoing, the Trust may postpone payment
of the redemption price and may suspend the right of the
holders of Shares of any Series to require the Trust to redeem
Shares of that Series during any period or at any time when
and to the extent permissible under the 1940 Act, and such
redemption is conditioned upon the Trust having funds or
property legally available therefor.
(g) Redemption by Trust. Each Share of each Series that
has been established and designated is subject to
redemption by the Trust at the redemption price which
would be applicable if such Share was then being
redeemed by the Shareholder pursuant to subsection (f)
of this Section 4.2 at any time if the Trustees
determine in their sole discretion that failure to so
redeem may have materially adverse consequences to all
or any of the holders of the Shares, or any Series
thereof, of the Trust, and upon such redemption the
holders of the Shares so redeemed shall have no further
right with respect thereto other than to receive
payment of such redemption price. In addition, the
Board of Trustees, in its sole discretion, may require
a Shareholder to redeem all of his Shares of any Series
within thirty days after the end of a calendar quarter,
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if the value of all of his shares of that Series at the end of
said calendar quarter is less than the minimum amount
established from time to time by the Board of Trustees.
(h) Net Asset Value. The net asset value per Share of any
Series shall be the quotient obtained by dividing the
value of the net assets of that Series (being the value
of the assets belonging to that Series less the
liabilities belonging to that Series) by the total
number of Shares of that Series outstanding, all
determined in accordance with the methods and
procedures, including without limitation those with
respect to rounding, established by the Trustees from
time to time.
The Trustees may determine to maintain the net asset value per
Share of any Series 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 Series as dividends payable in additional
Shares of that Series at the designated constant dollar amount
and for the handling of any losses attributable to that
Series. 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 Series 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 Series 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 the
Trust, to make the contribution referred to in the preceding
sentence in the event of any such loss.
(i) Transfer. All Shares of each particular Series shall
be transferable, but transfers of Shares of a
particular Series will be recorded on the Share
transfer records of the Trust applicable to that Series
only at such times as Shareholders shall have the right
to require the Trust to redeem Shares of that Series
and at such other times as may be permitted by the
Trustees.
(j) Equality. All Shares of each particular Series shall represent
an equal proportionate interest in the assets belonging to
that Series (subject to the liabilities belonging to that
Series), and each Share of any particular Series shall be
equal to each other Share of
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that Series; but the provisions of this sentence shall not
restrict any distinctions permissible under subsection (c) of
this Section 4.2 that may exist with respect to dividends and
distributions on Shares of the same Series. The Trustees may
from time to time divide or combine the Shares of any
particular Series into a greater or lesser number of Shares of
that Series without thereby changing the proportionate
beneficial interest in the assets belonging to that Series or
in any way affecting the rights of Shares of any other Series.
(k) Fractions. Any fractional Share of any Series or Sub- Series,
if any such fractional Share is outstanding, shall carry
proportionately all the rights and obligations of a whole
Share of that Series or Sub- Series, including with respect to
voting, receipt of dividends and distributions, redemption of
Shares, and liquidation of the Trust.
(l) Conversion Rights. Subject to compliance with the requirements
of the 1940 Act, the Trustees shall have the authority to
provide that holders of Shares of any Series shall have the
right to convert said Shares into Shares of one or more other
Series of Shares in accordance with such requirements and
procedures as may be established by the Trustees.
Section 4.3 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 Series
that has been established and designated. No certificates certifying the
ownership of Shares need be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they consider
appropriate for the issuance of Share certificates, the use of facsimile
signatures, the transfer of Shares and similar matters. The record books of the
Trust as kept by the Trust or any transfer or similar agent, as the case may be,
shall be conclusive as to who are the Shareholders and as to the number of
Shares of each Series and Sub-Series held from time to time by each such
Shareholder.
Section 4.4 INVESTMENTS IN THE TRUST. The Trustees may accept
investments in the Trust from such persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any distributor,
principal underwriter, custodian, transfer agent or other person to accept
orders for the purchase of Shares that conform to such authorized terms and to
reject any purchase orders for Shares whether or not conforming to such
authorized terms.
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Section 4.5 NO PREEMPTIVE RIGHTS. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust.
Section 4.6 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 nor entitle the
representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to the
rights of said decedent under this Trust. Ownership of Shares shall not entitle
the Shareholder to any title in or to the whole or any part of the Trust
property or right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust shall have any power to bind personally any Shareholder, nor except
as specifically provided herein to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 VOTING POWERS. The Shareholders shall have power to vote
only (i) for the election or removal of Trustees as provided in Section 3.1,
(ii) with respect to any contract with a Contracting Party as provided in
Section 3.3 as to which Shareholder approval is required by the 1940 Act, (iii)
with respect to any termination or reorganization of the Trust or any Series to
the extent and as provided in Sections 7.1 and 7.2, (iv) with respect to any
amendment of this Restated Declaration of Trust to the extent and as provided in
Section 7.3, (v) to the same extent as the stockholders of a Massachusetts
business corporation as to whether or not a court action, proceeding or claim
should or should not be brought or maintained derivatively or as a class action
on behalf of the Trust or the Shareholders, and (vi) with respect to such
additional matters relating to the Trust as may be required by the 1940 Act,
this Restated Declaration of Trust, the Bylaws or any registration of the Trust
with the Commission (or any successor agency) or any state, or as the Trustees
may consider necessary or desirable. There shall be no cumulative voting in the
election of any Trustee or Trustees. Shares may be voted in person or by proxy.
A proxy with respect to Shares held in the name of two or more persons shall be
valid
- 19 -
if executed by any one of them unless at or prior to exercise of the proxy the
Trust receives a specific written notice to the contrary from any one of them. A
proxy purporting to be executed by or on behalf of a Shareholder shall be deemed
valid unless challenged at or prior to its exercise and the burden of proving
invalidity shall rest on the challenger. Until Shares are issued, the Trustees
may exercise all rights of Shareholders and may take any action required by law,
this Restated Declaration of Trust or the Bylaws to be taken by Shareholders.
Section 5.2 MEETINGS. Meetings (including meetings involving only the
holders of Shares of one or more but less than all Series) of Shareholders may
be called by the Trustees from time to time for the purpose of taking action
upon any matter requiring the vote or authority of the Shareholders as herein
provided or upon any other matter deemed by the Trustees to be necessary or
desirable. Written notice of any meeting of Shareholders shall be given or
caused to be given by the Trustees by mailing such notice at least seven days
before such meeting, postage prepaid, stating the time, place and purpose of the
meeting, to each Shareholder at the Shareholder's address as it appears on the
records of the Trust. The Trustees shall promptly call and give notice of a
meeting of Shareholders for the purpose of voting upon removal of any Trustee of
the Trust when requested to do so in writing by Shareholders holding not less
than 10% of the Shares then outstanding. If the Trustees shall fail to call or
give notice of any meeting of Shareholders (including a meeting involving only
the holders of Shares of one or more but less than all Series) for a period of
30 days after written application by Shareholders holding at least 25% of the
Shares then outstanding requesting a meeting be called for any other purpose
requiring action by the Shareholders as provided herein or in the Bylaws, then
Shareholders holding at least 25% of the Shares then outstanding may call and
give notice of such meeting, and thereupon the meeting shall be held in the
manner provided for herein in case of call thereof by the Trustees."
Section 5.3 RECORD DATES. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, or who are entitled to participate in any dividend or distribution, or
for the purpose of any other action, the Trustees may from time to time close
the transfer books for such period, not exceeding 30 days (except at or in
connection with the termination of the Trust), as the Trustees may determine; or
without closing the transfer books the Trustees may fix a date and time not more
than 60 days prior to the date of any meeting of Shareholders or other action as
the date and time of record for the determination of Shareholders entitled to
vote at such meeting or any adjournment thereof 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
- 20 -
fixed shall be entitled to vote at such meeting or any adjournment thereof or
(subject to any provisions permissible under subsection (c) of Section 4.2 with
respect to dividends or distributions on Shares that have not been ordered
and/or paid for by the time or times established by the Trustees under the
applicable dividend or distribution program or procedure then in effect) to be
treated as a Shareholder of record for purposes of such other action, even
though he has since that date and time disposed of his Shares, and no
Shareholder becoming such after that date and time shall be so entitled to vote
at such meeting or any adjournment thereof or to be treated as a Shareholder of
record for purposes of such other action.
Section 5.4 QUORUM AND REQUIRED VOTE. A majority of the Shares entitled
to vote shall be a quorum for the transaction of business at a Shareholders'
meeting,but any lesser number shall be sufficient for adjournments. Any
adjourned session or sessions may be held, within a reasonable time after the
date set for the original meeting without the necessity of further notice. A
majority of the Shares voted, at a meeting of which a quorum is present, shall
decide any questions and a plurality shall elect a Trustee, except when a
different vote is required or permitted by any provision of the 1940 Act or
other applicable law or by this Declaration of Trust or the Bylaws.
Notwithstanding any provision of applicable law requiring a greater proportion
than a majority of the votes entitled to be case in order to take or authorize
any action (unless otherwise provided in this Declaration of Trust or the
Bylaws), any such action may be taken or authorized upon the concurrence of at
least a majority of the aggregate number of votes entitled to be cast thereon.
Section 5.5 ACTION BY WRITTEN CONSENT. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if a majority of Shareholders entitled to vote on the matter
(or such other proportion thereof as shall be required by the 1940 Act or by any
express provision of this Declaration of Trust or the Bylaws) consent to the
action in writing and such written consents are filed with the records of the
meetings of Shareholders. Such consent shall be treated for all purposes as a
vote taken at a meeting of Shareholders.
Section 5.6 INSPECTION OF RECORDS. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is permitted
stockholders of a Massachusetts business corporation under the Massachusetts
Business Corporation Law.
Section 5.7 ADDITIONAL PROVISIONS. The Bylaws may include further
provisions for Shareholders' votes and meetings and related matters.
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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 Trust for payment under such
credit, contract or claim; and neither the Shareholders nor the Trustees, nor
any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefor. Every note, bond, contract,
instrument, certificate or undertaking and every other act or thing whatsoever
executed or done by or on behalf of the Trust or the Trustees or any of them in
connection with the Trust 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 Trustees and not personally. Nothing in this Declaration of
Trust 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.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officers or officer shall give notice that
this Declaration of Trust is on file with the Secretary of The Commonwealth of
Massachusetts and shall recite to the effect that the same was executed or made
by or on behalf of the Trust or by them as Trustees or Trustee or as officers or
officer and not individually and that the obligations of such instrument are not
binding upon any of them or the Shareholders individually but are binding only
upon the assets and property of the Trust, but the omission thereof shall not
operate to bind any Trustees or Trustee or officers or officer or Shareholders
or Shareholder individually.
Section 6.2 TRUSTEE'S GOOD FAITH ACTION; EXPERT ADVICE; NO BOND OR
SURETY. The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. A Trustee shall be liable for his own
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
- 22 -
Trustee; (b) the Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust and their
duties as Trustees, and shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such advice; and (c) in
discharging their duties, the Trustees, when acting in good faith, shall be
entitled to rely upon the books of account of the Trust and upon written reports
made to the Trustees by any officer appointed by them, any independent public
accountant, and (with respect to the subject matter of the contract involved)
any officer, partner or responsible employee of a Contracting Party appointed by
the Trustees pursuant to Section 3.3. The Trustees as such shall not be required
to give any bond or surety or any other security for the performance of their
duties.
Section 6.3 INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder
or former Shareholder 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, the 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 the Trust estate to be held harmless from and
indemnified against all loss and expense arising from such liability.
Section 6.4 INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC. The Trust shall
indemnify each of its Trustees and officers (including persons who serve at the
Trust's request as directors, officers or trustees of another organization in
which the Trust has any interest as a shareholder, creditor or otherwise, and
including persons who served as directors or officers of Midwest Income
Investment Company) (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, and except that no Covered
Person shall be indemnified against any liability to the Trust or its
Shareholders to which such Covered Person would otherwise be subject by reason
of willful misfeasance, bad faith,
- 23 -
gross negligence or reckless disregard of the duties involved in the conduct of
such Covered Person's office ("disabling conduct"). Anything herein contained to
the contrary notwithstanding, no Covered Person shall be indemnified for any
liability to the Trust or its Shareholders to which such Covered Person would
otherwise be subject unless (1) a final decision on the merits is made by a
court or other body before whom the proceeding was brought that the Covered
Person to be indemnified was not liable by reason of disabling conduct or, (2)
in the absence of such a decision, a reasonable determination is made, based
upon a review of the facts, that the Covered Person was not liable by reason of
disabling conduct, by (a) the vote of a majority of a quorum of Trustees who are
neither "interested persons" of the Company as defined in the Investment Company
Act of 1940 nor parties to the proceeding ("disinterested, non-party Trustees"),
or (b) an independent legal counsel in a written consent.
Section 6.5 ADVANCES OF EXPENSES. The Trust shall advance attorneys'
fees or other expenses incurred by a Covered Person in defending a proceeding,
upon the undertaking by or on behalf of the Covered Person to repay the advance
unless it is ultimately determined that such Covered Person is entitled to
indemnification, so long as one of the following conditions is met: (i) the
covered Person shall provide security for his 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 non-party Trustees of the Trust, or an
independent legal counsel in a written opinion, shall determine, based on a
review of readily available facts (as opposed to a full trial-type inquiry),
that there is reason to believe that the Covered Person ultimately will be found
entitled to indemnification.
Section 6.6 INDEMNIFICATION NOT EXCLUSIVE, ETC. The right of
indemnification provided by this Article VI shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used in
this Article VI, "Trust" shall include Midwest Income Investment Company,
"Covered Person" shall include such person's heirs, executors and
administrators, an "interested Covered Person" is one against whom the action,
suit or other proceeding in question or another action, suit or other proceeding
on the same or similar grounds is then or has been pending or threatened, and a
"disinterested" person is a person against whom none of such actions, suits or
other proceedings or another action, suite or other proceeding on the
same or similar grounds is then or has been pending or threatened. 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.
- 24 -
Section 6.7 LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
ARTICLE VII
MISCELLANEOUS
Section 7.1 DURATION AND TERMINATION OF TRUST. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The Trust
may be terminated at any time by a majority of the Trustees then in office
subject to t a favorable vote of a majority of the outstanding voting
securities, as defined in the 1940 Act, (Shares) of each Series voting
separately by Series.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may be
determined by the Trustees, the Trust shall in accordance with such procedures
as the Trustees consider appropriate reduce the remaining assets to
distributable form in cash, securities or other property, or any combination
thereof, and distribute the proceeds to the Shareholders, in conformity with the
provisions of subsection (d) of Section 4.2.
Section 7.2 REORGANIZATION. The Trustees may sell, convey and transfer
the assets of the Trust, or the assets belonging to any one or more Series, to
another Trust, partnership, association or corporation organized under the laws
of any state of the United States, or to the Trust to be held as assets
belonging to another Series of the Trust, in exchange for cash, shares or other
securities (including, in the case of a transfer to another Series of the Trust,
Shares of such other Series) with such transfer being made subject to, or with
the assumption by the transferee of, the liabilities belonging to each Series
the assets of which are so transferred; provided, however, that if shareholder
approval is required by the 1940 Act, no assets belonging to any particular
Series shall be so transferred unless the terms of such transfer shall have
first been approved at a meeting called for the purpose by the affirmative vote
of the holders of a majority of the outstanding voting securities, as defined in
the 1940 Act, (Shares) of that Series. Following such transfer, the Trustees
shall distribute such cash, shares or other securities (giving due effect to the
assets and liabilities belonging to and any other differences among the various
Series the assets belonging to which have so been transferred) among the
Shareholders of the Series the assets belonging to which have been so
transferred; and if all of the
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assets of the Trust have been so transferred, the Trust shall be terminated.
Section 7.3 AMENDMENTS. All rights granted to the Shareholders under
this Declaration of Trust are granted subject to the reservations of the right
to amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any 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 Declaration of Trust (whether or not related
to the rights of Shareholders) may be amended at any time by an instrument in
writing signed by a majority of the then Trustees (or by an officer of the Trust
pursuant to the vote of a majority of such Trustees), when authorized so to do
by the vote in accordance with subsection (e) of Section 4.2 of Shareholders
holding a majority of the Shares entitled to vote, except that amendments either
(a) establishing and designating any new Series of Shares not established and
designated in Section 4.2, or any Sub-Series or (b) having the purpose of
changing the name of the Trust or the name of any Shares theretofore established
and designated or of supplying any omission, curing any ambiguity or curing,
correcting or supplementing any provision hereof which is internally
inconsistent with any other provision hereof or which is defective or
inconsistent with the 1940 Act or with the requirements of the Internal Revenue
Code and applicable regulations for the Trust's obtaining the most favorable
treatment thereunder available to regulated investment companies, shall not
require authorization by Shareholder vote. Subject to the foregoing, any such
amendment shall be effective as provided in the instrument containing the terms
of such amendment or, if there is no provision therein with respect to
effectiveness, upon the execution of such instrument and of a certificate (which
may be a part of such instrument) executed by a Trustee or officer of the Trust
to the effect that such amendment has been duly adopted.
Section 7.4 FILING OF COPIES; REFERENCES; HEADINGS. The
original or a copy of this instrument and of each amendment hereto shall be kept
at the office of the Trust where it may be inspected by any Shareholder. A copy
of this instrument and of each amendment hereto shall be filed by the Trust with
the Secretary of The Commonwealth of Massachusetts and with the Boston City
Clerk, as well as any other governmental office where such filing may from time
to time be required, but the failure to make any such filing shall not impair
the effectiveness of this instrument or any such amendment. Anyone dealing with
the Trust may rely on a certificate by an officer of the Trust as to whether or
not any such amendments have been made, as to the identities of the Trustees and
officers, and as to any matters in
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connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this instrument or of any such amendments. In this instrument and in any such
amendment, references to this instrument, and all expressions like "herein,"
"hereof" and "hereunder" shall be deemed to refer to this instrument as a whole
as the same may be amended or affected by any such amendments. The masculine
gender shall include the feminine and neuter genders. Headings are placed herein
for convenience of reference only and shall not be taken as a part hereof or
control or affect the meaning, construction or effect of this instrument. This
instrument may be executed in any number of counterparts each of which shall be
deemed an original.
Section 7.5 APPLICABLE LAW. This Declaration of Trust is made in The
Commonwealth of Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said Commonwealth,
including the Massachusetts Business Corporation Law as the same may be amended
from time to time, to which reference is made with the intention that matters
not specifically covered herein or as to which an ambiguity may exist shall be
resolved as if the Trust were a business corporation organized in Massachusetts,
but the reference to said Business Corporation Law is not intended to give the
Trust, the Trustees, the 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 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.
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IN WITNESS WHEREOF, the undersigned Trustees, for themselves and their
respective successors and assigns, have executed one or more counterparts of
this Restated Agreement and Declaration of Trust under seal as of the day and
year first above written.
/s/ Xxxxxx X. Xxxxxxx
---------------------------
XXXXXX X. XXXXXXX
/s/ G. Xxxxxxx Xxxxx
---------------------------
G. XXXXXXX XXXXX
/s/ H. Xxxxxx Xxxxxx
----------------------------
H. XXXXXX XXXXXX
/s/ Xxxxx X. Xxxxxxxxx
----------------------------
XXXXX X. XXXXXXXXX
/s/ Xxxxx X. Xxxxxx
----------------------------
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxxx
-----------------------------
XXXXX X. XXXXXXX
-----------------------------
XXXXX X. XXXXX
/s/ Xxxx X. Xxxxxxx
-----------------------------
XXXX X. XXXXXXX
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