PREMIER GNMA FUND
Amended and Restated Agreement and Declaration of Trust
THIS AMENDED AND RESTATED AGREEMENT AND
DECLARATION OF TRUST, made this 24th day of July, 1992,
hereby amends and restates in its entirety the Agreement
and Declaration of Trust made at Boston, Massachusetts,
dated September 19, 1986, by the Trustees hereunder
(hereinafter with any additional and successor trustees
referred to as the "Trustees") and by the holders of
shares of beneficial interest to be issued hereunder as
hereinafter provided.
W I T N E S S E T H :
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 pro rata benefit of the holders from
time to time of Shares, whether or not certificated, in
this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as
"Premier GNMA Fund."
Section 2. Definitions. Whenever used herein,
unless otherwise required by the context or specifically
provided:
(a) The term "Commission" shall have the
meaning provided in the 1940 Act;
(b) The "Trust" refers to the Massachusetts
business trust established by this Agreement and
Declaration of Trust, as amended from time to time;
(c) "Shareholder" means a record owner of
Shares of the Trust;
(d) "Shares" means the equal proportionate
transferable units of interest into which the beneficial
interest in the Trust shall be divided from time to time
or, if more than one series or class of Shares is
authorized by the Trustees, the equal proportionate
transferable units into which each series or class of
Shares shall be divided from time to time, and includes a
fraction of a Share as well as a whole Share;
(e) The "1940 Act" refers to the Investment
Company Act of 1940, and the Rules and Regulations
thereunder, all as amended from time to time;
(f) The term "Manager" is defined in
Article IV, Section 5;
(g) The term "Person" shall mean an individual
or any corporation, partnership, joint venture, trust or
other enterprise;
(h) "Declaration of Trust" shall mean this
Agreement and Declaration of Trust as amended or restated
from time to time;
(i) "Bylaws" shall mean the Bylaws of the
Trust as amended from time to time;
(j) The term "series" or "series of Shares"
refers to the one or more separate investment portfolios
of the Trust into which the assets and liabilities of the
Trust may be divided and the Shares of the Trust
representing the beneficial interest of Shareholders in
such respective portfolios; and
(k) The term "class" or "class of Shares"
refers to the division of Shares representing any series
into two or more classes as provided in Article III,
Section 1 hereof.
ARTICLE II
Purposes of Trust
This Trust is formed for the following purpose
or purposes:
(a) to conduct, operate and carry on the
business of an investment company;
(b) to subscribe for, invest in, reinvest in,
purchase or otherwise acquire, hold, pledge, sell,
assign, transfer, lend, write options on, exchange,
distribute or otherwise dispose of and deal in and with
securities of every nature, kind, character, type and
form, including, without limitation of the generality of
the foregoing, all types of stocks, shares, futures
contracts, bonds, debentures, notes, bills and other
negotiable or non-negotiable instruments, obligations,
evidences of interest, certificates of interest,
certificates of participation, certificates, interests,
evidences of ownership, guarantees, warrants, options or
evidences of indebtedness issued or created by or
guaranteed as to principal and interest by any state or
local government or any agency or instrumentality
thereof, by the United States Government or any agency,
instrumentality, territory, district or possession
thereof, by any foreign government or any agency,
instrumentality, territory, district or possession
thereof, by any corporation organized under the laws of
any state, the United States or any territory or
possession thereof or under the laws of any foreign
country, bank certificates of deposit, bank time
deposits, bankers' acceptances and commercial paper; to
pay for the same in cash or by the issue of stock,
including treasury stock, bonds or notes of the Trust or
otherwise; 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, firms, associations or
corporations to exercise any of said rights, powers and
privileges in respect of any said instruments;
(c) to borrow money or otherwise obtain credit
and to secure the same by mortgaging, pledging or
otherwise subjecting as security the assets of the Trust;
(d) to issue, sell, repurchase, redeem,
retire, cancel, acquire, hold, resell, reissue, dispose
of, transfer, and otherwise deal in, Shares including
Shares in fractional denominations, and to apply to any
such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or other assets of the
appropriate series or class of Shares, whether capital or
surplus or otherwise, to the full extent now or hereafter
permitted by the laws of The Commonwealth of Massachu-
setts;
(e) to conduct its business, promote its
purposes, and carry on its operations in any and all of
its branches and maintain offices both within and without
The Commonwealth of Massachusetts, in any and all States
of the United States of America, in the District of
Columbia, and in any other parts of the world; and
(f) to do all and everything necessary,
suitable, convenient, or proper for the conduct,
promotion, and attainment of any of the businesses and
purposes herein specified or which at any time may be
incidental thereto or may appear conducive to or
expedient for the accomplishment of any of such
businesses and purposes and which might be engaged in or
carried on by a Trust organized under the Massachusetts
General Laws, and to have and exercise all of the powers
conferred by the laws of The Commonwealth of Massachu-
setts upon a Massachusetts business trust.
The foregoing provisions of this Article II
shall be construed both as purposes and powers and each
as an independent purpose and power.
ARTICLE III
Beneficial Interest
Section 1. Shares of Beneficial Interest. The
Shares of the Trust shall be issued in one or more series
as the Trustees may, without Shareholder approval,
authorize. Each series shall be preferred over all other
series in respect of the assets allocated to that series
and shall represent a separate investment portfolio of
the Trust. The beneficial interest in each series at all
times shall be divided into Shares, with or without par
value as the Trustees may from time to time determine,
each of which shall, except as provided in the following
sentence, represent an equal proportionate interest in
the series with each other Share of the same series, none
having priority or preference over another. The Trustees
may, without Shareholder approval, divide Shares of any
series into two or more classes, Shares of each such
class having such preferences and special or relative
rights and privileges (including conversion rights, if
any) as the Trustees may determine. The number of Shares
authorized shall be unlimited, and the Shares so
authorized may be represented in part by fractional
shares. From time to time, the Trustees may divide or
combine the Shares of any series or class into a greater
or lesser number without thereby changing the
proportionate beneficial interests in the series or
class.
Section 2. Ownership of Shares. The ownership
of Shares will be recorded in the books of the Trust or a
transfer agent. The record books of the Trust or any
transfer agent, as the case may be, shall be conclusive
as to who are the holders of Shares of each series and
class and as to the number of Shares of each series and
class held from time to time by each. No certificates
certifying the ownership of Shares need be issued except
as the Trustees may otherwise determine from time to
time.
Section 3. Issuance of Shares. The Trustees
are authorized, from time to time, to issue or authorize
the issuance of Shares at not less than the par value
thereof, if any, and to fix the price or the minimum
price or the consideration (in cash and/or such other
property, real or personal, tangible or intangible, as
from time to time they may determine) or minimum
consideration for such Shares. Anything herein to the
contrary notwithstanding, the Trustees may issue Shares
pro rata to the Shareholders of a series at any time as a
stock dividend, except to the extent otherwise required
or permitted by the preferences and special or relative
rights and privileges of any classes of Shares of that
series, and any stock dividend to the Shareholders of a
particular class of Shares shall be made to such
Shareholders pro rata in proportion to the number of
Shares of such class held by each of them.
All consideration received by the Trust for the
issue or sale of Shares of each series, together with all
income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or
liquidation thereof, and any funds or payments derived
from any reinvestment of such proceeds in whatever form
the same may be, shall belong irrevocably to the series
of Shares with respect to which the same were received by
the Trust for all purposes, subject only to the rights of
creditors, and shall be so handled upon the books of
account of the Trust and are herein referred to as
"assets of" such series.
Shares may be issued in fractional
denominations to the same extent as whole Shares, and
Shares in fractional denominations shall be Shares having
proportionately to the respective fractions represented
thereby all the rights of whole Shares, including,
without limitation, the right to vote, the right to
receive dividends and distributions, and the right to
participate upon liquidation of the Trust or of a
particular series of Shares.
Section 4. No Preemptive Rights. Shareholders
shall have no preemptive or other right to subscribe for
any additional Shares or other securities issued by the
Trust.
Section 5. 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 same nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in
court or elsewhere against the Trust or the Trustees, but
only to the rights of said decedent under this Trust.
Ownership of Shares shall not entitle the Shareholder to
any title in or to the whole or any part of the Trust
property or right to call for a partition or division of
the same or for an accounting, nor shall the ownership of
Shares constitute the Shareholders partners. Neither the
Trust nor the Trustees, nor any officer, employee or
agent of the Trust shall have any power to bind any
Shareholder or Trustee personally or to call upon any
Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder
at any time personally may agree to pay by way of
subscription for any Shares or otherwise. Every note,
bond, contract or other undertaking issued by or on
behalf of the Trust shall include a recitation limiting
the obligation represented thereby to the Trust and its
assets or the assets of a particular series (but the
omission of such a recitation shall not operate to bind
any Shareholder or Trustee personally).
ARTICLE IV
Trustees
Section 1. Election. A Trustee may be elected
either by the Trustees or the Shareholders. The Trustees
named herein shall serve until the first meeting of the
Shareholders or until the election and qualification of
their successors. Prior to the first meeting of Share-
holders the initial Trustees hereunder may elect
additional Trustees to serve until such meeting and until
their successors are elected and qualified. The Trustees
also at any time may elect Trustees to fill vacancies in
the number of Trustees. The number of Trustees shall be
fixed from time to time by the Trustees and, at or after
the commencement of the business of the Trust, shall be
not less than three. Each Trustee, whether named above
or hereafter becoming a Trustee, shall serve as a Trustee
during the lifetime of this Trust, until such Trustee
dies, resigns, retires, or is removed, or, if sooner,
until the next meeting of Shareholders called for the
purpose of electing Trustees and the election and
qualification of his successor. Subject to Section 16(a)
of the 1940 Act, the Trustees may elect their own
successors and, pursuant to this Section, may appoint
Trustees to fill vacancies.
Section 2. Powers. The Trustees shall have
all powers necessary or desirable to carry out the
purposes of the Trust, including, without limitation, the
powers referred to in Article II hereof. Without
limiting the generality of the foregoing, the Trustees
may adopt By-Laws not inconsistent with this Declaration
of Trust providing for the conduct of the business of the
Trust and may amend and repeal them to the extent that
they do not reserve that right to the Shareholders; they
may fill vacancies in their number, including vacancies
resulting from increases in their own number, and may
elect and remove such officers and employ, appoint and
terminate such employees or agents as they consider
appropriate; they may appoint from their own number and
terminate any one or more committees; they may employ one
or more custodians of the assets of the Trust and may
authorize such custodians to employ subcustodians and to
deposit all or any part of such assets in a system or
systems for the central handling of securities, retain a
transfer agent and a Shareholder servicing agent, or
both, provide for the distribution of Shares through a
principal underwriter or otherwise, set record dates, and
in general delegate such authority as they consider
desirable (including, without limitation, the authority
to purchase and sell securities and to invest funds, to
determine the net income of the Trust for any period, the
value of the total assets of the Trust and the net asset
value of each Share, and to execute such deeds,
agreements or other instruments either in the name of the
Trust or the names of the Trustees or as their attorney
or attorneys or otherwise as the Trustees from time to
time may deem expedient) to any officer of the Trust,
committee of the Trustees, any such employee, agent,
custodian or underwriter or to any Manager.
Without limiting the generality of the
foregoing, the Trustees shall have full power and
authority:
(a) To invest and reinvest cash and to hold
cash uninvested;
(b) 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;
(c) To hold any security or property in a form
not indicating any trust whether in bearer, unregistered
or other negotiable form or in the name of the Trust or a
custodian, subcustodian or other depository or a nominee
or nominees or otherwise;
(d) To consent to or participate in any plan
for the reorganization, consolidation or merger of any
corporation or concern, any security of which is held in
the Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation or
concern, and to pay calls or subscriptions with respect
to any security held in the Trust;
(e) 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;
(f) 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;
(g) Subject to the provisions of Article III,
Section 3, to allocate assets, liabilities, income and
expenses of the Trust to a particular series of Shares or
to apportion the same among two or more series, provided
that any liabilities or expenses incurred by a particular
series of Shares shall be payable solely out of the
assets of that series; and to the extent necessary or
appropriate to give effect to the preferences and special
or relative rights and privileges of any classes of
Shares, to allocate assets, liabilities, income and
expenses of a series to a particular class of Shares of
that series or to apportion the same among two or more
classes of Shares of that series;
(h) To enter into joint ventures, general or
limited partnerships and any other combinations or
associations;
(i) 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, investment
advisers or Managers, principal underwriters, or
independent contractors of the Trust individually against
all claims and liabilities of every nature arising by
reason of holding, being or having held any such office
or position, or by reason of any action alleged to have
been taken or omitted by any such person as Shareholder,
Trustee, officer, employee, agent, investment adviser or
Manager, principal underwriter, or independent
contractor, including any action taken or omitted that
may be determined to constitute negligence, whether or
not the Trust would have the power to indemnify such
person against such liability; and
(j) 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.
Further, without limiting the generality of the
foregoing, the Trustees shall have full power and
authority to incur and pay out of the principal or income
of the Trust such expenses and liabilities as may be
deemed by the Trustees to be necessary or proper for the
purposes of the Trust; provided, however, that all
expenses and liabilities incurred by or arising in
connection with a particular series of Shares, as
determined by the Trustees, shall be payable solely out
of the assets of that series.
Any determination made in good faith and, so
far as accounting matters are involved, in accordance
with generally accepted accounting principles by or
pursuant to the authority granted by the Trustees, as to
the amount of the assets, debts, obligations or
liabilities of the Trust or a particular series or class
of Shares; the amount of any reserves or charges set up
and the propriety thereof; the time of or purpose for
creating such reserves or charges; the use, alteration or
cancellation of any reserves or charges (whether or not
any debt, obligation or liability for which such reserves
or charges shall have been created shall have been paid
or discharged or shall be then or thereafter required to
be paid or discharged); the price or closing bid or asked
price of any investment owned or held by the Trust or a
particular series; the market value of any investment or
fair value of any other asset of the Trust or a
particular series; the number of Shares outstanding; the
estimated expense to the Trust or a particular series in
connection with purchases of its Shares; the ability to
liquidate investments in an orderly fashion; and the
extent to which it is practicable to deliver a cross-
section of the portfolio of the Trust or a particular
series in payment for any such Shares, or as to any other
matters relating to the issue, sale, purchase and/or
other acquisition or disposition of investments or Shares
of the Trust or a particular series, shall be final and
conclusive, and shall be binding upon the Trust or such
series and its Shareholders, past, present and future,
and Shares are issued and sold on the condition and
understanding that any and all such determinations shall
be binding as aforesaid.
Section 3. Meetings. At any meeting of the
Trustees, a majority of the Trustees then in office shall
constitute a quorum. Any meeting may be adjourned from
time to time by a majority of the votes cast upon the
question, whether or not a quorum is present, and the
meeting may be held as adjourned without further notice.
When a quorum is present at any meeting, a
majority of the Trustees present may take any action,
except when a larger vote is required by this Declaration
of Trust, the By-Laws or the 1940 Act.
Any action required or permitted to be taken at
any meeting of the Trustees or of any committee thereof
may be taken without a meeting, if a written consent to
such action is signed by a majority of the Trustees or
members of any such committee then in office, as the case
may be, and such written consent is filed with the
minutes of proceedings of the Trustees or any such
committee.
The Trustees or any committee designated by the
Trustees may participate in a meeting of the Trustees or
such committee by means of a conference telephone or
similar communications equipment by means of which all
persons participating in the meeting can hear each other
at the same time. Participation by such means shall
constitute presence in person at a meeting.
Section 4. Ownership of Assets of the Trust.
Title to all of the assets of each series of Shares of
the Trust at all times shall be considered as vested in
the Trustees.
Section 5. Investment Advice and Management
Services. The Trustees shall not in any way be bound or
limited by any present or future law or custom in regard
to investments by trustees. The Trustees from time to
time may enter into a written contract or contracts with
any person or persons (herein called the "Manager"),
including any firm, corporation, trust or association in
which any Trustee or Shareholder may be interested, to
act as investment advisers and/or managers of the Trust
and to provide such investment advice and/or management
as the Trustees from time to time may consider necessary
for the proper management of the assets of the Trust,
including, without limitation, authority to determine
from time to time what investments shall be purchased,
held, sold or exchanged and what portion, if any, of the
assets of the Trust shall be held uninvested and to make
changes in the Trust's investments. Any such contract
shall be subject to the requirements of the 1940 Act with
respect to its continuance in effect, its termination and
the method of authorization and approval of such
contract, or any amendment thereto or renewal thereof.
Any Trustee or any organization with which any
Trustee may be associated also may act as broker for the
Trust in making purchases and sales of securities for or
to the Trust for its investment portfolio, and may charge
and receive from the Trust the usual and customary
commission for such service. Any organization with which
a Trustee may be associated in acting as broker for the
Trust shall be responsible only for the proper execution
of transactions in accordance with the instructions of
the Trust and shall be subject to no further liability of
any sort whatever.
The Manager, or any affiliate thereof, also may
be a distributor for the sale of Shares by separate
contract or may be a person controlled by or affiliated
with any Trustee or any distributor or a person in which
any Trustee or any distributor is interested financially,
subject only to applicable provisions of law. Nothing
herein contained shall operate to prevent any Manager,
who also acts as such a distributor, from also receiving
compensation for services rendered as such distributor.
Section 6. Removal and Resignation of
Trustees. The Trustees or the Shareholders (by vote of
66-2/3% of the outstanding Shares entitled to vote
thereon) may remove at any time any Trustee with or
without cause, and any Trustee may resign at any time as
Trustee, without penalty by written notice to the Trust;
provided that sixty days' advance written notice shall be
given in the event that there are only three or fewer
Trustees at the time a notice of resignation is
submitted.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers. The Shareholders
shall have power to vote only (i) for the election of
Trustees as provided in Article IV, Section 1, of this
Declaration of Trust; provided, however, that no meeting
of Shareholders is required to be called for the purpose
of electing Trustees unless and until such time as less
than a majority of the Trustees have been elected by the
Shareholders, (ii) for the removal of Trustees as
provided in Article IV, Section 6, (iii) with respect to
any Manager as provided in Article IV, Section 5,
(iv) with respect to any amendment of this Declaration of
Trust as provided in Article IX, Section 9, (v) with
respect to a consolidation, merger or certain sales of
assets as provided in Article IX, Section 5, (vi) with
respect to the termination of the Trust or a series of
Shares as provided in Article IX, Section 6, and (vii)
with respect to such additional matters relating to the
Trust as may be required by law, by this Declaration of
Trust, or the By-Laws of the Trust or any registration of
the Trust with the Commission or any state, or as the
Trustees may consider desirable. Each whole Share shall
be entitled to one vote as to any matter on which it is
entitled to vote (except that in the election of Trustees
said vote may be cast for as many persons as there are
Trustees to be elected), and each fractional Share shall
be entitled to a proportionate fractional vote.
Notwithstanding any other provision of this Declaration
of Trust, on any matter submitted to a vote of
Shareholders, all Shares of the Trust then entitled to
vote shall be voted by individual series, except (i) when
required by the 1940 Act, Shares shall be voted in the
aggregate and not by individual series and (ii) when the
Trustees have determined that the matter affects only the
interests of one or more series or class, or as otherwise
required by applicable law, then only Shareholders of
such series or class shall be entitled to vote thereon.
There shall be no cumulative voting in the election of
Trustees. Shares may be voted in person or by proxy. A
proxy with respect to Shares held in the name of two or
more persons shall be valid if executed by any one of
them, unless at or prior to exercise of the proxy the
Trust receives a specific written notice to the contrary
from any one of them. A proxy purporting to be executed
by or on behalf of a Shareholder shall be deemed valid
unless challenged at or prior to its exercise and the
burden of proving invalidity shall rest on the
challenger. Until Shares are issued, the Trustees may
exercise all rights of Shareholders and may take any
action required by law, this Declaration of Trust or any
By-Laws of the Trust to be taken by Shareholders.
Section 2. Meetings. Meetings of the Share-
holders may be called by the Trustees or such other
person or persons as may be specified in the By-Laws and
shall be called by the Trustees upon the written request
of Shareholders owning at least 30% of the outstanding
Shares entitled to vote. Shareholders shall be entitled
to at least ten days' prior notice of any meeting.
Section 3. Quorum and Required Vote. Thirty
percent (30%) of the outstanding Shares shall be a quorum
for the transaction of business at a Shareholders'
meeting, except that where any provision of law or of
this Declaration of Trust permits or requires that
holders of any series or class shall vote as a series or
class, then thirty percent (30%) of the aggregate number
of Shares of that series or class entitled to vote shall
be necessary to constitute a quorum for the transaction
of business by that series or class. Any lesser number,
however, shall be sufficient for adjournment and any
adjourned session or sessions may be held within 90 days
after the date set for the original meeting without the
necessity of further notice. Except when a larger vote
is required by any provision of this Declaration of Trust
or the By-Laws of the Trust and subject to any applicable
requirements of law, a majority of the Shares voted shall
decide any question and a plurality shall elect a
Trustee, provided that where any provision of law or of
this Declaration of Trust permits or requires that the
holders of any series or class shall vote as a series or
class, then a majority of the Shares of that series or
class voted on the matter (or a plurality with respect to
the election of a Trustee) shall decide that matter
insofar as that series or class is concerned.
Section 4. Action by Written Consent. Any
action required or permitted to be taken at any meeting
may be taken without a meeting if a consent in writing,
setting forth such action, is signed by all the Share-
holders entitled to vote on the subject matter thereof
and such consent is filed with the records of the Trust.
Section 5. Additional Provisions. The By-Laws
may include further provisions for Shareholders' votes
and meetings and related matters.
ARTICLE VI
Distributions and Redemptions
Section 1. Distributions. The Trustees shall
distribute periodically to the Shareholders of each
series of Shares an amount approximately equal to the net
income of that series, determined by the Trustees or as
they may authorize and as herein provided. Distributions
of income may be made in one or more payments, which
shall be in Shares, cash or otherwise, and on a date or
dates and as of a record date or dates determined by the
Trustees. At any time and from time to time in their
discretion, the Trustees also may cause to be distributed
to the Shareholders of any one or more series as of a
record date or dates determined by the Trustees, in
Shares, cash or otherwise, all or part of any gains
realized on the sale or disposition of the assets of the
series or all or part of any other principal of the Trust
attributable to the series. Each distribution pursuant
to this Section 1 shall be made ratably according to the
number of Shares of the series held by the several Share-
holders on the record date for such distribution, except
to the extent otherwise required or permitted by the
preferences and special or relative rights and privileges
of any classes of Shares of that series, and any
distribution to the Shareholders of a particular class of
Shares shall be made to such Shareholders pro rata in
proportion to the number of Shares of such class held by
each of them. No distribution need be made on Shares
purchased pursuant to orders received, or for which
payment is made, after such time or times as the Trustees
may determine.
Section 2. Determination of Net Income. In
determining the net income of each series or class of
Shares for any period, there shall be deducted from
income for that period (a) such portion of all charges,
taxes, expenses and liabilities due or accrued as the
Trustees shall consider properly chargeable and fairly
applicable to income for that period or any earlier
period and (b) whatever reasonable reserves the Trustees
shall consider advisable for possible future charges,
taxes, expenses and liabilities which the Trustees shall
consider properly chargeable and fairly applicable to
income for that period or any earlier period. The net
income of each series or class for any period may be
adjusted for amounts included on account of net income in
the net asset value of Shares issued or redeemed or
repurchased during that period. In determining the net
income of a series or class for a period ending on a date
other than the end of its fiscal year, income may be
estimated as the Trustees shall deem fair. Gains on the
sale or disposition of assets shall not be treated as
income, and losses shall not be charged against income
unless appropriate under applicable accounting
principles, except in the exercise of the discretionary
powers of the Trustees. Any amount contributed to the
Trust which is received as income pursuant to a decree of
any court of competent jurisdiction shall be applied as
required by the said decree.
Section 3. Redemptions. Any Shareholder shall
be entitled to require the Trust to redeem and the Trust
shall be obligated to redeem at the option of such Share-
holder all or any part of the Shares owned by said Share-
holder, at the redemption price, pursuant to the method,
upon the terms and subject to the conditions hereinafter
set forth:
(a) Certificates for Shares, if issued, shall
be presented for redemption in proper form for transfer
to the Trust or the agent of the Trust appointed for such
purpose, and these shall be presented with a written
request that the Trust redeem all or any part of the
Shares represented thereby.
(b) The redemption price per Share shall be
the net asset value per Share when next determined by the
Trust at such time or times as the Trustees shall
designate, following the time of presentation of
certificates for Shares, if issued, and an appropriate
request for redemption, or such other time as the
Trustees may designate in accordance with any provision
of the 1940 Act, or any rule or regulation made or
adopted by any securities association registered under
the Securities Exchange Act of 1934, as determined by the
Trustees, less any applicable charge or fee imposed from
time to time as determined by the Trustees.
(c) Net asset value of each series or class of
Shares (for the purpose of issuance of Shares as well as
redemptions thereof) shall be determined by dividing:
(i) the total value of the assets of such
series or class determined as provided in
paragraph (d) below less, to the extent
determined by or pursuant to the direction of
the Trustees in accordance with generally
accepted accounting principles, all debts,
obligations and liabilities of such series or
class (which debts, obligations and liabilities
shall include, without limitation of the
generality of the foregoing, any and all debts,
obligations, liabilities, or claims, of any and
every kind and nature, fixed, accrued and
otherwise, including the estimated accrued
expenses of management and supervision,
administration and distribution and any
reserves or charges for any or all of the
foregoing, whether for taxes, expenses, or
otherwise, and the price of Shares redeemed but
not paid for) but excluding the Trust's
liability upon its Shares and its surplus, by
(ii) the total number of Shares of such
series or class outstanding.
The Trustees are empowered, in their absolute
discretion, to establish other methods for determining
such net asset value whenever such other methods are
deemed by them to be necessary to enable the Trust to
comply with applicable law, or are deemed by them to be
desirable, provided they are not inconsistent with any
provision of the 1940 Act.
(d) In determining for the purposes of this
Declaration of Trust the total value of the assets of
each series or class of Shares at any time, investments
and any other assets of such series or class shall be
valued in such manner as may be determined from time to
time by or pursuant to the order of the Trustees.
(e) Payment of the redemption price by the
Trust may be made either in cash or in securities or
other assets at the time owned by the Trust or partly in
cash and partly in securities or other assets at the time
owned by the Trust. The value of any part of such
payment to be made in securities or other assets of the
Trust shall be the value employed in determining the
redemption price. Payment of the redemption price shall
be made on or before the seventh day following the day on
which the Shares are properly presented for redemption
hereunder, except that delivery of any securities
included in any such payment shall be made as promptly as
any necessary transfers on the books of the issuers whose
securities are to be delivered may be made and, except as
postponement of the date of payment may be permissible
under the 1940 Act.
Pursuant to resolution of the Trustees, the
Trust may deduct from the payment made for any Shares
redeemed a liquidating charge not in excess of one
percent (1%) of the redemption price of the Shares so
redeemed, and the Trustees may alter or suspend any such
liquidating charge from time to time.
(f) The right of any holder of Shares redeemed
by the Trust as provided in this Article VI to receive
dividends or distributions thereon and all other rights
of such Shareholder with respect to such Shares shall
terminate at the time as of which the redemption price of
such Shares is determined, except the right of such
Shareholder to receive (i) the redemption price of such
Shares from the Trust in accordance with the provisions
hereof, and (ii) any dividend or distribution to which
such Shareholder previously had become entitled as the
record holder of such Shares on the record date for such
dividend or distribution.
(g) Redemption of Shares by the Trust is
conditional upon the Trust having funds or other assets
legally available therefor.
(h) The Trust, either directly or through an
agent, may repurchase its Shares, out of funds legally
available therefor, upon such terms and conditions and
for such consideration as the Trustees shall deem
advisable, by agreement with the owner at a price not
exceeding the net asset value per Share as determined by
or pursuant to the order of the Trustees at such time or
times as the Trustees shall designate, less a charge not
to exceed one percent (1%) of such net asset value, if
and as fixed by resolution of the Trustees from time to
time, and to take all other steps deemed necessary or
advisable in connection therewith.
(i) Shares purchased or redeemed by the Trust
shall be cancelled or held by the Trust for reissue, as
the Trustees from time to time may determine.
(j) The obligations set forth in this
Article VI may be suspended or postponed, (1) for any
period (i) during which the New York Stock Exchange is
closed other than for customary weekend and holiday
closings, or (ii) during which trading on the New York
Stock Exchange is restricted, (2) for any period during
which an emergency exists as a result of which (i) the
disposal by the Trust of investments owned by it is not
reasonably practicable, or (ii) it is not reasonably
practicable for the Trust fairly to determine the value
of its net assets, or (3) for such other periods as the
Commission or any successor governmental authority by
order may permit.
Notwithstanding any other provision of this
Section 3 of Article VI, if certificates representing
such Shares have been issued, the redemption or
repurchase price need not be paid by the Trust until such
certificates are presented in proper form for transfer to
the Trust or the agent of the Trust appointed for such
purpose; however, the redemption or repurchase shall be
effective, in accordance with the resolution of the
Trustees, regardless of whether or not such presentation
has been made.
Section 4. Redemptions at the Option of the
Trust. The Trust shall have the right at its option and
at any time to redeem Shares of any Shareholder at the
net asset value thereof as determined in accordance with
Section 3 of Article VI of this Declaration of Trust:
(i) if at such time such Shareholder owns fewer Shares
than, or Shares having an aggregate net asset value of
less than, an amount determined from time to time by the
Trustees; or (ii) to the extent that such Shareholder
owns Shares of a particular series or class of Shares
equal to or in excess of a percentage of the outstanding
Shares of that series or class determined from time to
time by the Trustees; or (iii) to the extent that such
Shareholder owns Shares of the Trust representing a
percentage equal to or in excess of such percentage of
the aggregate number of outstanding Shares of the Trust
or the aggregate net asset value of the Trust determined
from time to time by the Trustees.
Section 5. Dividends, Distributions,
Redemptions and Repurchases. No dividend or distribution
(including, without limitation, any distribution paid
upon termination of the Trust or of any series) with
respect to, nor any redemption or repurchase of, the
Shares of any series shall be effected by the Trust other
than from the assets of such series.
ARTICLE VII
Compensation and Limitation of
Liability of Trustees
Section 1. Compensation. The Trustees shall
be entitled to reasonable compensation from the Trust and
may fix the amount of their compensation.
Section 2. Limitation of Liability. The
Trustees shall not be responsible or liable in any event
for any neglect or wrongdoing of any officer, agent,
employee or Manager of the Trust, nor shall any Trustee
be responsible for the act or omission of any other
Trustee, but nothing herein contained shall protect any
Trustee against any liability to which he would otherwise
be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties
involved in the conduct of his office.
Every note, bond, contract, instrument,
certificate, share, or undertaking and every other act or
thing whatsoever executed or done by or on behalf of the
Trust or the Trustees or any of them in connection with
the Trust, shall be deemed conclusively to have been
executed or done only in their or his capacity as
Trustees or Trustee, and such Trustees or Trustee shall
not be personally liable thereon.
ARTICLE VIII
Indemnification
Section 1. Indemnification of Trustees,
Officers, Employees and Agents. Each person who is or
was a Trustee, officer, employee or agent of the Trust
shall be entitled to indemnification out of the assets of
the Trust to the extent provided in, and subject to the
provisions of, the By-Laws, provided that no
indemnification shall be granted by the Trust in
contravention of the 1940 Act.
Section 2. Merged Corporations. For the
purposes of this Article VIII references to "the Trust"
include any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation
or merger which, if its separate existence had continued,
would have had power and authority to indemnify its
directors, officers, employees or agents as well as the
resulting or surviving entity; so that any person who is
or was a director, officer, employee or agent of such a
constituent corporation or is or was serving at the
request of such a constituent corporation as a trustee,
director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise shall stand in the same position under the
provisions of this Article VIII with respect to the
resulting or surviving entity as he would have with
respect to such a constituent corporation if its separate
existence had continued.
Section 3. Shareholders. In case any Share-
holder or former Shareholder shall be held to be
personally liable solely by reason of his being or having
been a Shareholder and not because of his acts or
omissions or for some other reason, 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 particular series of Shares of which he is
or was a Shareholder to be held harmless from and
indemnified against all losses and expenses arising from
such liability. Upon request, the Trust shall cause its
counsel to assume the defense of any claim which, if
successful, would result in an obligation of the Trust to
indemnify the Shareholder as aforesaid.
ARTICLE IX
Status of the Trust and Other General Provisions
Section 1. Trust Not a Partnership. It is
hereby expressly declared that a trust and not a
partnership is created hereby. Neither the Trust nor the
Trustees, nor any officer, employee or agent of the Trust
shall have any power to bind personally either the
Trust's Trustees or officers or any Share- holders. All
persons extending credit to, contracting with or having
any claim against the Trust or a particular series of
Shares shall look only to the assets of the Trust or the
assets of that particular series for payment under such
credit, contract or claim; and neither the Shareholders
nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future,
shall be personally liable therefor. Nothing in this
Declaration of Trust shall protect any Trustee against
any liability to which such Trustee otherwise would 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
hereunder.
Section 2. Trustee's Good Faith Action, Expert
Advice, No Bond or Surety. The exercise by the Trustees
of their powers and discretion hereunder under the
circumstances then prevailing, shall be binding upon
everyone interested. A Trustee shall be liable for his
or her own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved
in the conduct of the office of Trustee, and for nothing
else, 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 subject to
the provisions of Section 1 of this Article IX shall be
under no liability for any act or omission in accordance
with such advice or for failing to follow such advice.
The Trustees shall not be required to give any bond as
such, nor any surety if a bond is required.
Section 3. 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
pursuant hereto or to see to the application of any
payments made or property transferred to the Trust or
upon its order.
Section 4. Trustees, Shareholders, etc. Not
Personally Liable; Notice. All persons extending credit
to, contracting with or having any claim against the
Trust or a particular series of Shares shall look only to
the assets of the Trust or the assets of that particular
series of Shares 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.
Section 5. Consolidation, Merger, Sale of
Assets. The Trust may, in accordance with the provisions
of this Section:
(1) Consolidate with one or more corporations
or trusts to form a new consolidated corporation or
trust; or
(2) Merge into a corporation or trust, or have
merged into it one or more corporations or trusts; or
(3) Sell, lease, exchange or transfer all, or
substantially all, its property and assets, including its
good will and franchises.
Any such consolidation, merger, sale, lease,
exchange or other transfer of all or substantially all of
the property and assets of the Trust may be made only
upon substantially the terms and conditions set forth in
a proposed form of articles of consolidation, articles of
merger or articles of sale, lease, exchange or transfer,
as the case may be, which are approved by votes of the
Trustees and Shareholders holding a majority of the
Shares entitled to vote thereon, provided that in the
case of a merger in which the Trust is the surviving
entity which effects no reclassification or change of any
outstanding shares of the Trust or other amendment of
this Declaration of Trust, no vote of the Shareholders
shall be necessary (and in lieu thereof, the proposed
articles of merger shall be approved by a majority of the
Trustees) if the number of Shares, if any, of the Trust
to be issued or delivered in the merger does not exceed
fifteen percent of the number of Shares outstanding
(before giving effect to the merger) on the effective
date of the merger. Any articles of consolidation,
merger, sale, lease, exchange or transfer shall
constitute a supplemental Declaration of Trust, copies of
which shall be filed as specified in Section 7 of this
Article IX.
Section 6. 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 vote of Shareholders holding at least a
majority of the Shares of each series entitled to vote or
by the Trustees by written notice to the Shareholders.
Any series of Shares may be terminated at any time by
vote of Shareholders holding at least a majority of the
Shares of such series entitled to vote or by the Trustees
by written notice to the Shareholders of such series.
Upon termination of the Trust or of any one or
more series of Shares, 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 reduce, in
accordance with such procedures as the Trustees consider
appropriate, the remaining assets to distributable form
in cash or shares or other securities, or any combination
thereof, and distribute the proceeds to the Shareholders
of the series involved, ratably according to the number
of Shares of such series held by the several Shareholders
of such series on the date of termination, except to the
extent otherwise required or permitted by the preferences
and special or relative rights and privileges of any
classes of Shares of that series, provided that any
distribution to the Shareholders of a particular class of
Shares shall be made to such Shareholders pro rata in
proportion to the number of Shares of such class held by
each of them.
Section 7. Filing of Copies, References,
Headings. The original or a copy of this instrument and
of each amendment hereto and of each Declaration of Trust
supplemental 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 such amendment and
supplemental Declaration of Trust shall be filed by the
Trust with the Secretary of State of The Commonwealth of
Massachusetts and the Boston City Clerk, as well as any
other governmental office where such filing may from time
to time be required. Anyone dealing with the Trust may
rely on a certificate by an officer of the Trust as to
whether or not any such amendments or supplemental Decla-
rations of Trust have been made and as to 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 amendment or supplemental De-
claration of Trust. In this instrument or in any such
amendment or supplemental Declaration of Trust,
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 amendment or supplemental Declaration of Trust.
Headings are placed herein for convenience of reference
only and in case of any conflict, the text of this
instrument, rather than the headings, shall control.
This instrument may be executed in any number of
counterparts each of which shall be deemed an original.
Section 8. Applicable Law. The Trust set
forth in this instrument is made in The Commonwealth of
Massachusetts, and it is created under and is to be
governed by and construed and administered according to
the laws of said Commonwealth. The Trust shall be of the
type commonly called a Massachusetts business trust, and
without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by
such a trust.
Section 9. Amendments. This Declaration of
Trust may be amended at any time by an instrument in
writing signed by a majority of the then Trustees when
authorized so to do by a vote of Shareholders holding a
majority of the Shares of each series or class entitled
to vote, except that an amendment which shall affect the
holders of one or more series or class of Shares but not
the holders of all outstanding series or class shall be
authorized by vote of the Shareholders holding a majority
of the Shares entitled to vote of each series or class
affected and no vote of Shareholders of a series or class
not affected shall be required. Amendments having the
purpose of changing the name of the Trust or of supplying
any omission, curing any ambiguity or curing, correcting
or supplementing any defective or inconsistent provision
contained herein shall not require authorization by
Shareholder vote.
IN WITNESS WHEREOF, the undersigned Trustees
have hereunto set their hand and seal for themselves and
their assigns as of the day and year first above written.
/s/Xxxxxxxx X. Xxxxxxxxx, Xx.
Xxxxxxxx X. Xxxxxxxxx, Xx.
/s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
/s/Xxxxxx X. XxXxxxxxx
Xxxxxx X. XxXxxxxxx
/s/Xxxxxx Xxxxx
Xxxxxx Xxxxx
/s/Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
/s/Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 24th day of July, 1992, before me
personally came the above-named Trustees of the Fund, to
me known, and known to me to be the persons described in
and who executed the foregoing instrument, and each duly
acknowledged to me that he or she had executed the same.
/s/Paraskevou Charalambous
Notary Public
