EXHIBIT 1.
XXXXXX PREMIER INCOME TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts, this
14th day of January, 1988, by the Trustees hereunder, and by the holders
of shares of beneficial interest to be issued hereunder as hereinafter
provided.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of a Massachusetts voluntary association with
transferable shares 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 in this Trust as
hereinafter set forth.
ARTICLE I
Name and Definitions
Name
Section 1. This Trust shall be known as "Xxxxxx Premier 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.
Definitions
Section 2. Whenever used herein, unless otherwise required by the
context or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust established
by this Agreement and Declaration of Trust, as amended from time to
time;
(b) "Trustees" refers to the Trustees of the Trust named herein or
elected in accordance with Article IV;
(c) "Shares" means the equal proportionate transferable units of
interest into which the beneficial interest in the Trust shall be
divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(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 terms "Affiliated Person", "Assignment", "Commission",
"Interested Person", "Principal Underwriter" and "Majority Shareholder
Vote" (the 67% or 50% requirement of the third sentence of Section
2(a)(42) of the 1940 Act, whichever may be applicable) shall have the
meanings given them in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust as amended or restated from time to time; and
(h) "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 provide investors a managed investment
primarily in securities, debt instruments and other instruments and
rights of a financial character.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The beneficial interest in the Trust shall at all times be
divided into Shares, without par value, each of which shall represent an
equal proportionate interest in the Trust with each other Share, none
having priority or preference over another. The number of Shares
authorized shall be unlimited. The Trustees may from time to time
divide or combine the Shares into a greater or lesser number without
thereby changing the proportionate beneficial interests in the Trust.
Ownership of Shares
Section 2. The ownership of Shares shall be recorded on the books of
the Trust or a transfer or similar agent. No certificates certifying
the ownership of Shares shall 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
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 held from time to time by each Shareholder.
Investment in the Trust
Section 3. The Trustees shall accept investments in the Trust from such
persons and on such terms and for such consideration, which may consist
of cash or tangible or intangible property or a combination thereof, as
they or the Bylaws from time to time authorize.
No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the
Trust.
Status of Shares and Limitation of Personal Liability
Section 5. 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
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 IV
The Trustees
Election
Section 1. In each year beginning in 1989, at the annual meeting of
Shareholders or at any special meeting held in lieu thereof, or at any
special meeting held before 1989, the Shareholders shall fix the number
of and elect a Board of not less than three Trustees, each of whom shall
serve until the next annual meeting or special meeting in lieu thereof
and until the election and qualification of his or her successor, or
until he or she sooner dies, resigns or is removed. The initial
Trustees, each of whom shall serve until the first meeting of
Shareholders at which Trustees are elected and until his or her
successor is elected and qualified, or until he or she sooner dies,
resigns or is removed shall be Xxxxxx Xxxxxx, Xxxxxxx X. Xxxxxx and Xxxx
X'Xxxxx and such other persons as the Trustee or Trustees then in office
shall, prior to any sale of Shares pursuant to public offering, appoint.
Effect of Death, Resignation, etc. of a Trustee
Section 2. The death, declination, resignation, retirement, removal or
incapacity of the Trustees, or any one of them, shall not operate to
annul the Trust or to revoke any existing agency created pursuant to the
terms of this Declaration of Trust.
Powers
Section 3. Subject to the provisions of this 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. Without limiting the foregoing, the Trustees may adopt
Bylaws 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 such Bylaws do not reserve that right to the
Shareholders; they may fill vacancies in or add to their number, and may
elect and remove such officers and appoint and terminate such agents as
they consider appropriate; they may appoint from their own number, and
terminate, any one or more committees consisting of two or more
Trustees, including an executive committee which may, when the Trustees
are not in session, exercise some or all of the power and authority of
the Trustees as the Trustees may determine; 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 or a shareholder servicing agent, or both, provide for
the distribution of Shares by the Trust, through one or more principal
underwriters or otherwise, set record dates for the determination of
Shareholders with respect to various matters, and in general delegate
such authority as they consider desirable to any officer of the Trust,
to any committee of the Trustees and to any agent or employee of the
Trust or to any such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease the assets of the Trust except as otherwise
provided in Article IX, Section 5;
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such
power and discretion with relation to securities or property as the
Trustees shall deem proper;
(d) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership or securities;
(e) 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 Trustees or of the Trust or in the name of a custodian,
subcustodian or other depositary or a nominee or nominees or otherwise;
(f) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security 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 held in
the Trust;
(g) To join with other security holders in acting through a committee
depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such
committee, depositary or trustee, and to delegate to them such power and
authority with relation to any security (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and
to pay, such portion of the expenses and compensation of such committee,
depositary or trustee as the Trustees shall deem proper;
(h) To 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) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(j) To borrow funds;
(k) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or suretyship,
or otherwise assume liability for payment thereof; and to mortgage and
pledge the Trust property or any part thereof to secure any of or all
such obligations;
(l) 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
(m) 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.
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. Except as
otherwise provided herein or from time to time in 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 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.
Payment of Expenses by Trust
Section 4. The Trustees are authorized to pay or to cause to be paid
out of the assets of the Trust, 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 or
manager, principal underwriter, auditor, counsel, custodian, transfer
agent, Shareholder servicing agent, and such other agents or independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of the Trust shall at all times
be considered as vested in the Trustees.
Advisory, Management and Distribution
Section 6. Subject to a favorable Majority Shareholder Vote, the
Trustees may, at any time and from time to time, contract for exclusive
or nonexclusive advisory and/or management services with any
corporation, trust, association or other organization (the "Manager"),
every such contract to comply with such requirements and restrictions as
may be set forth in the Bylaws; and any such contract may contain such
other terms interpretive of or in addition to said requirements and
restrictions as the Trustees may determine, 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. The Trustees may also, at any time and from
time to time, contract with the Manager or any other corporation, trust,
association or other organization, appointing it exclusive or
nonexclusive distributor or principal underwriter for the Shares, every
such contract to comply with such requirements and restrictions as may
be set forth in the Bylaws; and any such contract may contain such other
terms interpretive of or in addition to said requirements and
restrictions as the Trustees may determine.
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
corporation, trust, association, or other organization, with which an
advisory or management contract, or principal underwriter's or
distributor's contract, or transfer, Shareholder servicing or other
agency contract may have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a Shareholder or
has an interest in the Trust, or that
(ii) any corporation, trust, association or other organization with
which an advisory or management contract or principal underwriter's or
distributor's contract, or transfer, Shareholder servicing or other
agency contract may have been or may hereafter be made also has an
advisory or management contract, or transfer, Shareholder servicing or
other agency contract with one or more other corporation, trusts,
associations, or other organizations, or has other business or interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or
executing the same or create any liability or accountability to the
Trust or its Shareholders.
ARTICLE V
Shareholders' Voting Powers and Meetings
Voting Powers
Section 1. The Shareholders shall have power to vote only (i) for the
election of Trustees as provided in Article IV, Section 1, (ii) with
respect to any Manager as provided in Article IV, Section 6, (iii) with
respect to any termination of this Trust to the extent and as provided
in Article IX, Section 4, (iv) with respect to any merger, consolidation
or sale of assets of the Trust to the extent and as provided in Article
IX, Section 5, (v) with respect to any conversion of the Trust as
provided in Article IX, Section 6, (vi) with respect to any amendment of
this Declaration of Trust to the extent and as provided in Article IX,
Section 9, (vii) to the same extent as the stockholders of a
Massachusetts business corporation as to whether or not 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 (viii) with respect to such additional matters
relating to the Trust as may be required by this 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. Each whole Share shall be entitled to one vote
as to any matter on which it is entitled to vote and each fractional
Share shall be entitled to a proportionate fractional vote. There shall
be no cumulative voting in the election of Trustees. Shares may be
voted in person or by proxy. A proxy 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 Bylaws to
be taken by Shareholders.
Voting Power and Meetings
Section 2. There shall be an annual meeting of the Shareholders on the
date fixed in the Bylaws at the office of the Trust in Boston,
Massachusetts, or at such other place as may be designated in the call
thereof, which call shall be made by the Trustees. In the event that
such meeting is not held in any year on the date fixed in the Bylaws,
whether the omission be by overnight or otherwise, a subsequent special
meeting may be called by the Trustees and held in lieu of the annual
meeting with the same effect as though held on such date. Special
meetings may also 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 entitled to vote at such meeting at the Shareholder's
address as it appears on the records of the Trust. If the Trustees
shall fail to call or give notice of any meeting of Shareholders for a
period of 30 days after written application by Shareholders holding at
least 25% of the then outstanding shares entitled to vote at such
meeting requesting a meeting to be called for a purpose requiring action
by the Shareholders as provided herein or in the Bylaws, then
Shareholders holding at least 25% of the then outstanding shares
entitled to vote at such meeting 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. Notice of a meeting
need not be given to any Shareholder if a written waiver of notice,
executed by him or her before or after the meeting, is filed with the
records of the meeting, or, to any Shareholder who attends the meeting
without protesting prior thereto or at its commencement the lack of
notice to him or her.
Quorum and Required Vote
Section 3. Thirty percent of Shares entitled to vote shall be a quorum
for the transaction of business at a Shareholders' meeting by 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. Except
when a larger vote is required by any provision of this Declaration of
Trust or the Bylaws, a majority of the Shares voted shall decide any
questions and a plurality shall elect a Trustee.
Action by Written Consent
Section 4. Any action taken by Shareholders may be taken without a
meeting if a majority of Shareholders entitled to vote on the matter (or
such larger proportion thereof as shall be required 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.
Additional Provisions
Section 5. The Bylaws may include further provisions of Shareholders'
votes and meeting and related matters.
ARTICLE VI
Distributions
The Trustees may each year, or more frequently if they so determine,
distribute to the Shareholders such amounts as the Trustees may
determine. Any amounts shall be distributed pro rata in proportion to
the number of Shares held by each Shareholder. Such distributions shall
be made in cash or Shares or a combination thereof as determined by the
Trustees. Any such distribution paid in Shares will be paid at the net
asset value thereof as determined in accordance with the Bylaws.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Compensation
Section 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust; they may fix the amount of their
compensation. Nothing herein shall in any way prevent the employment of
any Trustee for advisory, management, legal, accounting, investment
banking or other services and payment for the same by the Trust.
Limitation of Liability
Section 2. The Trustees shall not be responsible or liable to any event
for any neglect or wrongdoing of any officer, agent, employee, manager
or principal underwriter of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee, but nothing
herein contained shall protect any Trustee against any liability to
which he or she 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 or her office.
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
shall be conclusively deemed to have been executed or done only in or
with respect to their or his or her capacity as Trustees or Trustee, and
such Trustees or Trustee shall not be personally liable thereon.
ARTICLE VIII
Indemnification
Trustee, Officers, etc.
Section 1. 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) (hereinafter referred
to as a "Covered Person") against all liabilities and expenses,
including but not limited to amounts paid in satisfaction of judgments,
in compromise or as fines and penalties, and counsel fees reasonably
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 Covered Person may be or may have been
threatened, while in office or thereafter, by reason of being or having
been such a Covered Person except with respect to any matter as to which
such Covered Person shall have been finally adjudicated in any such
action, suit or other proceeding (a) not to have acted in good faith in
the reasonable belief that such Covered Person's action was in the best
interests of the Trust or (b) to be liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of such Covered Person's office. Expenses, including counsel fees so
incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties),
shall be paid from time to time by the Trust in advance of the final
disposition of any such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Covered Person to repay amounts so
paid to the Trust if it is ultimately determined that indemnification of
such expenses is not authorized under this Article, provided, however,
that either (a) such Covered Person shall have provided appropriate
security for such undertaking, (b) the Trust shall be insured against
leases arising from any such advance payments or (c) either a majority
of the disinterested Trustees acting on the matter (provided that a
majority of the disinterested Trustees then in office act on the
matter), or independent legal counsel in a written opinion, shall have
determined, based upon review of readily available facts (as opposed to
a full trial type inquiry) that there is reason to believe that such
Covered Person will be found entitled to indemnification under this
Article.
Compromise Payment
Section 2. As to any matter disposed of (whether by a compromise
payment, pursuant to a consent decree or otherwise) without an
adjudication by a court, or by any other body before which the
proceeding was brought, that such Covered Person either (a) did not act
in good faith in the reasonable belief that his or her action was in the
best interests of the Trust or (b) is liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of his or her office, indemnification shall be provided if (a) approved
as in the best interests of the Trust, after notice that it involves
such indemnification, by at least a majority of the disinterested
Trustees acting on the matter (provided that a majority of the
disinterested Trustees then in office act on the matter) upon a
determination, based upon a review of readily available facts (as
opposed to a full trial type inquiry) that such Covered Person acted in
good faith in the reasonable belief that his or her action was in the
best interests of the Trust and is not liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of his or her office, or (b) there has been obtained an opinion in
writing of independent legal counsel, based upon a review of readily
available facts (as opposed to a full trial type inquiry) to the effect
that such Covered Person appears to have acted in good faith in the
reasonable belief that his or her action was in the best interests of
the Trust and that such indemnification would not protect such Covered
Person against any liability to the Trust to which he or she 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 or her office. Any approval pursuant to this Section shall not
prevent the recovery from any Covered Person of any amount paid to such
Covered Person in accordance with this Section as indemnification if
such Covered Person is subsequently adjudicated by a court of competent
jurisdiction not to have acted in good faith in the reasonable belief
that such Covered Person's action was in the best interests of the Trust
or to have been liable to the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Covered Person's office.
Indemnification Not Exclusive
Section 3. The right of indemnification hereby provided shall not be
exclusive of or affect any other rights to which such Covered Person may
be entitled. As used in this Article VIII, the term "Covered Person"
shall include such person's heirs, executors and administrators and a
"disinterested Trustee" is a Trustee who is not an "interested person"
of the Trust as defined in Section 2(a)(19) of the 1940 Act (or who has
been exempted from being an "interested person" by any rule, regulation
or order of the Commission) and against whom none of such actions, suits
or other proceedings or another action, suit or other proceeding on the
same or similar grounds is then or has been pending. Nothing contained
in this Article shall affect any rights to indemnification to which
personnel of the Trust, other than Trustees or 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.
Shareholders
Section 4. In case any Shareholder or former Shareholder shall be held
to be personally liable solely by reason of his or her being or having
been a Shareholder and not because of his or her acts or omissions or
for some other reason, the Shareholder or former Shareholder (or his or
her 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 to be held harmless from and
indemnified against all loss and expense arising from such liability,
but only out of the assets of the particular series of Shares of which
he or she is or was a Shareholder.
ARTICLE IX
Miscellaneous
Trustees, Shareholders, etc. Not Personally Liable; Notice
Section 1. 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 therefore. Nothing in this Declaration of Trust shall
protect any Trustee against any liability to which such Trustee 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.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officer or officers shall give
notice that this Declaration of Trust is on file with the Secretary of
The Commonwealth of Massachusetts and shall recite that the same was
executed or made by or on behalf of the Trust or by them as Trustee or
Trustees or as officer or officers 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, and may contain such further recital as he or she
or they may deem appropriate, but the omission thereof shall not operate
to bind any Trustee or Trustees or officer or officers or Shareholder or
Shareholders individually.
Trustee's Good Faith Action, Expert Advice, No Bond or Surety
Section 2. The exercise by the Trustees of their powers and discretions
hereunder 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 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.
Liability of Third Persons Dealing with Trustee
Section 3. 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.
Duration and Termination of Trust
Section 4. 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 66 2/3% of the Shares
entitled to vote (provided, however, if such termination is recommended
by two-thirds of the Trustees the vote of a majority of shares entitled
to vote shall be sufficient authorization) or by the Trustees by written
notice to the Shareholders. Upon termination of the Trust, after paying
or otherwise providing for all charges, taxes, expense and liabilities,
whether due or accrued or anticipated, of the Trust or 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 or shares or other securities, or
other combination thereof, and distribute the proceeds to the
Shareholders, ratably according to the number of Shares held by the
several Shareholders on the date of termination.
Merger, Consolidation and Sale of Assets
Section 5. The Trust may merge or consolidate with any other
corporation, association , trust or other organization or may sell,
lease or exchange all or substantially all of its assets, including its
good will, upon such terms and conditions and for such consideration
when and as authorized at any meeting of Shareholders called for the
purpose, or may liquidate or dissolve when and as authorized, by the
affirmative vote of the holders of not less than two-thirds of the
Shares entitled to vote, provided, however, that if such merger,
consolidation, sale, lease or exchange is recommended by two-thirds of
the Trustees, the vote shall be sufficient authorization. Nothing
contained herein shall be construed as requiring approval of
Shareholders for any sale of assets in the ordinary course or business
of the Trust.
Conversion
Section 6. The Fund may be converted at any time from a "closed-end
company" to an "open-end company" as those terms are defined in Section
5(a)(2) and 5(a)(1), respectively, of the 1940 Act as in effect on
January 1, 1988, upon the approval of such a proposal, together with the
necessary amendments to the Declaration of Trust to permit such a
conversion, by the holders of two-thirds of the Fund's outstanding
Shares entitled to vote, except that if such proposal is recommended by
two-thirds of the total number of the Trustees then in office or such
proposal is voted upon after the beginning of the fiscal year commencing
in 1993 such proposal may be adopted by a vote of a majority of the
Fund's outstanding Shares entitled to vote. In addition, commencing
with the beginning of the fiscal year commencing in 1993, and in each
fiscal year thereafter, if Shares of the Fund have traded on the
principal securities exchange where listed at an average discount of
more than ten percent (10%), determined on the basis of the discount as
of the end of the last trading day in each week during the period of
twelve (12) calendar weeks preceding the beginning of each such fiscal
year, the Trustees will submit to the shareholders at the next
succeeding annual meeting, or within six months thereafter if the Fund
does not then hold annual meetings, a proposal to convert the Fund from
a "closed-end company" to an "open-end company," as those terms are
defined above, together with the necessary amendments to this
Declaration of Trust to permit such a conversion. Upon the adoption of
such proposal and related amendments by the Fund's outstanding shares
entitled to vote, the Fund shall upon complying with any requirements of
the 1940 Act and state law, become an "open-end" investment company.
Such affirmative vote or consent shall be in addition to the vote or
consent of the holders of the Shares otherwise required by law, or any
agreement between the Trust and any national securities exchange.
Filing of Copies, References, Headings
Section 7. 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. 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 and as to any matters in connection with the Trust hereunder, and,
with the same effect as if it were the original, may rely on a copy
certified by an officer of the Trust to be a copy of this instrument or
of any such amendments. In this instrument and in any such amendment,
references to this instrument and all expressions like "herein",
"hereof" and "hereunder" shall be deemed to refer to this instrument as
amended or affected by any such amendments. Headings are placed herein
for convenience of reference only and shall not be taken as 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.
Applicable Law
Section 8. This Declaration of Trust is made in The Commonwealth of
Massachusetts, and it is created under and is 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.
Amendments
Section 9. 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 to do so by vote of Shareholders holding a majority of the
Shares entitled to vote, except that an amendment amending or affecting
the provisions of Section 1 of Article IV, Sections 5 and 6 of this
Article IX or of this sentence shall require the vote of Shareholders
holding two-thirds of the Shares entitled to vote. 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, each of the undersigned has hereunto set his or her
hand in the City of Boston, Massachusetts for himself or herself and his
or her assigns, as of the day and year first above written.
/s/ Xxxxxx Xxxxxx
----------------------------
Xxxxxx Xxxxxx
/s/ Xxxx X'Xxxxx
----------------------------
Xxxx X'Xxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Boston, January 14, 1988
Then personally appeared the above named Xxxxxx Xxxxxx, Xxxx X'Xxxxx and
Xxxxxxx X. Xxxxxx and acknowledged the foregoing instrument to be their
free act and deed, before me,
/s/ Xxxxxxx Xxxxxx
----------------------------
Notary Public
My Commission Expires: 11/4/94
