BLACKROCK REAL ESTATE INCOME TRUST
AGREEMENT AND DECLARATION OF TRUST
Dated as of October 21, 2002
TABLE OF CONTENTS
Page
ARTICLE I
The Trust.................................1
1.1 Name................................................................1
1.2 Definitions.........................................................2
ARTICLE II
Trustees..................................3
2.1 Number and Qualification............................................3
2.2 Term and Election...................................................4
2.3 Resignation and Removal.............................................4
2.4 Vacancies...........................................................5
2.5 Meetings............................................................5
2.6 Trustee Action by Written Consent...................................6
2.7 Officers............................................................6
ARTICLE III
Powers and Duties of Trustees............6
3.1 General.............................................................6
3.2 Investments.........................................................7
3.3 Legal Title.........................................................7
3.4 Issuance and Repurchase of Shares...................................7
3.5 Borrow Money or Utilize Leverage....................................8
3.6 Delegation; Committees..............................................8
3.7 Collection and Payment..............................................8
3.8 Expenses............................................................9
3.9 By-Laws.............................................................9
3.10 Miscellaneous Powers................................................9
3.11 Further Powers.....................................................10
ARTICLE IV
Advisory, Management and Distribution Arrangements.........10
4.1 Advisory and Management Arrangements...............................10
4.2 Distribution Arrangements..........................................11
4.3 Parties to Contract................................................11
ARTICLE V
Limitations of Liability
and Indemnification...........................11
5.1 No Personal Liability of Shareholders, Trustees, etc...............11
5.2 Mandatory Indemnification..........................................12
5.3 No Bond Required of Trustees.......................................14
5.4 No Duty of Investigation; Notice in Trust Instruments, etc.........14
5.5 Reliance on Experts, etc...........................................15
ARTICLE VI
Shares of Beneficial Interest.....................15
6.1 Beneficial Interest................................................15
6.2 Other Securities...................................................15
6.3 Rights of Shareholders.............................................16
6.4 Trust Only.........................................................16
6.5 Issuance of Shares.................................................16
6.6 Register of Shares.................................................16
6.7 Transfer Agent and Registrar.......................................17
6.8 Transfer of Shares.................................................17
6.9 Notices............................................................17
ARTICLE VII
Custodians................................18
7.1 Appointment and Duties.............................................18
7.2 Central Certificate System.........................................19
ARTICLE VIII
Redemption.....................19
8.1 Redemptions........................................................19
8.2 Disclosure of Holding..............................................19
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions............19
9.1 Net Asset Value....................................................19
9.2 Distributions to Shareholders......................................20
9.3 Power to Modify Foregoing Procedures...............................20
ARTICLE X
Shareholders....................21
10.1 Meetings of Shareholders...........................................21
10.2 Voting.............................................................21
10.3 Notice of Meeting and Record Date..................................21
10.4 Quorum and Required Vote...........................................22
10.5 Proxies, etc.......................................................22
10.6 Reports............................................................23
10.7 Inspection of Records..............................................23
10.8 Shareholder Action by Written Consent..............................23
ARTICLE XI
Duration; Termination of Trust;
Amendment; Mergers, Etc...............24
11.1 Duration...........................................................24
11.2 Termination........................................................24
11.3 Amendment Procedure................................................25
11.4 Merger, Consolidation and Sale of Assets...........................26
11.5 Subsidiaries.......................................................26
11.6 Conversion.........................................................27
11.7 Certain Transactions...............................................27
ARTICLE XII
Miscellaneous.............................29
12.1 Filing.............................................................29
12.2 Resident Agent.....................................................30
12.3 Governing Law......................................................30
12.4 Counterparts.......................................................30
12.5 Reliance by Third Parties..........................................30
12.6 Provisions in Conflict with Law or Regulation......................30
BLACKROCK REAL ESTATE INCOME TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made as of the 21st day
of October, 2002, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as
set forth more particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited
number of its shares of beneficial interest all in accordance with the
provisions hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as Trustees of a Delaware business trust in accordance
with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by
this Declaration and the Certificate of Trust filed with the Secretary of
State of the State of Delaware on October 18th, 2002 shall constitute a
business trust under the Delaware Business Trust Act and that this Declaration
shall constitute the governing instrument of such business trust.
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities, and other assets which they may from time to time
acquire in any manner as Trustees hereunder IN TRUST to manage and dispose of
the same upon the following terms and conditions for the benefit of the
holders from time to time of shares of beneficial interest in this Trust as
hereinafter set forth.
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as the "BlackRock Real
Estate Income Trust" and the Trustees shall conduct the business of the Trust
under that name or any other name or names as they may from time to time
determine.
1.2 Definitions. As used in this Declaration, the following
terms shall have the following meanings:
The "1940 Act" refers to the Investment Company Act of 1940
and the rules and regulations promulgated thereunder and exemptions granted
therefrom, as amended from time to time.
The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person" and "Principal Underwriter" shall have the meanings given
them in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust as amended
from time to time by the Trustees.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange
Commission.
"Declaration" shall mean this Agreement and Declaration of
Trust, as amended, supplemented or amended and restated from time to time.
"Delaware Business Trust Statute" shall mean the provisions
of the Delaware Business Trust Act, 12 Del. C.ss.3801, et. seq., as such Act
may be amended from time to time.
"Delaware General Corporation Law" means the Delaware
General Corporation Law, 8 Del. C.ss.100, et. seq., as amended from time to
time.
"Fundamental Policies" shall mean the investment policies
and restrictions as set forth from time to time in any Prospectus or contained
in any current Registration Statement of the Trust filed with the Commission
or as otherwise adopted by the Trustees and the Shareholders in accordance
with the requirements of the 1940 Act and designated as fundamental policies
therein as they may be amended from time to time in accordance with the
requirements of the 1940 Act.
"Majority Shareholder Vote" shall mean a vote of "a majority
of the outstanding voting securities" (as such term is defined in the ▇▇▇▇
▇▇▇) of the Trust with each class and series of Shares voting together as a
single class, except to the extent otherwise required by the 1940 Act or this
Declaration with respect to any one or more classes or series of Shares, in
which case the applicable proportion of such classes or series of Shares
voting as a separate class or series, as case may be, also will be required.
"Person" shall mean and include individuals, corporations,
partnerships, trusts, limited liability companies, associations, joint
ventures and other entities, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Prospectus" shall mean the Prospectus of the Trust, if any,
as in effect from time to time under the Securities Act of 1933, as amended.
"Shareholders" shall mean as of any particular time the
holders of record of outstanding Shares of the Trust, at such time.
"Shares" shall mean the transferable units of beneficial
interest into which the beneficial interest in the Trust shall be divided from
time to time and includes fractions of Shares as well as whole Shares. In
addition, Shares also means any preferred shares or preferred units of
beneficial interest which may be issued from time to time, as described
herein. All references to Shares shall be deemed to be Shares of any or all
series or classes as the context may require.
"Trust" shall mean the trust established by this
Declaration, as amended from time to time, inclusive of each such amendment.
"Trust Property" shall mean as of any particular time any
and all property, real or personal, tangible or intangible, which at such time
is owned or held by or for the account of the Trust or the Trustees in such
capacity.
"Trustees" shall mean the signatories to this Declaration,
so long as they shall continue in office in accordance with the terms hereof,
and all other persons who at the time in question have been duly elected or
appointed and have qualified as trustees in accordance with the provisions
hereof and are then in office.
ARTICLE II
Trustees
2.1 Number and Qualification. Prior to a public offering of
Shares there may be a sole Trustee. Thereafter, the number of Trustees shall
be determined by a written instrument signed by a majority of the Trustees
then in office, provided that the number of Trustees shall be no less than two
or more than nine. No reduction in the number of Trustees shall have the
effect of removing any Trustee from office prior to the expiration of his
term. An individual nominated as a Trustee shall be at least 21 years of age
and not older than 80 years of age at the time of nomination and not under
legal disability. Trustees need not own Shares and may succeed themselves in
office.
2.2 Term and Election. The Board of Trustees shall be
divided into three classes, designated Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of trustees constituting the entire Board of Trustees. Within the
limits above specified, the number of the Trustees in each class shall be
determined by resolution of the Board of Trustees. The term of office of the
first class shall expire on the date of the first annual meeting of
Shareholders or special meeting in lieu thereof following the effective date
of the Registration Statement relating to the Shares under the Securities Act
of 1933, as amended. The term of office of the second class shall expire on
the date of the second annual meeting of Shareholders or special meeting in
lieu thereof following the effective date of the Registration Statement
relating to the Shares under the Securities Act of 1933, as amended. The term
of office of the third class shall expire on the date of the third annual
meeting of Shareholders or special meeting in lieu thereof following the
effective date of the Registration Statement relating to the Shares under the
Securities Act of 1933, as amended. Upon expiration of the term of office of
each class as set forth above, the number of Trustees in such class, as
determined by the Board of Trustees, shall be elected for a term expiring on
the date of the third annual meeting of Shareholders or special meeting in
lieu thereof following such expiration to succeed the Trustees whose terms of
office expire. The Trustees shall be elected at an annual meeting of the
Shareholders or special meeting in lieu thereof called for that purpose,
except as provided in Section 2.3 of this Article and each Trustee elected
shall hold office until his or her successor shall have been elected and shall
have qualified. The term of office of a Trustee shall terminate and a vacancy
shall occur in the event of the death, resignation, removal, bankruptcy,
adjudicated incompetence or other incapacity to perform the duties of the
office, or removal, of a Trustee.
2.3 Resignation and Removal. Any of the Trustees may resign
their trust (without need for prior or subsequent accounting) by an instrument
in writing signed by such Trustee and delivered or mailed to the Trustees or
the Chairman, if any, the President or the Secretary and such resignation
shall be effective upon such delivery, or at a later date according to the
terms of the instrument. Any of the Trustees may be removed (provided the
aggregate number of Trustees after such removal shall not be less than the
minimum number required by Section 2.1 hereof) for cause only, and not without
cause, and only by action taken by a majority of the remaining Trustees
followed by the holders of at least seventy-five percent (75%) of the Shares
then entitled to vote in an election of such Trustee. Upon the resignation or
removal of a Trustee, each such resigning or removed Trustee shall execute and
deliver such documents as the remaining Trustees shall require for the purpose
of conveying to the Trust or the remaining Trustees any Trust Property held in
the name of such resigning or removed Trustee. Upon the incapacity or death of
any Trustee, such Trustee's legal representative shall execute and deliver on
such Trustee's behalf such documents as the remaining Trustees shall require
as provided in the preceding sentence.
2.4 Vacancies. Whenever a vacancy in the Board of Trustees
shall occur, the remaining Trustees may fill such vacancy by appointing an
individual having the qualifications described in this Article by a written
instrument signed by a majority of the Trustees then in office or may leave
such vacancy unfilled or may reduce the number of Trustees; provided the
aggregate number of Trustees after such reduction shall not be less than the
minimum number required by Section 2.1 hereof; provided, further, that if the
Shareholders of any class or series of Shares are entitled separately to elect
one or more Trustees, a majority of the remaining Trustees or the sole
remaining Trustee elected by that class or series may fill any vacancy among
the number of Trustees elected by that class or series. Any vacancy created by
an increase in Trustees may be filled by the appointment of an individual
having the qualifications described in this Article made by a written
instrument signed by a majority of the Trustees then in office. No vacancy
shall operate to annul this Declaration or to revoke any existing agency
created pursuant to the terms of this Declaration. Whenever a vacancy in the
number of Trustees shall occur, until such vacancy is filled as provided
herein, the Trustees in office, regardless of their number, shall have all the
powers granted to the Trustees and shall discharge all the duties imposed upon
the Trustees by this Declaration.
2.5 Meetings. Meetings of the Trustees shall be held from
time to time upon the call of the Chairman, if any, or the President or any
two Trustees. Regular meetings of the Trustees may be held without call or
notice at a time and place fixed by the By-Laws or by resolution of the
Trustees. Notice of any other meeting shall be given by the Secretary and
shall be delivered to the Trustees orally not less than 24 hours, or in
writing not less than 72 hours, before the meeting, but may be waived in
writing by any Trustee either before or after such meeting. The attendance of
a Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Trustee attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting has not been
properly called or convened. A quorum for all meetings of the Trustees shall
be one-third, but not less than two, of the Trustees. Unless provided
otherwise in this Declaration and except as required under the 1940 Act, any
action of the Trustees may be taken at a meeting by vote of a majority of the
Trustees present (a quorum being present) or without a meeting by written
consent of a majority of the Trustees.
Any committee of the Trustees, including an executive
committee, if any, may act with or without a meeting. A quorum for all
meetings of any such committee shall be one-third, but not less than two, of
the members thereof. Unless provided otherwise in this Declaration, any action
of any such committee may be taken at a meeting by vote of a majority of the
members present (a quorum being present) or without a meeting by written
consent of all of the members.
With respect to actions of the Trustees and any committee of
the Trustees, Trustees who are Interested Persons in any action to be taken
may be counted for quorum purposes under this Section and shall be entitled to
vote to the extent not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting
of the Trustees or any committee thereof by means of a conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other; participation in a meeting pursuant to any
such communications system shall constitute presence in person at such
meeting.
2.6 Trustee Action by Written Consent. Any action which may
be taken by Trustees by vote may be taken without a meeting if that number of
the Trustees, or members of a committee, as the case may be, required for
approval of such action at a meeting of the Trustees or of such committee
consent to the action in writing and the written consents are filed with the
records of the meetings of Trustees. Such consent shall be treated for all
purposes as a vote taken at a meeting of Trustees.
2.7 Officers. The Trustees shall elect a President, a
Secretary and a Treasurer and may elect a Chairman who shall serve at the
pleasure of the Trustees or until their successors are elected. The Trustees
may elect or appoint or may authorize the Chairman, if any, or President to
appoint such other officers or agents with such powers as the Trustees may
deem to be advisable. A Chairman shall, and the President, Secretary and
Treasurer may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
3.1 General. The Trustees shall owe to the Trust and its
Shareholders the same fiduciary duties as owed by directors of corporations to
such corporations and their stockholders under the Delaware General
Corporation Law. The Trustees shall have exclusive and absolute control over
the Trust Property and over the business of the Trust to the same extent as if
the Trustees were the sole owners of the Trust Property and business in their
own right, but with such powers of delegation as may be permitted by this
Declaration. The Trustees may perform such acts as in their sole discretion
are proper for conducting the business of the Trust. The enumeration of any
specific power herein shall not be construed as limiting the aforesaid power.
Such powers of the Trustees may be exercised without order of or resort to any
court.
3.2 Investments. The Trustees shall have power, subject to
the Fundamental Policies in effect from time to time with respect to the Trust
to:
(a) manage, conduct, operate and carry on the
business of an investment company;
(b) subscribe for, invest in, reinvest in, purchase
or otherwise acquire, hold, pledge, sell, assign, transfer, exchange, distribute
or otherwise deal in or dispose of any and all sorts of property, tangible or
intangible, including but not limited to securities of any type whatsoever,
whether equity or non-equity, of any issuer, evidences of indebtedness of any
person and any other rights, interests, instruments or property of any sort
and to exercise any and all rights, powers and privileges of ownership or
interest in respect of any and all such investments of every kind and
description, including, without limitation, the right to consent and otherwise
act with respect thereto, with power to designate one or more Persons to
exercise any of said rights, powers and privileges in respect of any of said
investments. The Trustees shall not be limited by any law limiting the
investments which may be made by fiduciaries.
3.3 Legal Title. Legal title to all the Trust Property shall
be vested in the Trustees as joint tenants except that the Trustees shall have
power to cause legal title to any Trust Property to be held by or in the name
of one or more of the Trustees, or in the name of the Trust, or in the name of
any other Person as nominee, custodian or pledgee, on such terms as the
Trustees may determine, provided that the interest of the Trust therein is
appropriately protected.
The right, title and interest of the Trustees in the Trust
Property shall vest automatically in each person who may hereafter become a
Trustee upon his due election and qualification. Upon the ceasing of any
person to be a Trustee for any reason, such person shall automatically cease
to have any right, title or interest in any of the Trust Property, and the
right, title and interest of such Trustee in the Trust Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed
and delivered.
3.4 Issuance and Repurchase of Shares. The Trustees shall
have the power 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, subject to the more
detailed provisions set forth in Articles VIII
and IX, to apply to any such repurchase, redemption, retirement, cancellation
or acquisition of Shares any funds or property whether capital or surplus or
otherwise, to the full extent now or hereafter permitted corporations formed
under the Delaware General Corporation Law.
3.5 Borrow Money or Utilize Leverage. Subject to the
Fundamental Policies in effect from time to time with respect to the Trust,
the Trustees shall have the power to borrow money or otherwise obtain credit
or utilize leverage to the maximum extent permitted by law or regulation as
such may be needed from time to time and to secure the same by mortgaging,
pledging or otherwise subjecting as security the assets of the Trust,
including the lending of portfolio securities, and to endorse, guarantee, or
undertake the performance of any obligation, contract or engagement of any
other person, firm, association or corporation.
3.6 Delegation; Committees. The Trustees shall have the
power, consistent with their continuing exclusive authority over the
management of the Trust and the Trust Property, to delegate from time to time
to such of their number or to officers, employees or agents of the Trust the
doing of such things and the execution of such instruments either in the name
of the Trust or the names of the Trustees or otherwise as the Trustees may
deem expedient, to at least the same extent as such delegation is permitted to
directors of corporations formed under the Delaware General Corporation Law
and is permitted by the 1940 Act, as well as any further delegations the
Trustees may determine to be desirable, expedient or necessary in order to
effect the purpose hereof. The Trustees may designate an executive committee
which shall have all authority of the entire Board of Trustees except such
committee cannot declare dividends except to the extent specifically delegated
by the Board of Trustees and cannot authorize removal of a trustee or any
merger, consolidation or sale of substantially all of the assets of the Trust.
3.7 Collection and Payment. The Trustees shall have power to
collect all property due to the Trust; to pay all claims, including taxes,
against the Trust Property or the Trust, the Trustees or any officer, employee
or agent of the Trust; to prosecute, defend, compromise or abandon any claims
relating to the Trust Property or the Trust, or the Trustees or any officer,
employee or agent of the Trust; to foreclose any security interest securing
any obligations, by virtue of which any property is owed to the Trust; and to
enter into releases, agreements and other instruments. Except to the extent
required for a corporation formed under the Delaware General Corporation Law,
the Shareholders shall have no power to vote as to whether or not a court
action, legal 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.
3.8 Expenses. The Trustees shall have power to incur and pay
out of the assets or income of the Trust any expenses which in the opinion of
the Trustees are necessary or incidental to carry out any of the purposes of
this Declaration, and the business of the Trust, and to pay reasonable
compensation from the funds of the Trust to themselves as Trustees. The
Trustees shall fix the compensation of all officers, employees and Trustees.
The Trustees may pay themselves such compensation for special services,
including legal, underwriting, syndicating and brokerage services, as they in
good faith may deem reasonable and reimbursement for expenses reasonably
incurred by themselves on behalf of the Trust. The Trustees shall have the
power, as frequently as they may determine, to cause each Shareholder to pay
directly, in advance or arrears, for charges of distribution, of the custodian
or transfer, Shareholder servicing or similar agent, a pro rata amount as
defined from time to time by the Trustees, by setting off such charges due
from such Shareholder from declared but unpaid dividends or distributions owed
such Shareholder and/or by reducing the number of shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such Shareholder.
3.9 By-Laws. The Trustees shall have the exclusive authority
to adopt and from time to time amend or repeal By-Laws for the conduct of the
business of the Trust.
3.10 Miscellaneous Powers. The Trustees shall have the power
to: (a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the business of the Trust; (b) enter into
joint ventures, partnerships and any other combinations or associations; (c)
purchase, and pay for out of Trust Property, insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, investment advisors,
distributors, selected dealers or independent contractors of the Trust against
all claims arising by reason of holding any such position or by reason of any
action taken or omitted by any such Person in such capacity, whether or not
constituting negligence, or whether or not the Trust would have the power to
indemnify such Person against such liability; (d) establish pension,
profit-sharing, share purchase, and other retirement, incentive and benefit
plans for any Trustees, officers, employees and agents of the Trust; (e) make
donations, irrespective of benefit to the Trust, for charitable, religious,
educational, scientific, civic or similar purposes; (f) to the extent
permitted by law, indemnify any Person with whom the Trust has dealings,
including without limitation any advisor, administrator, manager, transfer
agent, custodian, distributor or selected dealer, or any other person as the
Trustees may see fit to such extent as the Trustees shall determine; (g)
guarantee indebtedness or contractual obligations of others; (h) determine and
change the fiscal year of the Trust and the method in which its accounts shall
be kept; (i) notwithstanding the Fundamental Policies of the Trust, convert
the Trust to a master- feeder structure; provided, however, the Trust obtains
the approval of shareholders holding at least a majority of the Trust's Shares
present at a meeting of Shareholders at which a quorum is present and (j)
adopt a seal for the Trust but the absence of such seal shall not impair the
validity of any instrument executed on behalf of the Trust.
3.11 Further Powers. The Trustees shall have the power to
conduct the business of the Trust and carry on its operations in any and all
of its branches and maintain offices both within and without the State of
Delaware, in any and all states of the United States of America, in the
District of Columbia, and in any and all commonwealths, territories,
dependencies, colonies, possessions, agencies or instrumentalities of the
United States of America and of foreign governments, and to do all such other
things and execute all such instruments as they deem necessary, proper or
desirable in order to promote the interests of the Trust although such things
are not herein specifically mentioned. Any determination as to what is in the
interests of the Trust made by the Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration, the presumption shall be in
favor of a grant of power to the Trustees. The Trustees will not be required
to obtain any court order to deal with the Trust Property.
ARTICLE IV
Advisory, Management and Distribution Arrangements
4.1 Advisory and Management Arrangements. Subject to the
requirements of applicable law as in effect from time to time, the Trustees
may in their discretion from time to time enter into advisory, administration
or management contracts (including, in each case, one or more sub-advisory,
sub-administration or sub-management contracts) whereby the other party to any
such contract shall undertake to furnish the Trustees such advisory,
administrative and management services, with respect to the Trust as the
Trustees shall from time to time consider desirable and all upon such terms
and conditions as the Trustees may in their discretion determine.
Notwithstanding any provisions of this Declaration, the Trustees may authorize
any advisor, administrator or manager (subject to such general or specific
instructions as the Trustees may from time to time adopt) to effect investment
transactions with respect to the assets on behalf of the Trustees to the full
extent of the power of the Trustees to effect such transactions or may
authorize any officer, employee or Trustee to effect such transactions
pursuant to recommendations of any such advisor, administrator or manager (and
all without further action by the Trustees). Any such investment transaction
shall be deemed to have been authorized by all of the Trustees.
4.2 Distribution Arrangements. Subject to compliance with
the 1940 Act, the Trustees may retain underwriters and/or placement agents to
sell Trust Shares. The Trustees may in their discretion from time to time
enter into one or more contracts, providing for the sale of the Shares of the
Trust, whereby the Trust may either agree to sell such Shares to the other
party to the contract or appoint such other party its sales agent for such
Shares. In either case, the contract shall be on such terms and conditions as
the Trustees may in their discretion determine not inconsistent with the
provisions of this Article IV or the By-Laws; and such contract may also
provide for the repurchase or sale of Shares of the Trust by such other party
as principal or as agent of the Trust and may provide that such other party
may enter into selected dealer agreements with registered securities dealers
and brokers and servicing and similar agreements with persons who are not
registered securities dealers to further the purposes of the distribution or
repurchase of the Shares of the Trust.
4.3 Parties to Contract. Any contract of the character
described in Sections 4.1 and 4.2 of this Article IV or in Article VII hereof
may be entered into with any Person, although one or more of the Trustees,
officers or employees of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the contract, and no such
contract shall be invalidated or rendered voidable by reason of the existence
of any such relationship, nor shall any Person holding such relationship be
liable merely by reason of such relationship for any loss or expense to the
Trust under or by reason of said contract or accountable for any profit
realized directly or indirectly therefrom, provided that the contract when
entered into was reasonable and fair and not inconsistent with the provisions
of this Article IV or the By-Laws. The same Person may be the other party to
contracts entered into pursuant to Sections 4.1 and 4.2 above or Article VII,
and any individual may be financially interested or otherwise affiliated with
Persons who are parties to any or all of the contracts mentioned in this
Section 4.3.
ARTICLE V
Limitations of Liability
and Indemnification
5.1 No Personal Liability of Shareholders, Trustees, etc. No
Shareholder of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person in connection with Trust Property or the
acts, obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability as is extended to stockholders of a private
corporation for profit incorporated under the Delaware General Corporation
Law. No Trustee or officer of the Trust shall be subject in such capacity to
any personal liability whatsoever to any Person, save only liability to the
Trust or its Shareholders arising from bad faith, willful misfeasance, gross
negligence or reckless disregard for his duty to such Person; and, subject to
the foregoing exception, all such Persons shall look solely to the Trust
Property for satisfaction of claims of any nature arising in connection with
the affairs of the Trust. If any Shareholder, Trustee or officer, as such, of
the Trust, is made a party to any suit or proceeding to enforce any such
liability, subject to the foregoing exception, he shall not, on account
thereof, be held to any personal liability. Any repeal or modification of this
Section 5.1 shall not adversely affect any right or protection of a Trustee or
officer of the Trust existing at the time of such repeal or modification with
respect to acts or omissions occurring prior to such repeal or modification.
5.2 Mandatory Indemnification. (a) The Trust hereby agrees
to indemnify each person who at any time serves as a Trustee or officer of the
Trust (each such person being an "indemnitee") against any liabilities and
expenses, including amounts paid in satisfaction of judgments, in compromise
or as fines and penalties, and reasonable counsel fees reasonably incurred by
such indemnitee in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, before any court or
administrative or investigative body in which he may be or may have been
involved as a party or otherwise or with which he may be or may have been
threatened, while acting in any capacity set forth in this Article V by reason
of his having acted in any such capacity, except with respect to any matter as
to which he shall not have acted in good faith in the reasonable belief that
his action was in the best interest of the Trust or, in the case of any
criminal proceeding, as to which he shall have had reasonable cause to believe
that the conduct was unlawful, provided, however, that no indemnitee shall be
indemnified hereunder against any liability to any person or any expense of
such indemnitee arising by reason of (i) willful misfeasance, (ii) bad faith,
(iii) gross negligence, or (iv) reckless disregard of the duties involved in
the conduct of his position (the conduct referred to in such clauses (i)
through (iv) being sometimes referred to herein as "disabling conduct").
Notwithstanding the foregoing, with respect to any action, suit or other
proceeding voluntarily prosecuted by any indemnitee as plaintiff,
indemnification shall be mandatory only if the prosecution of such action,
suit or other proceeding by such indemnitee (1) was authorized by a majority
of the Trustees or (2) was instituted by the indemnitee to enforce his or her
rights to indemnification hereunder in a case in which the indemnitee is found
to be entitled to such indemnification. The rights to indemnification set
forth in this Declaration shall continue as to a person who has ceased to be a
Trustee or officer of the Trust and shall inure to the benefit of his or her
heirs, executors and personal and legal representatives. No amendment or
restatement of this Declaration or repeal of any of its provisions shall limit
or eliminate any of the benefits provided to any person who at any time is or
was a Trustee or officer of the Trust or otherwise entitled to indemnification
hereunder in respect of any act or omission that occurred prior to such
amendment, restatement or repeal.
(b) Notwithstanding the foregoing, no
indemnification shall be made hereunder unless there has been a determination
(i) by a final decision on the merits by a court or other body of competent
jurisdiction before whom the issue of entitlement to indemnification hereunder
was brought that such indemnitee is entitled to indemnification hereunder or,
(ii) in the absence of such a decision, by (1) a majority vote of a quorum of
those Trustees who are neither "interested persons" of the Trust (as defined
in Section 2(a)(19) of the ▇▇▇▇ ▇▇▇) nor parties to the proceeding
("Disinterested Non-Party Trustees"), that the indemnitee is entitled to
indemnification hereunder, or (2) if such quorum is not obtainable or even if
obtainable, if such majority so directs, independent legal counsel in a
written opinion concludes that the indemnitee should be entitled to
indemnification hereunder. All determinations to make advance payments in
connection with the expense of defending any proceeding shall be authorized
and made in accordance with the immediately succeeding paragraph (c) below.
(c) The Trust shall make advance payments in
connection with the expenses of defending any action with respect to which
indemnification might be sought hereunder if the Trust receives a written
affirmation by the indemnitee of the indemnitee's good faith belief that the
standards of conduct necessary for indemnification have been met and a written
undertaking to reimburse the Trust unless it is subsequently determined that
the indemnitee is entitled to such indemnification and if a majority of the
Trustees determine that the applicable standards of conduct necessary for
indemnification appear to have been met. In addition, at least one of the
following conditions must be met: (i) the indemnitee shall provide adequate
security for his undertaking, (ii) the Trust shall be insured against losses
arising by reason of any lawful advances, or (iii) a majority of a quorum of
the Disinterested Non-Party Trustees, or if a majority vote of such quorum so
direct, independent legal counsel in a written opinion, shall conclude, based
on a review of readily available facts (as opposed to a full trial-type
inquiry), that there is substantial reason to believe that the indemnitee
ultimately will be found entitled to indemnification.
(d) The rights accruing to any indemnitee under
these provisions shall not exclude any other right which any person may have
or hereafter acquire under this Declaration, the By-Laws of the Trust, any
statute, agreement, vote of stockholders or Trustees who are "disinterested
persons" (as defined in Section 2(a)(19) of the ▇▇▇▇ ▇▇▇) or any other right
to which he or she may be lawfully entitled.
(e) Subject to any limitations provided by the 1940
Act and this Declaration, the Trust shall have the power and authority to
indemnify and provide for the advance payment of expenses to employees, agents
and other Persons providing services to the Trust or serving in any capacity
at the request of the Trust to the full extent corporations organized under
the Delaware General Corporation Law may indemnify or provide for the advance
payment of expenses for such Persons, provided that such indemnification has
been approved by a majority of the Trustees.
5.3 No Bond Required of Trustees. No Trustee shall, as such,
be obligated to give any bond or other security for the performance of any of
his duties hereunder.
5.4 No Duty of Investigation; Notice in Trust Instruments,
etc. No purchaser, lender, transfer agent or other person dealing with the
Trustees or with any officer, employee or agent of the Trust shall be bound to
make any inquiry concerning the validity of any transaction purporting to be
made by the Trustees or by said officer, employee or agent or be liable for
the application of money or property paid, loaned, or delivered to or on the
order of the Trustees or of said officer, employee or agent. Every obligation,
contract, undertaking, instrument, certificate, Share, other security of the
Trust, and every other act or thing whatsoever executed in connection with the
Trust shall be conclusively taken to have been executed or done by the
executors thereof only in their capacity as Trustees under this Declaration or
in their capacity as officers, employees or agents of the Trust. The Trustees
may maintain insurance for the protection of the Trust Property, its
Shareholders, Trustees, officers, employees and agents in such amount as the
Trustees shall deem adequate to cover possible tort liability, and such other
insurance as the Trustees in their sole judgment shall deem advisable or is
required by the 1940 Act.
5.5 Reliance on Experts, etc. Each Trustee and officer or
employee of the Trust shall, in the performance of its duties, be fully and
completely justified and protected with regard to any act or any failure to
act resulting from reliance in good faith upon the books of account or other
records of the Trust, upon an opinion of counsel, or upon reports made to the
Trust by any of the Trust's officers or employees or by any advisor,
administrator, manager, distributor, selected dealer, accountant, appraiser or
other expert or consultant selected with reasonable care by the Trustees,
officers or employees of the Trust, regardless of whether such counsel or
expert may also be a Trustee.
ARTICLE VI
Shares of Beneficial Interest
6.1 Beneficial Interest. The interest of the beneficiaries
hereunder shall be divided into an unlimited number of transferable shares of
beneficial interest, par value $.001 per share. All Shares issued in
accordance with the terms hereof, including, without limitation, Shares issued
in connection with a dividend in Shares or a split of Shares, shall be fully
paid and, except as provided in the last sentence of Section 3.8,
nonassessable when the consideration determined by the Trustees (if any)
therefor shall have been received by the Trust.
6.2 Other Securities. The Trustees may, subject to the
Fundamental Policies and the requirements of the 1940 Act, authorize and issue
such other securities of the Trust as they determine to be necessary,
desirable or appropriate, having such terms, rights, preferences, privileges,
limitations and restrictions as the Trustees see fit, including preferred
interests, debt securities or other senior securities. To the extent that the
Trustees authorize and issue preferred shares of any class or series, they are
hereby authorized and empowered to amend or supplement this Declaration as
they deem necessary or appropriate, including to comply with the requirements
of the 1940 Act or requirements imposed by the rating agencies or other
Persons, all without the approval of Shareholders. Any such supplement or
amendment shall be filed as is necessary. The Trustees are also authorized to
take such actions and retain such persons as they see fit to offer and sell
such securities.
6.3 Rights of Shareholders. The Shares shall be personal
property giving only the rights in this Declaration specifically set forth.
The ownership of the Trust Property of every description and the right to
conduct any business herein before described are vested exclusively in the
Trustees, and the Shareholders shall have no interest therein other than the
beneficial interest conferred by their Shares, and they shall have no right to
call for any partition or division of any property, profits, rights or
interests of the Trust nor can they be called upon to share or assume any
losses of the Trust or, subject to the right of the Trustees to charge certain
expenses directly to Shareholders, as provided in the last sentence of Section
3.8, suffer an assessment of any kind by virtue of their ownership of Shares.
The Shares shall not entitle the holder to preference, preemptive, appraisal,
conversion or exchange rights (except as specified in this Section 6.3, in
Section 11.4 or as specified by the Trustees when creating the Shares, as in
preferred shares).
6.4 Trust Only. It is the intention of the Trustees to
create only the relationship of Trustee and beneficiary between the Trustees
and each Shareholder from time to time. It is not the intention of the
Trustees to create a general partnership, limited partnership, joint stock
association, corporation, bailment or any form of legal relationship other
than a trust. Nothing in this Declaration shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners or members
of a joint stock association.
6.5 Issuance of Shares. The Trustees, in their discretion,
may from time to time without vote of the Shareholders issue Shares including
preferred shares that may have been established pursuant to Section 6.2, in
addition to the then issued and outstanding Shares and Shares held in the
treasury, to such party or parties and for such amount and type of
consideration, including cash or property, at such time or times, and on such
terms as the Trustees may determine, and may in such manner acquire other
assets (including the acquisition of assets subject to, and in connection with
the assumption of, liabilities) and businesses. The Trustees may from time to
time divide or combine the Shares into a greater or lesser number without
thereby changing the proportionate beneficial interest in such Shares.
Issuances and redemptions of Shares may be made in whole Shares and/or
l/l,000ths of a Share or multiples thereof as the Trustees may determine.
6.6 Register of Shares. A register shall be kept at the
offices of the Trust or any transfer agent duly appointed by the Trustees
under the direction of the Trustees which shall contain the names and
addresses of the Shareholders and the number of Shares held by them
respectively and a record of all transfers thereof. Separate registers shall
be established and maintained for each class or series of Shares. Each such
register shall be conclusive as to who are the holders of the Shares of the
applicable class or series of Shares and who shall be entitled to receive
dividends or distributions or otherwise to exercise or enjoy the rights of
Shareholders. No Shareholder shall be entitled to receive payment of any
dividend or distribution, nor to have notice given to him as herein provided,
until he has given his address to a transfer agent or such other officer or
agent of the Trustees as shall keep the register for entry thereon. It is not
contemplated that certificates will be issued for the Shares; however, the
Trustees, in their discretion, may authorize the issuance of share
certificates and promulgate appropriate fees therefore and rules and
regulations as to their use.
6.7 Transfer Agent and Registrar. The Trustees shall have
power to employ a transfer agent or transfer agents, and a registrar or
registrars, with respect to the Shares. The transfer agent or transfer agents
may keep the applicable register and record therein, the original issues and
transfers, if any, of the said Shares. Any such transfer agents and/or
registrars shall perform the duties usually performed by transfer agents and
registrars of certificates of stock in a corporation, as modified by the
Trustees.
6.8 Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by its agent thereto
duly authorized in writing, upon delivery to the Trustees or a transfer agent
of the Trust of a duly executed instrument of transfer, together with such
evidence of the genuineness of each such execution and authorization and of
other matters as may reasonably be required. Upon such delivery the transfer
shall be recorded on the applicable register of the Trust. Until such record
is made, the Shareholder of record shall be deemed to be the holder of such
Shares for all purposes hereof and neither the Trustees nor any transfer agent
or registrar nor any officer, employee or agent of the Trust shall be affected
by any notice of the proposed transfer.
Any person becoming entitled to any Shares in consequence of
the death, bankruptcy, or incompetence of any Shareholder, or otherwise by
operation of law, shall be recorded on the applicable register of Shares as
the holder of such Shares upon production of the proper evidence thereof to
the Trustees or a transfer agent of the Trust, but until such record is made,
the Shareholder of record shall be deemed to be the holder of such for all
purposes hereof, and neither the Trustees nor any transfer agent or registrar
nor any officer or agent of the Trust shall be affected by any notice of such
death, bankruptcy or incompetence, or other operation of law.
6.9 Notices. Any and all notices to which any Shareholder
hereunder may be entitled and any and all communications shall be deemed duly
served or given if mailed, postage prepaid, addressed to any Shareholder of
record at his last known address as recorded on the applicable register of the
Trust.
ARTICLE VII
Custodians
7.1 Appointment and Duties. The Trustees shall at all times
employ a custodian or custodians, meeting the qualifications for custodians
for portfolio securities of investment companies contained in the 1940 Act, as
custodian with respect to the assets of the Trust. Any custodian shall have
authority as agent of the Trust with respect to which it is acting as
determined by the custodian agreement or agreements, but subject to such
restrictions, limitations and other requirements, if any, as may be contained
in the By-Laws of the Trust and the 1940 Act:
(1) to hold the securities owned by the Trust and deliver
the same upon written order;
(2) to receive any receipt for any moneys due to the Trust
and deposit the same in its own banking department (if a bank) or
elsewhere as the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Trustees, to keep the books and
accounts of the Trust and furnish clerical and accounting services;
and
(5) if authorized to do so by the Trustees, to compute the
net income or net asset value of the Trust;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian.
The Trustees may also authorize each custodian to employ one
or more sub-custodians from time to time to perform such of the acts and
services of the custodian and upon such terms and conditions, as may be agreed
upon between the custodian and such sub-custodian and approved by the
Trustees, provided that in every case such sub-custodian shall meet the
qualifications for custodians contained in the 1940 Act.
7.2 Central Certificate System. Subject to such rules,
regulations and orders as the Commission may adopt, the Trustees may direct
the custodian to deposit all or any part of the securities owned by the Trust
in a system for the central handling of securities established by a national
securities exchange or a national securities association registered with the
Commission under the Securities Exchange Act of 1934, or such other Person as
may be permitted by the Commission, or otherwise in accordance with the 1940
Act, pursuant to which system all securities of any particular class of any
issuer deposited within the system are treated as fungible and may be
transferred or pledged by bookkeeping entry without physical delivery of such
securities, provided that all such deposits shall be subject to withdrawal
only upon the order of the Trust.
ARTICLE VIII
Redemption
8.1 Redemptions. The Shares of the Trust are not redeemable
by the holders.
8.2 Disclosure of Holding. The holders of Shares or other
securities of the Trust shall upon demand disclose to the Trustees in writing
such information with respect to direct and indirect ownership of Shares or
other securities of the Trust as the Trustees deem necessary to comply with
the provisions of the Code, the 1940 or other applicable laws or regulations,
or to comply with the requirements of any other taxing or regulatory
authority.
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions
9.1 Net Asset Value. The net asset value of each outstanding
Share of the Trust shall be determined at such time or times on such days as
the Trustees may determine, in accordance with the 1940 Act. The method of
determination of net asset value shall be determined by the Trustees and shall
be as set forth in the Prospectus or as may otherwise be determined by the
Trustees. The power and duty to make the net asset value calculations may be
delegated by the Trustees and shall be as generally set forth in the
Prospectus or as may otherwise be determined by the Trustees.
9.2 Distributions to Shareholders. (a) The Trustees shall
from time to time distribute ratably among the Shareholders of any class of
Shares, or any series of any such class, in accordance with the number of
outstanding full and fractional Shares of such class or any series of such
class, such proportion of the net profits, surplus (including paid-in
surplus), capital, or assets held by the Trustees as they may deem proper or
as may otherwise be determined in accordance with this Declaration. Any such
distribution may be made in cash or property (including without limitation any
type of obligations of the Trust or any assets thereof) or Shares of any class
or series or any combination thereof, and the Trustees may distribute ratably
among the Shareholders of any class of shares or series of any such class, in
accordance with the number of outstanding full and fractional Shares of such
class or any series of such class, additional Shares of any class or series in
such manner, at such times, and on such terms as the Trustees may deem proper
or as may otherwise be determined in accordance with this Declaration.
(b) Distributions pursuant to this Section 9.2 may
be among the Shareholders of record of the applicable class or series of
Shares at the time of declaring a distribution or among the Shareholders of
record at such later date as the Trustees shall determine and specify.
(c) The Trustees may always retain from the net
profits such amount as they may deem necessary to pay the debts or expenses of
the Trust or to meet obligations of the Trust, or as they otherwise may deem
desirable to use in the conduct of its affairs or to retain for future
requirements or extensions of the business.
(d) Inasmuch as the computation of net income and
gains for Federal income tax purposes may vary from the computation thereof on
the books, the above provisions shall be interpreted to give the Trustees the
power in their discretion to distribute for any fiscal year as ordinary
dividends and as capital gains distributions, respectively, additional amounts
sufficient to enable the Trust to avoid or reduce liability for taxes.
9.3 Power to Modify Foregoing Procedures. Notwithstanding
any of the foregoing provisions of this Article IX, the Trustees may
prescribe, in their absolute discretion except as may be required by the 1940
Act, such other bases and times for determining the per share asset value of
the Trust's Shares or net income, or the declaration and payment of dividends
and distributions as they may deem necessary or desirable for any reason,
including to enable the Trust to comply with any provision of the 1940 Act, or
any securities exchange or association registered under the Securities
Exchange Act of 1934, or any order of exemption issued by the Commission, all
as in effect now or hereafter amended or modified.
ARTICLE X
Shareholders
10.1 Meetings of Shareholders. The Trust shall hold annual
meetings of the Shareholders (provided that the Trust's initial annual meeting
of Shareholders may occur up to one year after the completion of its initial
fiscal year). A special meeting of Shareholders may be called at any time by a
majority of the Trustees or the President and shall be called by any Trustee
for any proper purpose upon written request of Shareholders of the Trust
holding in the aggregate not less than 51% of the outstanding Shares of the
Trust or class or series of Shares having voting rights on the matter, such
request specifying the purpose or purposes for which such meeting is to be
called. Any shareholder meeting, including a Special Meeting, shall be held
within or without the State of Delaware on such day and at such time as the
Trustees shall designate.
10.2 Voting. Shareholders shall have no power to vote on any
matter except matters on which a vote of Shareholders is required by
applicable law, this Declaration or resolution of the Trustees. Except as
otherwise provided herein, any matter required to be submitted to Shareholders
and affecting one or more classes or series of Shares shall require approval
by the required vote of all the affected classes and series of Shares voting
together as a single class; provided, however, that as to any matter with
respect to which a separate vote of any class or series of Shares is required
by the 1940 Act, such requirement as to a separate vote by that class or
series of Shares shall apply in addition to a vote of all the affected classes
and series voting together as a single class. Shareholders of a particular
class or series of Shares shall not be entitled to vote on any matter that
affects only one or more other classes or series of Shares. There shall be no
cumulative voting in the election or removal of Trustees.
10.3 Notice of Meeting and Record Date. Notice of all
meetings of Shareholders, stating the time, place and purposes of the meeting,
shall be given by the Trustees by mail to each Shareholder of record entitled
to vote thereat at its registered address, mailed at least 10 days and not
more than 90 days before the meeting or otherwise in compliance with
applicable law. Only the business stated in the notice of the meeting shall be
considered at such meeting. Any adjourned meeting may be held as adjourned one
or more times without further notice not later than 120 days after the record
date. For the purposes of determining the Shareholders who are entitled to
notice of and to vote at any meeting the Trustees may, without closing the
transfer books, fix a date not more than 90 nor less than 10 days prior to the
date of such meeting of Shareholders as a record date for the determination of
the Persons to be treated as Shareholders of record for such purposes.
10.4 Quorum and Required Vote. (a) The holders of a majority
of the Shares entitled to vote on any matter at a meeting present in person or
by proxy shall constitute a quorum at such meeting of the Shareholders for
purposes of conducting business on such matter. The absence from any meeting,
in person or by proxy, of a quorum of Shareholders for action upon any given
matter shall not prevent action at such meeting upon any other matter or
matters which may properly come before the meeting, if there shall be present
thereat, in person or by proxy, a quorum of Shareholders in respect of such
other matters.
(b) Subject to any provision of applicable law, this
Declaration or a resolution of the Trustees specifying a greater or a lesser
vote requirement for the transaction of any item of business at any meeting of
Shareholders, (i) the affirmative vote of a majority of the Shares present in
person or represented by proxy and entitled to vote on the subject matter
shall be the act of the Shareholders with respect to such matter, and (ii)
where a separate vote of one or more classes or series of Shares is required
on any matter, the affirmative vote of a majority of the Shares of such class
or series of Shares present in person or represented by proxy at the meeting
shall be the act of the Shareholders of such class or series with respect to
such matter.
10.5 Proxies, etc. At any meeting of Shareholders, any
holder of Shares entitled to vote thereat may vote by properly executed proxy,
provided that no proxy shall be voted at any meeting unless it shall have been
placed on file with the Secretary, or with such other officer or agent of the
Trust as the Secretary may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of a majority of the
Trustees, proxies may be solicited in the name of one or more Trustees or one
or more of the officers or employees of the Trust. No proxy shall be valid
after the expiration of 11 months from the date thereof, unless otherwise
provided in the proxy. Only Shareholders of record shall be entitled to vote.
Each full Share shall be entitled to one vote and fractional Shares shall be
entitled to a vote of such fraction. When any Share is held jointly by several
persons, any one of them may vote at any meeting in person or by proxy in
respect of such Share, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Share. 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.
If the holder of any such Share is a minor or a person of unsound mind, and
subject to guardianship or to the legal control of any other person as regards
the charge or management of such Share, he may vote by his guardian or such
other person appointed or having such control, and such vote may be given in
person or by proxy.
10.6 Reports. The Trustees shall cause to be prepared at
least annually and more frequently to the extent and in the form required by
law, regulation or any exchange on which Trust Shares are listed a report of
operations containing a balance sheet and statement of income and
undistributed income of the Trust prepared in conformity with generally
accepted accounting principles and an opinion of an independent public
accountant on such financial statements. Copies of such reports shall be
mailed to all Shareholders of record within the time required by the 1940 Act,
and in any event within a reasonable period preceding the meeting of
Shareholders. The Trustees shall, in addition, furnish to the Shareholders at
least semi-annually to the extent required by law, interim reports containing
an unaudited balance sheet of the Trust as of the end of such period and an
unaudited statement of income and surplus for the period from the beginning of
the current fiscal year to the end of such period.
10.7 Inspection of Records. The records of the Trust shall
be open to inspection by Shareholders to the same extent as is permitted
shareholders of a corporation formed under the Delaware General Corporation
Law.
10.8 Shareholder Action by Written Consent. Any action which
may be taken by Shareholders by vote may be taken without a meeting if the
holders entitled to vote thereon of the proportion of Shares required for
approval of such action at a meeting of Shareholders pursuant to Section 10.4
consent to the action in writing and the 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.
ARTICLE XI
Duration; Termination of Trust;
Amendment; Mergers, Etc.
11.1 Duration. Subject to possible termination in accordance
with the provisions of Section 11.2 hereof, the Trust created hereby shall
have perpetual existence.
11.2 Termination. (a) The Trust may be dissolved, after a
majority of the Trustees have approved a resolution therefor, upon approval by
not less than 75% of the Shares of each class or series outstanding and
entitled to vote, voting as separate classes or series, unless such resolution
has been approved by 80% of the Trustees, in which case approval by a Majority
Shareholder Vote shall be required. Upon the dissolution of the Trust:
(i) The Trust shall carry on no business
except for the purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up
the affairs of the Trust and all of the powers of the Trustees under
this Declaration shall continue until the affairs of the Trust shall
have been wound up, including the power to fulfill or discharge the
contracts of the Trust, collect its assets, sell, convey, assign,
exchange, merge where the Trust is not the survivor, transfer or
otherwise dispose of all or any part of the remaining Trust Property
to one or more Persons at public or private sale for consideration
which may consist in whole or in part in cash, securities or other
property of any kind, discharge or pay its liabilities, and do all
other acts appropriate to liquidate its business; provided that any
sale, conveyance, assignment, exchange, merger in which the Trust is
not the survivor, transfer or other disposition of all or
substantially all the Trust Property of the Trust shall require
approval of the principal terms of the transaction and the nature and
amount of the consideration by Shareholders with the same vote as
required to open-end the Trust.
(iii) After paying or adequately providing
for the payment of all liabilities, and upon receipt of such
releases, indemnities and refunding agreements, as they deem
necessary for their protection, the Trustees may distribute the
remaining Trust Property, in cash or in kind or partly each, among
the Shareholders according to their respective rights.
(b) After the winding up and termination of the
Trust and distribution to the Shareholders as herein provided, a majority of
the Trustees shall execute and lodge among the records of the Trust an
instrument in writing setting forth the fact of such termination and shall
execute and file a certificate of cancellation with the Secretary of State of
the State of Delaware. Upon termination of the Trust, the Trustees shall
thereupon be discharged from all further liabilities and duties hereunder, and
the rights and interests of all Shareholders shall thereupon cease.
11.3 Amendment Procedure. (a) Except as provided in
subsection (b) of this Section 11.3, this Declaration may be amended, after a
majority of the Trustees have approved a resolution therefor, by the
affirmative vote of the holders of not less than a majority of the affected
Shares. The Trustees also may amend this Declaration without any vote of
Shareholders of any class of series to divide the Shares of the Trust into one
or more classes or additional classes, or one or more series of any such class
or classes, to change the name of the Trust or any class or series of Shares,
to make any change that does not adversely affect the relative rights or
preferences of any Shareholder, as they may deem necessary, or to conform this
Declaration to the requirements of the 1940 Act or any other applicable
federal laws or regulations including pursuant to Section 6.2 or the
requirements of the regulated investment company provisions of the Code, but
the Trustees shall not be liable for failing to do so.
(b) No amendment may be made to Section 2.1,
Section 2.2, Section 2.3, Section 3.9, Section 5.1, Section 5.2, Section
11.2(a), this Section 11.3, Section 11.4, Section 11.6 or Section 11.7 of this
Declaration and no amendment may be made to this Declaration which would
change any rights with respect to any Shares of the Trust by reducing the
amount payable thereon upon liquidation of the Trust or by diminishing or
eliminating any voting rights pertaining thereto (except that this provision
shall not limit the ability of the Trustees to authorize, and to cause the
Trust to issue, other securities pursuant to Section 6.2), except after a
majority of the Trustees have approved a resolution therefor, by the
affirmative vote of the holders of not less than seventy-five percent (75%) of
the Shares of each affected class or series outstanding, voting as separate
classes or series, unless such amendment has been approved by 80% of the
Trustees, in which case approval by a Majority Shareholder Vote shall be
required. Nothing contained in this Declaration shall permit the amendment of
this Declaration to impair the exemption from personal liability of the
Shareholders, Trustees, officers, employees and agents of the Trust or to
permit assessments upon Shareholders.
(c) An amendment duly adopted by the requisite vote
of the Board of Trustees and, if required, the Shareholders as aforesaid,
shall become effective at the time of such adoption or at such other time as
may be designated by the Board of Trustees or Shareholders, as the case may
be. A certification in recordable form signed by a majority of the Trustees
setting forth an amendment and reciting that it was duly adopted by the
Trustees and, if required, the Shareholders as aforesaid, or a copy of the
Declaration, as amended, in recordable form, and executed by a majority of the
Trustees, shall be conclusive evidence of such amendment when lodged among the
records of the Trust or at such other time designated by the Board.
Notwithstanding any other provision hereof, until such time
as a Registration Statement under the Securities Act of 1933, as amended,
covering the first public offering of Shares of the Trust shall have become
effective, this Declaration may be terminated or amended in any respect by the
affirmative vote of a majority of the Trustees or by an instrument signed by a
majority of the Trustees.
11.4 Merger, Consolidation and Sale of Assets. Except as
provided in Section 11.7, 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 the Trust Property or the property,
including its good will, upon such terms and conditions and for such
consideration when and as authorized by two- thirds of the Trustees and
approved by a Majority Shareholder Vote and any such merger, consolidation,
sale, lease or exchange shall be determined for all purposes to have been
accomplished under and pursuant to the statutes of the State of Delaware.
11.5 Subsidiaries. Without approval by Shareholders, the
Trustees may cause to be organized or assist in organizing one or more
corporations, trusts, partnerships, associations or other organizations to
take over all of the Trust Property or to carry on any business in which the
Trust shall directly or indirectly have any interest, and to sell, convey and
transfer all or a portion of the Trust Property to any such corporation,
trust, limited liability company, association or organization in exchange for
the shares or securities thereof, or otherwise, and to lend money to,
subscribe for the shares or securities of, and enter into any contracts with
any such corporation, trust, limited liability company, partnership,
association or organization, or any corporation, partnership, trust, limited
liability company, association or organization in which the Trust holds or is
about to acquire shares or any other interests.
11.6 Conversion. Notwithstanding any other provisions of
this Declaration or the By-Laws of the Trust, a favorable vote of a majority
of the Trustees then in office followed by the favorable vote of the holders
of not less than seventy-five percent (75%) of the Shares of each affected
class or series outstanding, voting as separate classes or series, shall be
required to approve, adopt or authorize an amendment to this Declaration that
makes the Shares a "redeemable security" as that term is defined in the 1940
Act, unless such amendment has been approved by 80% of the Trustees, in which
case approval by a Majority Shareholder Vote shall be required. Upon the
adoption of a proposal to convert the Trust from a "closed-end company" to an
"open-end company" as those terms are defined by the 1940 Act and the
necessary amendments to this Declaration to permit such a conversion of the
Trust's outstanding Shares entitled to vote, the Trust 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.
11.7 Certain Transactions. (a) Notwithstanding any other
provision of this Declaration and subject to the exceptions provided in
paragraph (d) of this Section, the types of transactions described in
paragraph (c) of this Section shall require the affirmative vote or consent of
a majority of the Trustees then in office followed by the affirmative vote of
the holders of not less than seventy-five percent (75%) of the Shares of each
affected class or series outstanding, voting as separate classes or series,
when a Principal Shareholder (as defined in paragraph (b) of this Section) is
a party to the transaction. Such affirmative vote or consent shall be in
addition to the vote or consent of the holders of Shares otherwise required by
law or by the terms of any class or series of preferred stock, whether now or
hereafter authorized, or any agreement between the Trust and any national
securities exchange.
(b) The term "Principal Shareholder" shall mean any
corporation, Person or other entity which is the beneficial owner, directly or
indirectly, of five percent (5%) or more of the outstanding Shares of any
class or series and shall include any affiliate or associate, as such terms
are defined in clause (ii) below, of a Principal Shareholder. For the purposes
of this Section, in addition to the Shares which a corporation, Person or
other entity beneficially owns directly, (a) any corporation, Person or other
entity shall be deemed to be the beneficial owner of any Shares (i) which it
has the right to acquire pursuant to any agreement or upon exercise of
conversion rights or warrants, or otherwise (but excluding share options
granted by the Trust) or (ii) which are beneficially owned, directly or
indirectly (including Shares deemed owned through application of clause (i)
above), by any other corporation, Person or entity with which its "affiliate"
or "associate" (as defined below) has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of
Shares, or which is its "affiliate" or "associate" as those terms are defined
in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, and (b) the outstanding Shares shall include Shares
deemed owned through application of clauses (i) and (ii) above but shall not
include any other Shares which may be issuable pursuant to any agreement, or
upon exercise of conversion rights or warrants, or otherwise.
(c) This Section shall apply to the following
transactions:
(i) The merger or consolidation of the
Trust or any subsidiary of the Trust with or into any Principal
Shareholder.
(ii) The issuance of any securities of the
Trust to any Principal Shareholder for cash (other than pursuant to
any automatic dividend reinvestment plan).
(iii) The sale, lease or exchange of all
or any substantial part of the assets of the Trust to any Principal
Shareholder (except assets having an aggregate fair market value of
less than $1,000,000, aggregating for the purpose of such computation
all assets sold, leased or exchanged in any series of similar
transactions within a twelve-month period.)
(iv) The sale, lease or exchange to the
Trust or any subsidiary thereof, in exchange for securities of the
Trust, of any assets of any Principal Shareholder (except assets
having an aggregate fair market value of less than $1,000,000,
aggregating for the purposes of such computation all assets sold,
leased or exchanged in any series of similar transactions within a
twelve-month period).
(d) The provisions of this Section shall not be
applicable to (i) any of the transactions described in paragraph (c) of this
Section if 80% of the Trustees shall by resolution have approved a memorandum
of understanding with such Principal Shareholder with respect to and
substantially consistent with such transaction, in which case approval by a
Majority Shareholder Vote shall be the only vote of Shareholders required by
this Section, or (ii) any such transaction with any entity of which a majority
of the outstanding shares of all classes and series of a stock normally
entitled to vote in elections of directors is owned of record or beneficially
by the Trust and its subsidiaries.
(e) The Board of Trustees shall have the power and
duty to determine for the purposes of this Section on the basis of information
known to the Trust whether (i) a corporation, person or entity beneficially
owns five percent (5%) or more of the outstanding Shares of any class or
series, (ii) a corporation, person or entity is an "affiliate" or "associate"
(as defined above) of another, (iii) the assets being acquired or leased to or
by the Trust or any subsidiary thereof constitute a substantial part of the
assets of the Trust and have an aggregate fair market value of less than
$1,000,000, and (iv) the memorandum of understanding referred to in paragraph
(d) hereof is substantially consistent with the transaction covered thereby.
Any such determination shall be conclusive and binding for all purposes of
this Section.
ARTICLE XII
Miscellaneous
12.1 Filing. (a) This Declaration and any amendment or
supplement hereto shall be filed in such places as may be required or as the
Trustees deem appropriate. Each amendment or supplement shall be accompanied
by a certificate signed and acknowledged by a Trustee stating that such action
was duly taken in a manner provided herein, and shall, upon insertion in the
Trust's minute book, be conclusive evidence of all amendments contained
therein. A restated Declaration, containing the original Declaration and all
amendments and supplements theretofore made, may be executed from time to time
by a majority of the Trustees and shall, upon insertion in the Trust's minute
book, be conclusive evidence of all amendments and supplements contained
therein and may thereafter be referred to in lieu of the original Declaration
and the various amendments and supplements thereto.
(b) The Trustees hereby authorize and direct a
Certificate of Trust, in the form attached hereto as Exhibit A, to be executed
and filed with the Office of the Secretary of State of the State of Delaware
in accordance with the Delaware Business Trust Act.
12.2 Resident Agent. The Trust shall maintain a resident
agent in the State of Delaware, which agent shall initially be The Corporation
Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ The Trustees may
designate a successor resident agent, provided, however, that such appointment
shall not become effective until written notice thereof is delivered to the
office of the Secretary of the State.
12.3 Governing Law. This Declaration is executed by the
Trustees and delivered in the State of Delaware and with reference to the laws
thereof, and the rights of all parties and the validity and construction of
every provision hereof shall be subject to and construed according to laws of
said State and reference shall be specifically made to the Delaware General
Corporation Law as to the construction of matters not specifically covered
herein or as to which an ambiguity exists, although such law shall not be
viewed as limiting the powers otherwise granted to the Trustees hereunder and
any ambiguity shall be viewed in favor of such powers.
12.4 Counterparts. This Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
12.5 Reliance by Third Parties. Any certificate executed by
an individual who, according to the records of the Trust, or of any recording
office in which this Declaration may be recorded, appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the name of the Trust, (c) the due authorization of the
execution of any instrument or writing, (d) the form of any vote passed at a
meeting of Trustees or Shareholders, (e) the fact that the number of Trustees
or Shareholders present at any meeting or executing any written instrument
satisfies the requirements of this Declaration, (f) the form of any By Laws
adopted by or the identity of any officers elected by the Trustees, or (g) the
existence of any fact or facts which in any manner relate to the affairs of
the Trust, shall be conclusive evidence as to the matters so certified in
favor of any person dealing with the Trustees and their successors.
12.6 Provisions in Conflict with Law or Regulation. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company provisions of the
Internal Revenue Code or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Declaration; provided, however, that such determination shall not affect any
of the remaining provisions of this Declaration or render invalid or improper
any action taken or omitted prior to such determination.
(b) If any provision of this Declaration shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above written.
By: _________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Sole Trustee
