XXXXX XXX INSTITUTIONAL FLOATING RATE INCOME TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts,
this 13th day of August, 1998, by the Trustee 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 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 "Xxxxx Xxx Institutional
Floating Rate 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 or, if more than one series or class of
Shares is authorized by the Trustees, the equal proportionate
transferable units into which each series or class of Shares shall
be divided from time to time;
(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", "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) and "Person" 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;
(h) "Bylaws" shall mean the Bylaws of the Trust as amended from
time to time;
(i) The term "series" or "series of Shares" refers to the
division of Shares into two or more series as provided in Article
III, Section 1 hereof;
(j) The term "class" or "class of Shares" refers to the division
of Shares representing any series into two or more class as
provided in Article III, Section 1 hereof; and
(k) "Continuing Trustee" shall mean any Trustee (i) who is not a
Person, or an Affiliated Person of a Person, who enters or
proposes to enter into any transaction with the Trust described in
Section 5 of Article IX hereof (an "Interested Party") and (ii)
who has been a Trustee for a period of at least twelve months (or
since the commencement of the Trust's operations if that period is
less than twelve months), or is a successor to a Continuing
Trustee who is not an Interested Party and was recommended or
elected to succeed a Continuing Trustee by a majority of the then
Continuing Trustees.
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 Trustees may, without Shareholder approval,
authorize one or more series of Shares (which series may be
divided into two or more classes), Shares of each such series or
class having such preferences, voting powers and special or
relative rights or privileges (including conversion rights, if
any) as the Trustees may determine and as shall be set forth in
the Bylaws. The number of Shares of each series or class
authorized shall be unlimited except as the Bylaws may otherwise
provide. The Trustees may from time to time divide or combine the
Shares of any series or class into a greater or lesser number
without thereby changing the proportionate beneficial interest in
the series or class.
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 of each series or class and as to the
number of Shares of each series or class 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 Declaration of Trust or the
Bylaws. Every Shareholder by virtue of having become a
Shareholder shall be held to have expressly assented and agreed to
the terms of this Declaration of Trust and the Bylaws and to have
become a party hereto and thereto. 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. A Trustee may be elected either by the Trustees or by
the Shareholders. The number of Trustees shall be fixed from time
to time by the Trustees. Each Trustee elected by the Trustees or
the Shareholders shall serve until he or she retires, resigns, is
removed or dies or until the next meeting of Shareholders called
for the purpose of electing Trustees and until the election and
qualification of his successor. At any meeting called for the
purpose, a Trustee may be removed by vote of the holders of two-
thirds of the outstanding Shares. The initial Trustee, who shall
serve until the first meeting of Shareholders at which Trustees
are elected and until his successor is elected and qualified, or
until he sooner dies, resigns or is removed, shall be Xxxxxxx X.
Xxxxx.
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 of one or more series
or classes. Subject to the voting power of one or more series or
classes of Shares as set forth in the Bylaws, the Trustees 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 any or all of 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 of 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 the extent necessary or appropriate to give effect to the
preferences and special or relative rights or privileges of any
series or classes of Shares, to allocate assets, liabilities,
income and expenses of the Trust to a particular series or class
of Shares or to apportion the same among two or more series or
classes;
(g) 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;
(h) To join 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;
(i) 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;
(j) To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(k) To borrow funds;
(l) 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 or all of such obligations;
(m) 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 of the Trust, 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;
(n) 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; and
(o) To purchase or otherwise acquire Shares.
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 the
Trustees (a quorum being present), within or without
Massachusetts. Except as otherwise provided herein or from time
to time in the Bylaws, any action to be taken by the Trustees may
be taken at a 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 consent of a majority of the
Trustees then in office (or such greater number as may be required
by this Declaration of Trust or the Bylaws).
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,
or of or for any parent or affiliate of any 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 principal
underwriter's or distributor's contract, or transfer, Shareholder
servicing or other agency contract with one or more other
corporations, 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. Subject to the voting powers of one or more series or
classes of Shares as set forth in this Declaration of Trust or in
the Bylaws, the Shareholders shall have power to vote only (i) for
the election of Trustees as provided in Article IV, Section 1,
(ii) for the removal of Trustees as provided in Article IV,
Section 1, (iii) with respect to any Manager as provided in
Article IV, Section 6, (iv) with respect to any termination of
this Trust to the extent and as provided in Article IX, Section 4,
(v) with respect to any merger, consolidation or sale of assets of
the Trust to the extent and as provided in Article IX, Section 5,
(vi) with respect to any conversion of the Trust to the extent and
as provided in Article IX, Section 6, (vii) with respect to any
amendment of this Declaration of Trust to the extent and as
provided in Article IX, Section 9, (viii) to the same extent as
the stockholders of a Massachusetts business corporation as to
whether or not a court action, proceeding or claim should or
should not be brought or maintained derivatively or as a class
action on behalf of the Trust or the Shareholders, and (ix) 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 Securities and Exchange
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. Notwithstanding any other
provision of this Declaration of Trust, on any matter submitted to
a vote of Shareholders, all Shares of the Trust then entitled to
vote shall, except as otherwise provided in the Bylaws, be voted
in the aggregate as a single class without regard to series or
classes of Shares. 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 of any series or class are issued, the Trustees may
exercise all rights of Shareholders and may take any action
required by law, this Declaration of Trust or the Bylaws to be
taken by Shareholders as to such series or class.
Voting Power and Meetings
Section 2. Meetings of Shareholders of any or all series or
classes may be called by the Trustees from time to time for the
purpose of taking action upon any matter requiring the vote or
authority of the Shareholders of such series or class 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 of all series and classes 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 of all series and classes 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. A majority of Shares entitled to vote on a particular
matter shall be a quorum for the transaction of business on that
matter at a Shareholders' meeting, except that where this
Declaration of Trust or the Bylaws require that holders of any
series or class shall vote as an individual series or class, then
a majority of the aggregate number of Shares of that series or
class entitled to vote shall be necessary to constitute a quorum
for the transaction of business by that series or class. Any
lesser number 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 different 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, provided that where the Bylaws require that
the holders of any series or class shall vote as an individual
series or class, a majority of the Shares of that series or class
voted on the matter (or a plurality with respect to the election
of a Trustee) shall decide that matter insofar as that series or
class is concerned.
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 different 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, not
inconsistent with this Declaration of Trust, regarding
Shareholders' voting powers, the conduct of meetings and related
matters.
ARTICLE VI
Distributions
The Trustees may each year, or more frequently if they so
determine, distribute to the Shareholders of each series or class
such amounts as the Trustees may determine, subject to the
preferences and special or relative rights or privileges of the
various series or classes of Shares. Any such distribution to the
Shareholders of a particular series or class shall be made to said
Shareholders pro rata in proportion to the number of Shares of
such series or class held by each of them. Such distributions
shall be made in cash or Shares or other property or a combination
thereof as determined by the Trustees.
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 in 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
Trustees, 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 losses
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 acts on the
matter), or independent legal counsel in a written opinion, shall
have determined, based upon a 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 acts 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
Securities and Exchange 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.
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 shall look only to the assets
of the Trust for payment under such credit, contract or claim, and
neither the Shareholders nor the Trustees, nor any of the Trust's
officers, employees or agents, whether past, present or future,
shall be personally liable therefor. 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 State 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. 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 Trustees
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. Subject to the voting powers
of one or more series or classes of Shares as set forth in this
Declaration of Trust or the Bylaws, the Trust may be terminated at
any time (i) by vote of Shareholders holding at least three-
fourths of the Shares entitled to vote (except if such termination
is recommended by at least three-fourths of the total number of
the Trustees then in office and by at least three-fourths of the
total number of Continuing Trustees then in office, a Majority
Shareholder Vote shall be sufficient authorization) or (ii) by the
Trustees by written notice to the Shareholders, provided that at
least three-fourths of the total number of Trustees then in office
and at least three-fourths of the total number of Continuing
Trustees then in office have approved such action. Upon
termination of the Trust, after paying or otherwise providing for
all charges, taxes, expenses and liabilities, whether due or
accrued or anticipated, of the Trust 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 property, or any
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, except to the
extent otherwise required or permitted by the preferences and
special or relative rights or privileges of any series or classes
of Shares.
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 three-fourths of the Shares entitled to vote;
provided, however, that if such merger, consolidation, sale,
lease, exchange, liquidation or dissolution is recommended by at
least three-fourths of the total number of Trustees then in office
and by at least three-fourths of the total number of Continuing
Trustees then in office, a Majority Shareholder Vote shall be
sufficient authorization. Nothing contained herein shall be
construed as requiring approval of the Shareholders for any sale
of assets in the ordinary course of business of the Trust. The
provisions of this Section shall be subject to the voting powers
of one or more series or classes of Shares as set forth in this
Declaration of Trust or the Bylaws.
Conversion
Section 6. Subject to the voting powers of one or more series or
classes of Shares as set forth in this Declaration of Trust or the
Bylaws, the Trust 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) of the 1940 Act, respectively, as in
effect on the date of the execution hereof, upon the approval of
such a proposal, together with any necessary amendments to the
Declaration of Trust to permit such a conversion, by the holders
of three-fourths of the Shares entitled to vote; provided,
however, that if such proposal is recommended by at least three-
fourths of the total number of Trustees then in office and by at
least three-fourths of the total number of Continuing Trustees
then in office, such proposal may be adopted by a Majority
Shareholder Vote. Upon the adoption of such proposal and related
amendments by the Trust's Shareholders as provided above, 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,
this Declaration of Trust or the Bylaws or any agreement between
the Trust and any national securities exchange.
Derivative and Class Actions
Section 7. No Shareholder shall bring or maintain any action,
proceeding or claim derivatively or as a class action on behalf of
the Trust or the Shareholders unless approved by the Trustees and,
to the same extent required as to stockholders of a Massachusetts
business corporation, by the Shareholders. A Trustee who is not
an "interested person" of the Trust, as defined in the 1940 Act,
shall not be disqualified from acting on such matter by reason of
such Trustee's service as a director or trustee of one or more
other registered investment companies having the same Manager or
distributor.
Filing and Copies, References, Headings
Section 8. 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 State 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 a part hereof or control
or affect the meaning, construction or effect of this instrument.
This instrument may be executed in any number of counterparts each
of which shall be deemed an original.
Applicable Law
Section 9. This Declaration of Trust is made in The Commonwealth
of Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said
Commonwealth. 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 10. Subject to the voting powers of one or more series or
classes of Shares, as set forth in this Declaration of Trust or
the Bylaws, this Declaration of Trust may be amended at any time
by an instrument in writing signed by a majority of the then
Trustees (a) 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 2(k) of
Article I, Section 1 of Article IV, Section 4, 5 or 6 of this
Article IX or this sentence shall require the vote of Shareholders
holding three-fourths of the Shares entitled to vote if such
amendment has not been recommended by at least three-fourths of
the total number of Trustees then in office and by at least three-
fourths of the total number of Continuing Trustees then in office,
or (b) without Shareholder approval as may be necessary or
desirable in order to authorize one or more series or classes of
Shares as provided in Section 1 of Article III. Amendments having
the purpose of changing the name of the Trust or of supplying any
omission, curing any ambiguity or curing, correcting or
supplementing any defective or inconsistent provision contained
herein shall not require authorization by Shareholder vote.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and
seal in the City of Boston, Massachusetts for himself and his
assigns, as of the day and year first above written.
XXXXXXX X. XXXXX
Xxxxxxx X. Xxxxx
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Boston, August 13, 1998
Then personally appeared the above-named Xxxxxxx X. Xxxxx and
acknowledged the foregoing instrument to be his free act and deed,
before me,
Notary Public
My Commission Expires:
Trustee Address
c/o Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Trust Address
0 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
