EXHIBIT a.2
AEW REAL ESTATE INCOME FUND
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
October 10, 2002
AEW REAL ESTATE INCOME FUND
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AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
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AGREEMENT AND DECLARATION OF TRUST made this 10th day of October, 2002,
by the Trustees hereunder, and by the holders of shares of beneficial interest
to be issued hereunder as hereinafter provided, amending and restating the
Agreement and Declaration of Trust made at Boston, Massachusetts the 18th day of
September, 2002, for purposes of eliminating references to the sole initial
trustee, adding additional trustees as signatories hereto and making certain
other changes hereto.
WHEREAS, pursuant to Article IX, Section 7 of the Agreement and
Declaration of Trust, the Trustees of the Trust and the holders of all of the
shares of beneficial interest of the Trust have determined that the Agreement
and Declaration of Trust should be amended and restated in its entirety as
hereinafter set forth.
NOW, THEREFORE, this Amended and Restated Agreement and Declaration of
Trust shall take effect as of the time of execution by the required number of
Trustees of the Trust and shall be filed with the Secretary of The Commonwealth
of Massachusetts and the Clerk of the City of Boston.
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 business trust in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets which they may from time to time acquire in
any manner as Trustee hereunder IN TRUST to manage and dispose of the same upon
the following terms and conditions for the pro rata benefit of the holders from
time to time of Shares in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
Name
Section 1. This Trust shall be known as "AEW Real Estate Income Fund "
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 Declaration, as amended or restated 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 class or series of
Shares is authorized by the Trustees, the equal proportionate
transferable units into which each class or series 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 or regulations thereunder and applicable orders of the
Securities and Exchange Commission and interpretations of its staff, as
such statute, rules, regulations, orders or interpretations may be
amended from time to time;
(f) The terms "Affiliated Person", "Interested Person", and
"Principal Underwriter" shall have the applicable meanings given them
in the 1940 Act;
(g) "Declaration" 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 or
restated from time to time;
(i) The term "class," when used in connection with Shares,
refers to the division of Shares into two or more classes as provided
in Article III, Section 1 hereof;
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the term "Class," when used in connection with the Trustees, refers to
the division of the Board of Trustees into two or more Classes as
provided in Article IV, Section 1 hereof;
(j) The term "series" or "series of Shares" refers to the
division of Shares representing any class into two or more series as
provided in Article III, Section 1 hereof; and
(k) The term "Continuing Trustee" shall have the meaning given
to such term in Article IV, Section 2 hereof.
ARTICLE II
PURPOSE
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 and to carry on such other business as the Trustees may from
time to time determine pursuant to their authority under this Declaration.
ARTICLE III
SHARES
Division of Beneficial Interest
Section 1. The Trustees may, without Shareholder approval, authorize
one or more classes of Shares (which classes may be divided into two or more
series), Shares of each such class or series having such par value and such
preferences, voting powers, terms of redemption, if any, and special or relative
rights or privileges (including conversion rights, if any) as the Trustees may
determine. Subject to applicable law, the Trustees may, without Shareholder
approval, authorize the Trust to issue subscription or other rights representing
interests in Shares to existing Shareholders or other persons subject to such
terms and conditions as the Trustees may determine. The number of Shares of each
class or series authorized shall be unlimited, except as the Bylaws may
otherwise provide, and the Shares so authorized may be represented in part by
fractional shares. The Trustees may from time to time (a) divide or combine the
Shares of any class or series into a greater or lesser number without thereby
changing the proportionate beneficial interest in the series or class in the
assets belonging to that series or attributable to that class or in any way
affecting the rights of shares of any other series or class or (b) take such
other action with respect to the Shares as the Trustees may deem necessary or
desirable.
Ownership of Shares
Section 2. The ownership of Shares shall be recorded on the books of
the Trust or a transfer or similar agent. Except as provided in the Bylaws or as
the Trustees may otherwise determine from time to time, no certificates
certifying the ownership of Shares shall be issued. The Trustees may make such
rules as they consider appropriate for the issuance of Share
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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 class and series
and as to the number of Shares of each class and series held from time to time
by each Shareholder.
Investments in the Trust
Section 3. The Trustees shall accept investments in the Trust from such
persons and on such terms and, subject to any requirements of law, for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as the Trustees or the Bylaws from time to time authorize.
The Trustees may in their sole discretion impose a sales charge or other fee
upon investments in the Trust or series or any classes thereof and issue
fractional shares.
No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other right to
receive, purchase or subscribe for any additional Shares or other securities
issued by the Trust.
Derivative Claims
Section 5. No Shareholder or group of Shareholders shall have the right
to bring or maintain any court action, proceeding or claim on behalf of the
Trust or any series or class of Shares without first making demand on the
Trustees requesting the Trustees to bring or maintain such action, proceeding or
claim. Such demand shall not be excused under any circumstances, including
claims of alleged interest on the part of the Trustees, unless the plaintiff
makes a specific showing that irreparable nonmonetary injury to the Trust or
series or class of Shares would otherwise result. Such demand shall be mailed to
the Secretary of the Trust at the Trust's principal office and shall set forth
with particularity the nature of the proposed court action, proceeding or claim
and the essential facts relied upon by the Shareholder to support the
allegations made in the demand. The Trustees shall consider such demand within
45 days of its receipt by the Trust. In their sole discretion, the Trustees may
submit the matter to a vote of Shareholders of the Trust or a series or class of
Shares, as appropriate. Any decision by the Trustees to bring, maintain or
settle (or not to bring, maintain or settle) such court action, proceeding or
claim, or to submit the matter to a vote of Shareholders, shall be binding upon
the Shareholders. Any decision by the Trustees to bring or maintain a court
action, proceeding or suit on behalf of the Trust or a series or class of Shares
shall be subject to the right of the Shareholders under Article V hereof to vote
on whether or not such court action, proceeding or suit should or should not be
brought or maintained.
Direct Claims
Section 6. No Shareholder or group of Shareholders shall have the right
to bring or maintain a direct action or claim for monetary damages against the
Trust or the Trustees predicated upon an express or implied right of action
under this Declaration or the 1940 Act (excepting rights of action expressly
permitted under section 36(b) of the 1940 Act), nor shall
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any single Shareholder, who is similarly situated to one or more other
Shareholders with respect to the alleged injury, have the right to bring such an
action, unless such Shareholder or group of Shareholders has obtained
authorization from the Trustees to bring the action. The requirement of
authorization shall not be excused under any circumstances, including claims of
alleged interest on the part of the Trustees. A request for authorization shall
be mailed to the Secretary of the Trust at the Trust's principal office and
shall set forth with particularity the nature of the proposed court action,
proceeding or claim and the essential facts relied upon by the group of
Shareholders or Shareholder to support the allegations made in the request. The
Trustees shall consider such request within 45 days of its receipt by the Trust.
In their sole discretion, the Trustees may submit the matter to a vote of
Shareholders of the Trust or series or class of Shares, as appropriate. Any
decision by the Trustees to settle or to authorize (or not to settle or not to
authorize) such court action, proceeding or claim, or to submit the matter to a
vote of Shareholders, shall be binding upon the Shareholder or group of
Shareholders seeking authorization. Any decision by the Trustees to authorize a
court action, proceeding or suit by a Shareholder or group of Shareholders shall
be subject to the right of the Shareholders under Article V hereof to vote on
whether or not such court action, proceeding or suit should or should not be
brought or maintained.
Status of Shares and Limitation of Personal Liability
Section 7. Shares shall be deemed to be personal property giving only
the rights provided in this Declaration 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 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
Number and Classes of Trustees and Term of Office
Section 1. Subject to the voting powers of one or more classes or
series of Shares as set forth in the Bylaws, the number of Trustees shall be
such number as shall be fixed from time to time by a written instrument signed
by a majority of the Trustees; provided, however, that the number of Trustees
shall in no event be less than three (3) from and after the date when Shares
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are first sold pursuant to an initial registered public offering. 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, retires, resigns or is disqualified or removed from office,
shall be Xxxx Xxxxxxxxx and such other persons as the Trustee or Trustees then
in office shall, prior to any sale of Shares pursuant to an initial registered
public offering, elect, subject in each case to the Classes of Trustees and
terms created pursuant to this Article IV.
An initial annual meeting of Shareholders or special meeting in lieu
thereof shall be called to be held not more than sixteen months after Shares are
first sold pursuant to an initial registered public offering; subsequent annual
meetings of Shareholders or special meetings in lieu thereof (each an "annual
meeting") shall be held as specified in the Bylaws. Prior to any sale of Shares
pursuant to an initial registered public offering, the Trustees shall by
resolution classify themselves, with respect to the time for which they
severally hold office, into the following three classes: Class I, whose term
expires at the initial annual meeting; Class II, whose term expires at the next
succeeding annual meeting after the initial annual meeting (the "second annual
meeting"); and Class III, whose term expires at the next succeeding annual
meeting after the second annual meeting. 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. At each annual meeting beginning with the initial
annual meeting, the successors of the Class of Trustees whose term expires at
that meeting shall be elected to hold office for a term expiring at the annual
meeting held in the third year following the year of their election, with each
Trustee holding office until the expiration of the term of the relevant Class
and the election and qualification of his or her successor, or until he or she
sooner dies, resigns, retires, or is disqualified or removed from office. The
Trustees shall assign by resolution from their number Trustees to each of the
three Classes. The Trustees may also determine by resolution those Trustees in
each Class that shall be elected by Shareholders of a particular class of Shares
(e.g., by a class of preferred Shares issued by the Trust) prior to the initial
public offering of such class of Shares.
If the number of Trustees is changed, any increase or decrease shall be
apportioned among the Classes, as of the annual meeting of Shareholders next
succeeding any such change, so as to maintain a number of Trustees in each Class
as nearly equal as possible, with the result that, to the extent a Trustee is
assigned to a new Class, his or her term as Trustee shall coincide with that of
his or her newly assigned Class. No reduction in the number of Trustees shall
have the effect of removing any Trustee from office prior to the expiration of
his or her term unless the Trustee is specifically removed pursuant to Section 3
of this Article at the time of the decrease. Except as provided in this Section
1 or Section 3 of this Article, after the initial registered public offering of
the Shares, Trustees shall be elected only at an annual meeting of Shareholders.
Continuing Trustee; Definition
Section 2. For purposes of this Declaration and the Bylaws, the term
"Continuing Trustee" shall mean any member of the Board of Trustees who either
(a) has been a member of the Board of Trustees for a period of at least
thirty-six months (or since immediately after the
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initial registered public offering of the Trust's Shares, if less than
thirty-six months) or (b) was nominated to serve as a member of the Board of
Trustees by a majority of the Continuing Trustees then members of the Board of
Trustees.
Vacancies; Resignation; Removal
Section 3. From and after the date when Shares are first sold pursuant to
an initial registered public offering and subject to any voting powers of one or
more classes or series of Shares as set forth in this Declaration or in the
Bylaws or by resolution of the Board of Trustees, any vacancies occurring in the
Board of Trustees may be filled by the Trustees as set forth below. Prior to the
date when Shares are first sold pursuant to an initial registered public
offering, subject to any limitations imposed by the 1940 Act or other applicable
law, any vacancies occurring in the Board of Trustees may be filled by the
Trustees without any action by or meeting of Shareholders.
From and after the date when Shares are first sold pursuant to an initial
registered public offering and subject to any voting powers of one or more
classes or series of Shares as set forth in this Declaration or in the Bylaws or
by resolution of the Board of Trustees, and subject to any limitations imposed
by the 1940 Act or other applicable law, any vacancy occurring in the Board of
Trustees that results from an increase in the number of Trustees may be filled
by a majority of the entire Board of Trustees, and any other vacancy occurring
in the Board of Trustees may be filled by a majority of the Trustees then in
office, whether or not sufficient to constitute a quorum, or by a sole remaining
Trustee; provided, however, 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 elected by that class or series 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. A Trustee elected by the Board of
Trustees (or a group of Trustees or a single Trustee, as the case may be, as
provided herein) to fill any vacancy occurring in the Board of Trustees shall
serve until the next annual meeting of Shareholders and until his successor
shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. At any annual
meeting of Shareholders, any Trustee elected to fill any vacancy occurring in
the Board of Trustees that has arisen since the preceding annual meeting of
Shareholders (whether or not any such vacancy has been filled by election of a
new Trustee by the Board of Trustees (or a group of Trustees or a single
Trustee, as the case may be, as provided herein)) shall hold office for a term
which coincides with the remaining term of the Class of Trustee to which such
office was previously assigned, if such vacancy arose other than by an increase
in the number of Trustees, and until his successor shall be elected and shall
qualify. In the event such vacancy arose due to an increase in the number of
Trustees, any Trustee so elected to fill such vacancy at an annual meeting shall
hold office for a term which coincides with that of the Class of Trustee to
which such office has been apportioned as heretofore provided, and until his
successor shall be elected and shall qualify or until he or she sooner dies,
resigns, retires, or is disqualified or removed from office.
Any Trustee may resign his trust or retire as a Trustee (without need for
prior or subsequent accounting except in the event of removal) by an instrument
in writing signed by him
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and delivered to the Chairman, President or Secretary of the Trust (or, if prior
to any sale of Shares pursuant to an initial registered public offering,
delivered to any remaining Trustee), and such resignation or retirement shall be
effective upon such delivery, or at a later date according to the terms of the
instrument. Subject to any voting powers of one or more classes or series of
Shares as set forth in this Declaration or in the Bylaws, any Trustee may be
removed from office only for "Cause" (as hereinafter defined) and only (i) by
action of at least seventy-five percent (75%) of the outstanding Shares of the
classes or series of Shares entitled to vote for the election of such Trustee,
at a meeting called for the purpose, or (ii) by written instrument, signed by at
least seventy-five percent (75%) of the remaining Trustees, specifying the date
when such removal shall become effective. "Cause" for these purposes shall
require willful misconduct, dishonesty or fraud on the part of the Trustee in
the conduct of his or her office or such Trustee being convicted of a felony.
Effect of Death, Resignation, etc. of a Trustee
Section 4. The death, declination, resignation, retirement, removal,
disqualification 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.
Powers
Section 5. Subject to the provisions of this Declaration, 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
providing for the conduct of the business of the Trust and such other matters
they may consider to be necessary or appropriate and may amend and repeal them
to the extent and as provided in Article IX, Section 7(c) of this Declaration.
Subject to the voting power of one or more classes or series of Shares as set
forth in this Declaration or in the Bylaws or by resolution of the Board of
Trustees, the Trustees may fill vacancies in or add to their number, including
vacancies resulting from increases in 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 one 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 appoint an advisory board, the members of which shall not be Trustees and
need not be Shareholders; 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; they may retain a transfer agent or a shareholder
servicing agent, or both, and provide for the distribution of Shares by the
Trust, through one or more principal underwriters or otherwise; they may set
record dates for the determination of Shareholders with respect to various
matters; and they may 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:
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(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;
(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 depository or a nominee or nominees or otherwise;
(f) To the extent necessary or appropriate to give effect to the
preferences, special or relative rights or privileges of any classes or
series of Shares, to allocate assets, liabilities, income and expenses of
the Trust to a particular class or classes or series of Shares or to
apportion the same among two or more classes or series;
(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 with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit
any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority
with relation to any security (whether or not so deposited or transferred)
as the Trustees shall deem proper, and to agree to pay, and to pay, such
portion of the expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust on any matter in controversy, including but not limited
to claims for taxes;
(j) To enter into joint ventures, general or limited partnerships,
limited liability companies, and any other combinations or associations;
(k) To borrow funds;
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(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 of 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,
sub-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, sub-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;
(o) To purchase, redeem or otherwise acquire Shares; and
(p) To engage in any other lawful act or activity in which business
corporations organized under the laws of The Commonwealth of Massachusetts
may engage.
The foregoing enumeration of the powers and authority of the Trustees shall
be read as broadly and liberally as possible, it being the intent of the
foregoing to in no way limit the Trustees' powers and authority.
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 consents of a majority of the Trustees then in
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office (or such greater number as may be required by this Declaration, the
Bylaws or applicable law).
Payment of Expenses by the Trust
Section 6. The Trustees are authorized to pay, or to cause to be paid out
of the principal or income of the Trust, or partly out of principal and partly
out of income, as they deem fair, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust, or in connection
with the management thereof, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of the Trust's
officers, employees, investment adviser, sub-adviser or manager, principal
underwriter, auditor, counsel, administrator or sub-administrator, 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 7. Title to all of the assets of the Trust and each series and
class of Shares shall at all times be considered as vested in the Trustees.
Advisory, Management and Distribution
Section 8. 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 provide for one or more
sub-advisers or other agents who shall perform all or part of the obligations of
the Manager under such contract and 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, sub-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, sub-advisory or management
contract, principal underwriter's or distributor's contract,
administrative services contract,
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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, sub-advisory or
management contract, 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, sub-advisory or management contract, or principal
underwriter's or distributor's contract, administrative
services contract, or transfer, shareholder servicing or other
agency contract with one or more other corporations, trusts,
associations or other organizations, or of or for any parent
or affiliate of any organization, 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.
Address of the Trustees and Agent for Service of Process
Section 9. The principal address of the Trustees on the date hereof is
c/o the Trust, c/o CDC IXIS Asset Management Services, Inc., 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. For the avoidance of doubt, each Trustee
may change his or her principal address at any time in his or her sole
discretion. The name and address of the resident agent of the Trust on the date
hereof in The Commonwealth of Massachusetts is CDC IXIS Asset Management
Services, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, attention
General Counsel. For the avoidance of doubt, the Trustees may without
shareholder approval appoint a new or successor resident agent of the Trust at
any time in their sole discretion.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
General
Section 1. Except as otherwise provided in this Article V or elsewhere
in this Declaration, Shareholders shall have such power to vote as is provided
for in, and shall and may hold meetings and take actions pursuant to, the
provisions of the Bylaws.
Voting Powers as to Certain Transactions
Section 2.
(a) Except as otherwise provided in paragraph (b) of this
Section 2, the affirmative vote or consent of at least seventy-five
percent (75%) of the Trustees of the
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Trust and at least seventy-five percent (75%) of the Shares outstanding
and entitled to vote thereon shall be necessary to authorize any of the
following actions:
(i) the merger or consolidation or share exchange of the
Trust or any series or class of Shares with or into any other
person or company (including, without limitation, a partnership,
corporation, joint venture, business trust, common law trust or
any other business organization) or of any such person or
company with or into the Trust or any series or class of Shares;
(ii) the issuance or transfer by the Trust or any series
or class of Shares in one or more series of transactions in any
twelve-month period of any securities issued by the Trust or
such series or class to any other person or entity for cash,
securities or other property (or combination thereof), having an
aggregate fair market value of $1,000,000 or more, excluding (i)
sales of any securities of the Trust or a series or class in
connection with a public offering thereof, (ii) issuances of
securities of the Trust or a series or class pursuant to a
dividend reinvestment plan adopted by the Trustees and (iii)
issuances of securities of the Trust or a series or class upon
the exercise of any stock subscription rights distributed by the
Trust or a series or class, and (iv) issuances of securities of
the Trust or a series or class to all Shareholders of the Trust
or such series or class on a pro rata basis;
(iii) a sale, lease, exchange, mortgage, pledge, transfer
or other disposition by the Trust or any series or class of
Shares (in one or a series of transactions in any twelve-month
period) to or with any person of any assets of the Trust or such
series or class having an aggregate fair market value of
$1,000,000 or more, except for transactions in securities
effected by the Trust or a series or class in the ordinary
course of business;
(iv) any Shareholder proposal as to specific investment
decisions made or to be made with respect to the assets of the
Trust or a series or class of Shares.
(b) Notwithstanding anything to the contrary in paragraph (a)
of this Section 2, so long as each action is approved by both a
majority of the entire Board of Trustees and seventy-five percent (75%)
of the Continuing Trustees, and so long as all other conditions and
requirements, if any, provided for in the Bylaws and applicable law
have been satisfied, then no Shareholder vote or consent shall be
necessary or required to approve any of the actions listed in
paragraphs (a)(i), (a)(ii), (a)(iii) or (a)(iv) of this Section 2,
except to the extent such Shareholder vote or consent is required by
the 1940 Act or other applicable law.
Conversion to Open-End Company
Section 3. Notwithstanding any other provisions in this Declaration or
the Bylaws, the conversion of the Trust or any series of Shares from a
"closed-end company" to an "open-end company", as those terms are defined in
Sections 5(a)(2) and 5(a)(1), respectively, of the 1940
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Act (as in effect on the date of this Declaration), together with any necessary
amendments to this Declaration to permit such a conversion, shall require the
affirmative vote or consent of at least seventy-five percent (75%) of each class
of Shares outstanding and entitled to vote on the matter, unless a majority of
the Trustees and seventy-five percent (75%) of the Continuing Trustees entitled
to vote on the matter approve such conversion and related actions. In the event
of such approval by the Trustees and the Continuing Trustees as referred to in
the preceding sentence, the 1940 Act shall govern whether and to what extent a
vote or consent of Shares shall be required to approve such conversion and
related actions. Any affirmative vote or consent required under this Section 3
shall be in addition to the vote or consent of the Shareholders otherwise
required by law or by any agreement between the Trust and any national
securities exchange.
ARTICLE VI
DISTRIBUTIONS AND DETERMINATION OF NET ASSET VALUE
Distributions
Section 1. (a) The Trustees may each year, or more frequently if they
so desire, but need not, distribute to the Shareholders of any or all classes or
series of Shares such income and gains, accrued or realized, as the Trustees may
determine, after providing for actual and accrued expenses and liabilities
(including such reserves as the Trustees may establish) determined in accordance
with good accounting practices and subject to the preferences, special or
relative rights or privileges of the various classes or series of Shares. The
Trustees shall have full discretion to determine which items shall be treated as
income and which items as capital and their determination shall be binding upon
the Shareholders. Distributions of income for each year or other period, if any
be made, may be made in one or more payments, which shall be in Shares, in cash
or otherwise and on a date or dates and as of a record date or dates determined
by the Trustees. At any time and from time to time in their discretion, the
Trustees may distribute to the Shareholders as of a record date or dates
determined by the Trustees, in Shares, in cash or otherwise, all or part of any
gains realized on the sale or disposition of property or otherwise, or all or
part of any other principal of the Trust. Each distribution pursuant to this
Section 1 to the Shareholders of a particular class or series shall be made
ratably according to the number of Shares of such class or series held by the
several Shareholders on the applicable record date thereof, provided that no
distribution need be made on Shares purchased pursuant to orders received, or
for which payment is made, after such time or times as the Trustees may
determine. Any such distribution paid in Shares will be paid at the net asset
value thereof as determined in accordance with Section 2 of this Article VI, or
at such other value as may be specified by the Bylaws or as the Trustees may
from time to time determine, subject to applicable laws and regulations then in
effect.
(b) Any other provisions of this Declaration or the Bylaws
notwithstanding, the Trustees may not distribute to the Shareholders (in one or
a series of distributions) during any twelve-month period any property (in cash,
Shares or otherwise) with an aggregate fair market value in excess of 125% of
the income and gains (accrued or realized) of the Trust during such twelve-
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month period (the "Distribution Limit"); provided, however, a distribution in
excess of the Distribution Limit may be made if such distribution shall have
been approved by the vote or consent of a majority of the Trustees and
seventy-five percent (75%) of the Continuing Trustees.
Determination of Net Asset Value
Section 2. The net asset value per share of each class and each series
of Shares of the Trust shall be determined in accordance with the 1940 Act and
any related procedures adopted by the Trustees from time to time. Determinations
made under and pursuant to this Section 2 in good faith and in accordance with
the provisions of the 1940 Act shall be binding on all parties concerned.
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, underwriting,
brokerage 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, adviser,
sub-adviser, manager, administrator 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, Share or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the Trust
shall be 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.
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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 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 a decision on the merits
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, that (a) such Covered Person
shall provide security for his or her undertaking, (b) the Trust shall be
insured against losses arising by reason of such Covered Person's failure to
fulfill his or her undertaking, or (c) a majority of the Trustees who are
disinterested persons and who are not Interested Persons of the Trust (provided
that a majority of such Trustees then in office act on the matter), or
independent legal counsel in a written opinion shall determine, based on a
review of readily available facts (but not a full trial-type inquiry), that
there is reason to believe such Covered Person ultimately will be entitled to
indemnification.
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 in a
decision on the merits 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 such Covered Person's 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 such Covered Person's office,
indemnification shall be provided if (x) approved as in the best interest of the
Trust, after notice that it involves such indemnification,
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by at least a majority of the Trustees who are disinterested persons and are not
Interested Persons of the Trust (provided that a majority of such Trustees then
in office act on the matter), upon a determination, based upon a review of
readily available facts (but not a full trial-type inquiry) that such Covered
Person acted in good faith in the reasonable belief that such Covered Person's
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 such Covered
Person's office, or (y) there has been obtained an opinion in writing of
independent legal counsel, based upon a review of readily available facts (but
not a full trial-type inquiry), to the effect that such Covered Person appears
to have acted in good faith in the reasonable belief that such Covered Person's
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 such Covered Person 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 2 shall not prevent the recovery from any Covered Person of any amount
paid to such Covered Person in accordance with this Section 2 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.
Rebuttable Presumption
Section 3. For purposes of the determination or opinion referred to in
clause (c) of Section 1 of this Article VIII or clauses (x) or (y) of Section 2
of this Article VIII, the majority of the Trustees who are disinterested persons
and who are not Interested Persons of the Trust acting on the matter or
independent legal counsel, as the case may be, shall be entitled to rely upon a
rebuttable presumption that the Covered Person has not engaged in 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 4. The right of indemnification hereby provided shall not be
exclusive of or affect any other rights to which any 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 person"
is a person against whom none of the actions, suits or other proceedings in
question or another action, suit or other proceeding on the same or similar
grounds is then or has been pending. Nothing contained in this Article VIII
shall affect any rights to indemnification to which personnel of the Trust,
other than Trustees and officers, and other persons may be entitled by contract
or otherwise under law, nor the power of the Trust to purchase and maintain
liability insurance on behalf of such person; provided, however, that the Trust
shall not purchase or maintain any such liability insurance in contravention of
the 1940 Act or other applicable law. Each person who is or becomes a Covered
Person shall be deemed
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to have served or to have continued to serve in such capacity in reliance on the
indemnification, advancement of expenses and other provisions provided for in
this Article VIII.
Shareholders
Section 5. 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 or a particular series or class of Shares shall look
only to the assets of the Trust or the assets of that particular series or class
of Shares for payment under such credit, contract or claim; and neither the
Shareholders nor the Trustees, nor any of the Trust's officers, employees or
agents, whether past, present or future, shall be personally liable therefor.
Nothing in this Declaration 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 is on file with the Secretary of The Commonwealth of
Massachusetts and shall recite that the same was executed or made by or on
behalf of the Trust or by them as Trustee or Trustees or as officer or officers
and not individually and that the obligations of such instrument are not binding
upon any of them or the Shareholders individually but are binding only upon the
assets and property of the Trust, and may contain such further recital as he or
she or they may deem appropriate, but the omission thereof shall not operate to
bind any Trustee or Trustees or officer or officers or Shareholder or
Shareholders individually.
Trustees and Officers 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 or officer 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 or officer, and for nothing else, and shall not be liable for errors of
judgment or mistakes of fact or law. The Trustees or officers may take advice of
counsel or other experts with respect to the meaning and operation of this
Declaration, and shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such
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advice. The Trustees and officers 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
classes or series of Shares as set forth in the Bylaws, the Trust may be
terminated at any time (i) by vote or consent of Shareholders holding at least
seventy-five percent (75%) of the Shares entitled to vote or (ii) by vote or
consent of majority of the entire Board of Trustees and seventy-five percent
(75%) of the Continuing Trustees upon written notice to the Shareholders. Except
as otherwise provided in the Bylaws, any series or class of Shares may be
terminated at any time (x) by vote or consent of Shareholders holding at least
seventy-five percent (75%) of the Shares of such series of class entitled to
vote or (y) by vote or consent of majority of the entire Board of Trustees and
seventy-five percent (75%) of the Continuing Trustees upon written notice to the
Shareholders of such series or class. For the avoidance of any doubt and
notwithstanding anything to the contrary in this Declaration, Shareholders shall
have no separate right to vote with respect to the termination of the Trust or a
series of class of Shares if the Trustees (including the Continuing Trustees)
exercise their right to terminate the Trust or such series or class pursuant to
clauses (ii) and (y) of this Section 4.
Upon termination of the Trust or of any one or more series or classes
of Shares, after paying or otherwise providing for all charges, taxes, expenses
and liabilities, whether due or accrued or anticipated, of the Trust or of the
particular series or class, 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 of the series or class(es) involved, ratably according to the
number of Shares of such series or class 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 classes or
series of Shares. For these purposes, "ratably" shall refer to the proceeds
themselves and shall not prevent different Shareholders from receiving different
forms of property.
Filing of Copies, References, Headings
Section 5. The original or a copy of this instrument and of each
amendment hereto shall be kept at the office of the Trust, where it may be
inspected by any Shareholder. A copy of this instrument and of each amendment
hereto shall be filed by the Trust with the Secretary of The Commonwealth of
Massachusetts and with the Boston City Clerk, as well as any other governmental
office where such filing may from time to time be required. Anyone dealing with
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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 6. This Declaration 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 7. (a) Except to the extent that the Bylaws or applicable law
may require a higher vote or the separate vote of one or more classes or series
of Shares, and except as provided in paragraph (b) of this Section 7, this
Declaration may be amended at any time by an instrument in writing signed by a
majority of the then Trustees (1) when authorized so to do by a vote or consent
of Shareholders holding a majority of the Shares entitled to vote or (2) without
Shareholder approval as may be necessary or desirable in order to authorize one
or more classes or series of Shares as provided for 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.
(b) Except to the extent that the Bylaws or applicable law may require
a higher vote or the separate vote of one or more classes or series of Shares,
no amendment may be made under this Section 7 which shall amend, alter, change
or repeal any of the provisions of Article III, Sections 4, 5, 6 or 7; Article
IV, Sections 1, 2, 3 or 4; each Section of Article V; paragraph (b) of Article
VI, Section 1; Article VII, Section 2; each Section of Article VIII; or this
Article IX, Sections 1, 2, 3, 4, or 7 unless, in each case, the amendment
effecting such amendment, alteration, change or repeal shall be effected by an
instrument in writing signed by a majority of the then Trustees and seventy-five
percent (75%) of the Continuing Trustees and shall receive the affirmative vote
or consent of Shareholders holding a majority of the Shares entitled to vote;
provided, however, that such affirmative vote or consent shall be in addition to
the vote or consent of the Shareholders otherwise required by applicable law or
by the terms of any agreement between the Trust and any national securities
exchange.
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(c) Except to the extent that the Bylaws or applicable law requires a
vote or consent of Shareholders, the Board of Trustees shall have the sole power
and authority to adopt, amend, alter, change or repeal any Bylaw of the Trust,
if the resolution or writing adopting, amending, altering, changing or repealing
any such Bylaw is approved or signed by a majority of the Board of Trustees;
provided, however, that any amendment, alteration, change or repeal of Section
10 of the Bylaws, or any other Section or provision of the Bylaws determined
from time to time to be subject to the supermajority provision contained in this
clause by a majority of the Trustees and seventy-five percent (75%) of the
Continuing Trustees, shall require the approval of a majority of the Board of
Trustees and seventy-five percent (75%) of the Continuing Trustees.
Address of the Trust
Section 8. As of the date hereof, the principal address of the Trust is
c/o CDC IXIS Asset Management Services, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000. The Trustees may change the principal address of the Trust
to any location within or without The Commonwealth of Massachusetts as they
shall determine in their sole discretion.
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IN WITNESS WHEREOF, we have hereunto set our hands for ourselves and
for our successors and assigns as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxxx, Xx. /s/ Xxxx X. Xxxxxx
--------------------------- ------------------------
Xxxxxx X. Xxxxxxx, Xx. Xxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxx /s/ Xxxxxx X. Xxxxx
--------------------------- ------------------------
Xxxxxx X. Xxxx Xxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxx
--------------------------- ------------------------
Xxxxxxx X. Xxxxx Xxxx X. Xxxxx
/s/ Xxxxxxx Xxxxxx /s/ Xxxxx X. Xxxx
--------------------------- ------------------------
Xxxxxxx Xxxxxx Xxxxx X. Xxxx
/s/ Xxxxxxxxx X. Xxxxx
---------------------------
Xxxxxxxxx X. Xxxxx
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