<PAGE>
As filed with the Securities and Exchange Commission on August 22, 1996
File Nos. 2-87509
811-3893
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM N-1A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
POST-EFFECTIVE
AMENDMENT NO. 18
AND
REGISTRATION STATEMENT
UNDER
THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 20
LANDMARK TAX FREE RESERVES
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
6 ST. JAMES AVENUE, BOSTON, MASSACHUSETTS 02116
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: 617-423-1679
PHILIP W. COOLIDGE, 6 ST. JAMES AVENUE, BOSTON, MASSACHUSETTS 02116
(NAME AND ADDRESS OF AGENT FOR SERVICE)
COPY TO:
ROGER P. JOSEPH, BINGHAM, DANA & GOULD LLP, 150 FEDERAL STREET,
BOSTON, MASSACHUSETTS 02110
It is proposed that this filing will become effective on August 22, 1996,
pursuant to paragraph (b) of Rule 485.
Tax Free Reserves Portfolio has executed this Registration Statement.
Pursuant to Rule 24f-2, Registrant has registered an indefinite number of
its Shares of Beneficial Interest (without par value) under the Securities Act
of 1933 and has filed a Rule 24f-2 Notice on October 30, 1995 for Registrant's
fiscal year ended August 31, 1995.
- ---------------------------------------------------------------------------
<PAGE>
LANDMARK TAX FREE RESERVES
REGISTRATION STATEMENT ON FORM N-1A
CROSS REFERENCE SHEET
N-1A
ITEM LOCATION
- ---- ---------
PART A PROSPECTUS
- ------ ----------
Items 1-9 Incorporated by reference to the Registrant's Registration
Statement on Form N-1A (File No. 2-87509) as filed with the
Securities and Exchange Commission on the EDGAR system on or about
December 28, 1995 (Accession Number 950156-95-000890).
STATEMENT OF
ADDITIONAL
PART B INFORMATION
- ------ -------------
Items Incorporated by reference to the Registrant's Registration Statement
10-23 on Form N-1A (File No. 2-87509) as filed with the Securities and
Exchange Commission on the EDGAR system on or about December 28,
1995 (Accession Number 950156-95-000890).
PART C Information required to be included in Part C is set forth under the
- ------ appropriate Item, so numbered, in Part C to this Registration
Statement.
<PAGE>
EXPLANATORY NOTE
This Amendment to the Registrant's Registration Statement on Form N-1A is being
filed solely to place certain Exhibits on the Securities and Exchange
Commission's EDGAR system.
<PAGE>
PART C
Item 24. Financial Statements and Exhibits.
(a) Financial Statements Included in Part A:
Not applicable.
Financial Statements Included in Part B:
Not applicable.
<TABLE>
<CAPTION>
<S> <C> <C>
(b) Exhibits
1(a) Declaration of Trust of the Registrant
1(b) Amendments to Declaration of Trust of the Registrant
2(a) Amended and Restated By-Laws of the Registrant
2(b) Amendments to Amended and Restated By-Laws of the Registrant
* 4 Form of Certificate representing ownership of a share of beneficial interest
in the Registrant
6 Distribution Agreement between the Registrant and The Landmark Funds
Broker-Dealer Services, Inc. ("LFBDS"), as distributor
7 Custodian Contract between the Registrant and State Street Bank and Trust
Company ("State Street"), as custodian
9(a) Amended and Restated Administrative Services Plan of the Registrant
9(b) Administrative Services Agreement between the Registrant and LFBDS, as
administrator
9(c) Sub-Administrative Services Agreement between Citibank, N.A. and LFBDS
9(d)(i) Form of Shareholder Servicing Agreement between the Registrant and Citibank,
N.A., as shareholder servicing agent
9(d)(ii) Form of Shareholder Servicing Agreement between the Registrant and a federal
savings bank, as shareholder servicing agent
9(d)(iii) Form of Shareholder Servicing Agreement between the Registrant and LFBDS, as
shareholder servicing agent
9(e) Transfer Agency and Servicing Agreement between the Registrant and State
Street, as transfer agent
9(f) Amended and Restated Exchange Privilege Agreement between the Registrant,
certain other investment companies and LFBDS, as distributor
10 Opinion and Consent of Counsel
** 11 Consent of Deloitte & Touche LLP, independent auditors of the Registrant
15 Amended and Restated Distribution Plan of the Registrant
25(a) Powers of Attorney for the Registrant
25(b) Powers of Attorney for Tax Free Reserves Portfolio
<FN>
- -----------------
* Information defining the rights of shareholders is contained in the Registrant's Declaration of Trust, as
amended, filed herewith as Exhibits No. 1(a) and 1(b).
** Incorporated herein by reference to Post-Effective Amendment No. 17 to the Registrant's Registration
Statement on Form N-1A (File No. 2-87509) as filed with the Securities and Exchange Commission on December
28, 1995.
</TABLE>
<PAGE>
Item 25. Persons Controlled by or under Common Control with Registrant.
Not applicable.
Item 26. Number of Holders of Securities.
<TABLE>
<CAPTION>
Title of Class Number of Record Holders
-------------- ------------------------
As of August 21, 1996
<S> <C>
Shares of Beneficial Interest
(without par value) 6
</TABLE>
Item 27. Indemnification.
Reference is hereby made to (a) Article V of the Registrant's
Declaration of Trust, filed herein as an Exhibit to the Registrant's
Registration Statement on Form N-1A; (b) Section 4 of the Distribution Agreement
between the Registrant and The Landmark Funds Broker-Dealer Services, Inc.,
filed herein as an Exhibit to the Registrant's Registration Statement on Form
N-1A; and (c) the undertaking of the Registrant regarding indemnification set
forth in its Registration Statement on Form N-1A.
The Trustees and officers of the Registrant and the personnel of the
Registrant's administrator are insured under an errors and omissions liability
insurance policy. The Registrant and its officers are also insured under the
fidelity bond required by Rule 17g-1 under the Investment Company Act of 1940.
Item 28. Business and Other Connections of Investment Adviser.
Citibank, N.A. ("Citibank") is a commercial bank offering a wide range
of banking and investment services to customers across the United States and
around the world. Citibank is a wholly-owned subsidiary of Citicorp, a
registered bank holding company. Citibank also serves as investment adviser to
the following registered investment companies (or series thereof): The Premium
Portfolios (Balanced Portfolio, Equity Portfolio, Government Income Portfolio,
International Equity Portfolio, Emerging Asian Markets Equity Portfolio and
Small Cap Equity Portfolio), Cash Reserves Portfolio, U.S. Treasury Reserves
Portfolio, Landmark Multi-State Tax Free Funds (Landmark New York Tax Free
Reserves, Landmark Connecticut Tax Free Reserves and Landmark California Tax
Free Reserves), Landmark Fixed Income Funds (Landmark Intermediate Income Fund),
Landmark Tax Free Income Funds (Landmark New York Tax Free Income Fund and
Landmark National Tax Free Income Fund), Asset Allocation Portfolios (Asset
Allocation Portfolio 200, Asset Allocation Portfolio 300, Asset Allocation
Portfolio 400 and Asset Allocation Portfolio 500) and Landmark VIP Funds
(Landmark VIP U.S. Government Fund, Landmark VIP Balanced Fund, Landmark VIP
Equity Fund and Landmark VIP International Equity Fund). As of December 31,
1995, Citibank and its affiliates managed assets in excess of $83 billion
worldwide. The principal place of business of Citibank is located at 399 Park
Avenue, New York, New York 10043.
The Chairman of the Board and a Director of Citibank is John S. Reed. The
following are Vice Chairmen of the Board and Directors of Citibank: Paul J.
Collins, William R. Rhodes and H. Onno Ruding. Other Directors of Citibank are
D. Wayne Calloway, Chairman and Chief Executive Officer, PepsiCo, Inc.,
Purchase, New York; Colby H. Chandler, Former Chairman and Chief Executive
Officer, Eastman Kodak Company; Pei-yuan Chia, Director, Baxter International,
Inc.; Kenneth T. Derr, Chairman and Chief Executive Officer, Chevron
Corporation; H.J. Haynes, Senior Counselor, Bechtel Group, Inc., San Francisco,
California; Rozanne L. Ridgway, President, The Atlantic Council of the United
States; Robert B. Shapiro, President and Chief Operating Officer, Monsanto
Company; Frank A. Shrontz, Chairman and Chief Executive Officer, Boeing Company,
Seattle, Washington; Mario Henrique Simonsen, Vice Chairman, Brazilian Institute
of Economics, The Getulio Vargas Foundation; Roger B. Smith, Former Chairman and
Chief Executive Officer, General Motors Corporation; Franklin A. Thomas,
President, The Ford Foundation, New York, New York; and Edgar S. Woolard, Jr.,
Chairman and Chief Executive Officer, E.I. DuPont De Nemours & Company.
Each of the individuals named above is also a Director of Citicorp. In
addition, the following persons have the affiliations indicated:
<TABLE>
<CAPTION>
<S> <C>
D. Wayne Calloway Director, Exxon Corporation
Director, General Electric Company
Director, PepsiCo., Inc.
Colby H. Chandler Director, Digital Equipment Corporation
Director, Ford Motor Company
Director, J.C. Penney Company, Inc.
Pei-yuan Chia Director, Baxter International, Inc.
Paul J. Collins Director, Kimberly-Clark Corporation
Kenneth T. Derr Director, American Telephone and Telegraph, Co.
Director, Chevron Corporation
Director, Potlatch Corporation
H.J. Haynes Director, Bechtel Group, Inc.
Director, Boeing Company
Director, Fremont Group, Inc.
Director, Hewlett-Packard Company
Director, Paccar Inc.
Director, Saudi Arabian Oil Company
John S. Reed Director, Monsanto Company
Director, Philip Morris Companies, Incorporated
Stockholder, Tampa Tank & Welding, Inc.
William R. Rhodes Director, Private Export Funding Corporation
Rozanne L. Ridgway Director, 3M
Director, Bell Atlantic Corporation
Director, Boeing Company
Director, Emerson Electric Company
Member-International Advisory Board,
New Perspective Fund, Inc.
Director, RJR Nabisco, Inc.
Director, Sara Lee Corporation
Director, Union Carbide Corporation
H. Onno Ruding Member, Board of Supervisory Directors,
Amsterdam Trustee's Kantoor
Board Member, Corning, Incorporated
Advisor, Intercena (C&A) (Netherlands)
Member, Board of Supervisory Directors,
Pechiney Nederland N.V.
Member, Board of Advisers, Robeco N.V.
Advisory Director, Unilever N.V.
Advisory Director, Unilever PLC
Robert B. Shapiro Director, G.D. Searle & Co.
Director, Silicon Graphics
Director, Monsanto Company
Director, The Nutrasweet Company
Frank A. Shrontz Director, 3M
Director, Baseball of Seattle, Inc.
Director, Boeing Company
Director, Boise Cascade Corp.
Roger B. Smith Director, International Paper Company
Director, Johnson & Johnson
Director, Pepsico, Inc.
Franklin A. Thomas Director, Aluminum Company of America
Director, American Telephone and Telegraph, Co.
Director, Cummins Engine Company, Inc.
Director, Pepsico, Inc.
Edgar S. Woolard, Jr. Director, E.I. DuPont De Nemours & Company
</TABLE>
Item 29. Principal Underwriters.
(a) The Landmark Funds Broker-Dealer Services, Inc. ("LFBDS"), the
Registrant's Distributor, is also the distributor for Landmark International
Equity Fund, Landmark Emerging Asian Markets Equity Fund, Premium U.S. Treasury
Reserves, Premium Liquid Reserves, Landmark Institutional Liquid Reserves,
Landmark Institutional U.S. Treasury Reserves, Landmark Cash Reserves, Landmark
U.S. Treasury Reserves, Landmark New York Tax Free Reserves, Landmark California
Tax Free Reserves, Landmark Connecticut Tax Free Reserves, Landmark U.S.
Government Income Fund, Landmark Intermediate Income Fund, Landmark Balanced
Fund, Landmark Equity Fund, Landmark Small Cap Equity Fund, Landmark National
Tax Free Income Fund, Landmark New York Tax Free Income Fund, Landmark VIP Funds
(Landmark VIP U.S. Government Fund, Landmark VIP Balanced Fund, Landmark VIP
Equity Fund and Landmark VIP International Equity Fund), CitiSelectSM Folio 200,
CitiSelectSM Folio 300, CitiSelectSM Folio 400 and CitiSelectSM Folio 500. LFBDS
is also the placement agent for International Equity Portfolio, Balanced
Portfolio, Equity Portfolio, Small Cap Equity Portfolio, Government Income
Portfolio, Emerging Asian Markets Equity Portfolio, Cash Reserves Portfolio,
U.S. Treasury Reserves Portfolio, Asset Allocation Portfolio 200, Asset
Allocation Portfolio 300, Asset Allocation Portfolio 400, and Asset Allocation
Portfolio 500.
(b) The information required by this Item 29 with respect to each
director and officer of LFBDS is incorporated by reference to Schedule A of Form
BD filed by LFBDS pursuant to the Securities and Exchange Act of 1934 (File No.
8-32417).
(c) Not applicable.
Item 30. Location of Accounts and Records.
The accounts and records of the Registrant are located, in whole or in
part, at the office of the Registrant and the following locations:
<TABLE>
<CAPTION>
<S> <C>
NAME ADDRESS
The Landmark Funds Broker-Dealer Services, Inc. 6 St. James Avenue
(administrator and distributor) Boston, MA 02116
State Street Bank and Trust Company 1776 Heritage Drive
(custodian and transfer agent) North Quincy, MA 02171
Citibank, N.A. 153 East 53rd Street
(investment adviser) New York, NY 10043
SHAREHOLDER SERVICING AGENTS
Citibank, N.A. 450 West 33rd Street
New York, NY 10001
Citibank, N.A. -- Citigold Citicorp Mortgage Inc. - Citigold
15851 Clayton Road
Ballwin, MO 63011
Citibank, N.A. -- The Citibank 153 East 53rd Street
Private Bank New York, NY 10043
Citibank, N.A. -- Citibank Global 153 East 53rd Street
Asset Management New York, NY 10043
Citibank, N.A. -- North American 111 Wall Street
Investor Services New York, NY 10094
Citicorp Investment Services One Court Square
Long Island City, NY 11120
</TABLE>
Item 31. Management Services.
Not applicable.
Item 32. Undertakings.
(a) Not applicable.
(b) Not applicable.
(c) The Registrant undertakes to furnish to each person to whom a
prospectus of Landmark Tax Free Reserves is delivered with a
copy of its latest Annual Report to Shareholders, upon request
without charge.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant certifies that this
Post-Effective Amendment to its Registration Statement on Form N-1A meets all of
the requirements for effectiveness pursuant to Rule 485(b) under the Securities
Act of 1933 and that the Registrant has duly caused this Post-Effective
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boston and Commonwealth
of Massachusetts on the 21st day of August, 1996.
LANDMARK TAX FREE RESERVES
By: Philip W. Coolidge
---------------------
Philip W. Coolidge
President
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the Registration Statement has been signed below by
the following persons in the capacities indicated below on August 21, 1996.
Signature Title
--------- -----
Philip W. Coolidge President, Principal Executive Officer and Trustee
- ------------------------
Philip W. Coolidge
John R. Elder Principal Accounting and Financial Officer
- ------------------------
John R. Elder
H.B. Alvord* Trustee
- ------------------------
H.B. Alvord
C. Oscar Morong, Jr.* Trustee
- ------------------------
C. Oscar Morong, Jr.
E. Kirby Warren* Trustee
- ------------------------
E. Kirby Warren
*By: Philip W. Coolidge
- ------------------------
Philip W. Coolidge
Executed by Philip
W. Coolidge on
behalf of those
indicated pursuant
to Powers of Attorney.
<PAGE>
SIGNATURES
Tax Free Reserves Portfolio has duly caused this Post-Effective
Amendment to the Registration Statement on Form N-1A of Landmark Tax Free
Reserves to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston and Commonwealth of Massachusetts on the 21st
day of August, 1996.
TAX FREE RESERVES PORTFOLIO
By: Philip W. Coolidge
--------------------
Philip W. Coolidge
President
This Post-Effective Amendment to the Registration Statement on Form
N-1A of Landmark Tax Free Reserves has been signed by the following persons in
the capacities indicated on August 21, 1996.
Signature Title
--------- -----
Philip W. Coolidge President, Principal Executive Officer and Trustee
- ------------------------
Philip W. Coolidge
John R. Elder Principal Accounting and Financial Officer
- ------------------------
John R. Elder
Elliott J. Berv* Trustee
- ------------------------
Elliott J. Berv
Mark T. Finn* Trustee
- ------------------------
Mark T. Finn
Walter E. Robb, III* Trustee
- ------------------------
Walter E. Robb, III
*By: Philip W. Coolidge
- ------------------------
Philip W. Coolidge
Executed by Philip
W. Coolidge on
behalf of those
indicated pursuant
to Powers of Attorney.
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No.: Description:
- ------- ------------
<C> <C>
1(a) Declaration of Trust of the Registrant
1(b) Amendments to Declaration of Trust of the Registrant
2(a) Amended and Restated By-Laws of the Registrant
2(b) Amendments to Amended and Restated By-Laws of the Registrant
6 Distribution Agreement between the Registrant and The Landmark Funds
Broker-Dealer Services, Inc. ("LFBDS"), as distributor
7 Custodian Contract between the Registrant and State Street Bank and Trust
Company ("State Street"), as custodian
9(a) Amended and Restated Administrative Services Plan of the Registrant
9(b) Administrative Services Agreement between the Registrant and LFBDS, as
administrator
9(c) Sub-Administrative Services Agreement between Citibank, N.A. and LFBDS
9(d)(i) Form of Shareholder Servicing Agreement between the Registrant and Citibank,
N.A., as shareholder servicing agent
9(d)(ii) Form of Shareholder Servicing Agreement between the Registrant and a federal
savings bank, as shareholder servicing agent
9(d)(iii) Form of Shareholder Servicing Agreement between the Registrant and LFBDS, as
shareholder servicing agent
9(e) Transfer Agency and Servicing Agreement between the Registrant and State
Street, as transfer agent
9(f) Amended and Restated Exchange Privilege Agreement between the Registrant,
certain other investment companies and LFBDS, as distributor
10 Opinion and Consent of Counsel
15 Amended and Restated Distribution Plan of the Registrant
25(a) Powers of Attorney for the Registrant
25(b) Powers of Attorney for Tax Free Reserves Portfolio
</TABLE>
<PAGE>
EXHIBIT NO. 1(A)
THE LANDMARK FUNDS TAX FREE RESERVES
-----------------------------------
DECLARATION OF TRUST
Dated June 21, 1985
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I -Name and Definitions 1
Section 1.1 Name
Section 1.2 Definitions
ARTICLE II - Trustees 3
Section 2.1 Number of Trustees
Section 2.2 Term of Office of Trustees
Section 2.3 Resignation and Appointment of Trustees
Section 2.4 Vacancies
Section 2.5 Delegation of Power to Other Trustees
ARTICLE III- Powers of Trustees 4
Section 3.1 General
Section 3.2 Investments
Section 3.3 Legal Title
Section 3.4 Issuance and Repurchase of Securities
Section 3.5 Borrowing Money; Lending Trust Property
Section 3.6 Delegation; Committees
Section 3.7 Collection and Payment
Section 3.8 Expenses
Section 3.9 Manner of Acting; By-Laws
Section 3.10 Miscellaneous Powers
Section 3.11 Principal Transactions
Section 3.12 Trustees and Officers as Shareholders
ARTICLE IV- Investment Adviser, Distributor, Administrator 8
Transfer Agent and Shareholder Servicing Agents
Section 4.1 Investment Adviser
Section 4.2 Distributor
Section 4.3 Administrator
Section 4.4 Transfer Agent and Shareholder Servicing Agents
Section 4.5 Parties to Contract
ARTICLE V - Limitations of Liability of Shareholders, 10
Trustees and Others
Section 5.1 No Personal Liability of Shareholders, Trustees, etc.
Section 5.2 Non-Liability of Trustees, etc.
Section 5.3 Mandatory Indemnification
Section 5.4 No Bond Required of Trustees
Section 5.5 No Duty of Investigation; Notice in Trust Instruments, etc.
Section 5.6 Reliance on Experts, etc.
ARTICLE VI - Shares of Beneficial Interest 13
Section 6.1 Beneficial Interest
Section 6.2 Rights of Shareholders
Section 6.3 Trust Only
Section 6.4 Issuance of Shares
Section 6.5 Register of Shares
Section 6.6 Transfer of Shares
Section 6.7 Notices
Section 6.8 Voting Powers
Section 6.9 Series Designation
ARTICLE VII - Redemptions 18
Section 7.1 Redemptions
Section 7.2 Suspension of Right of Redemption
Section 7.3 Redemption of Shares; Disclosure of Holding
Section 7.4 Redemption of Accounts of less than $500
Section 7.5 Redemptions Pursuant to Constant Net Asset Value Formula
ARTICLE VIII - Determination of Net Asset Value, Net Income
and Distributions 20
Section 8.1 Net Asset Value
Section 8.2 Distributions to Shareholders
Section 8.3 Determination of Net Income; Constant Net Asset Value;
Reduction of Outstanding Shares
Section 8.4 Power to Modify Foregoing Procedures
ARTICLE IX - Duration; Termination of Trust; Amendment;
Mergers, Etc. 22
Section 9.1 Duration
Section 9.2 Termination of Trust
Section 9.3 Amendment Procedure
Section 9.4 Merger, Consolidation and Sale of Assets
Section 9.5 Incorporation, Reorganization
Section 9.6 Incorporation or Reorganization of Series
ARTICLE X - Reports to Shareholders and Shareholder
Communications 25
ARTICLE XI - Miscellaneous 25
Section 11.1 Filing
Section 11.2 Governing Law
Section 11.3 Counterparts
Section 11.4 Reliance by Third Parties
Section 11.5 Provisions in Conflict with Law or Regulations
SIGNATURE PAGE 27
<PAGE>
DECLARATION OF TRUST
OF
THE LANDMARK FUNDS TAX FREE RESERVES
------------------------------------
Dated June 21, 1985
------------------------------------
DECLARATION OF TRUST, made June 21, 1985, by Richard B. Bailey, A. Keith
Brodkin, Philip W. Coolidge and Stephen G. Moorhead (the "Trustees"):
WHEREAS, the Trustees desire to establish a trust for the investment and
reinvestment of funds contributed thereto; and
WHEREAS, the Trustees desire that the beneficial interest in the trust
assets be divided into transferable Shares of Beneficial Interest (without par
value) issued in one or more series as hereinafter provided;
NOW THEREFORE, the Trustees hereby declare that all money and property
contributed to the trust established hereunder shall be held and managed in
trust for the benefit of holders, from time to time, of the Shares of Beneficial
Interest (without par value) issued hereunder and subject to the provisions
hereof.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name. The name of the trust created hereby is the "The
Landmark Funds Tax Free Reserves".
Section 1.2. Definitions. Wherever they are used herein, the following
terms have the following respective meanings:
(a) "Administrator" means a party furnishing services to the Trust pursuant
to any contract described in Section 4.3 hereof.
(b) "By-Laws" means the By-laws referred to in Section 3.9 hereof, as from
time to time amended.
(c) "Commission" has the meaning given that term in the 1940 Act.
(d} "Custodian" means a party employed by the Trust to furnish services as
described in Article X of the By-laws.
(e) "Declaration" means this Declaration of Trust as amended from time to
time. Reference in this Declaration of Trust to "Declaration", "hereof",
"herein", and "hereunder" shall be deemed to refer to this Declaration rather
than the article or section in which such words appear.
(f) "Distributor" means a party furnishing services to the Trust pursuant
to any contract described in Section 4.2 hereof.
(g) "Interested Person" has the meaning given that term in the 1940 Act.
(h) "Investment Adviser" means a party furnishing services to the Trust
pursuant to any contract described in Section 4.1 hereof.
(i) "Majority Shareholder Vote" has the same meaning as the phrase "vote of
a majority of the outstanding voting securities" as defined in the 1940 Act,
except that such term may be used herein with respect to the Shares of the Trust
as a whole or the Shares of any particular series, as the context may require.
(j) "1940 Act" means the Investment Company Act of 1940 and the Rules and
Regulations thereunder, as amended from time to time.
(k) "Person" means and includes individuals, corporations, partnerships,
trusts, associations, joint ventures and other entities, whether or not legal
entities, and governments and agencies and political subdivisions thereof,
whether domestic or foreign.
(l) "Shareholder" means a record owner of outstanding Shares.
(m) "Shares" means the Shares of Beneficial Interest into which the
beneficial interest in the Trust shall be divided from time to time or, when
used in relation to any particular series of Shares established by the Trustees
pursuant to Section 6.9 hereof, equal proportionate transferable units into
which such series of Shares shall be divided from time to time. The term
"Shares" includes fractions of Shares as well as whole Shares.
(n) "Shareholder Servicing Agent" means a party furnishing services to the
Trust pursuant to any shareholder servicing contract described in Section 4.4
hereof.
(o) "Transfer Agent" means a party furnishing services to the Trust
pursuant to any transfer agency contract described in Section 4.4 hereof.
(p) "Trust" means the trust created hereby.
(q) "Trust Property" means any and all property, real or personal, tangible
or intangible, which is owned or held by or for the account of the Trust or the
Trustees, including, without limitation, any and all property allocated or
belonging to any series of Shares pursuant to Section 6.9 hereof.
(r) "Trustees" means the persons who have signed the Declaration, so long
as they shall continue in office in accordance with the terms hereof, and all
other persons who may from time to time be duly elected or appointed, qualified
and serving as Trustees in accordance with the provisions hereof, and reference
herein to a Trustee or the Trustees shall refer to such person or persons in
their capacity as trustees hereunder.
ARTICLE II
TRUSTEES
Section 2.1. Number of Trustees. 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 nor more than 15.
Section 2.2. Term of Office of Trustees. Subject to the provisions of
Section 16(a) of the 1940 Act, the Trustees shall hold office during the
lifetime of this Trust and until its termination as hereinafter provided; except
(a) that any Trustee may resign his trust (without need for prior or subsequent
accounting) by an instrument in writing signed by him and delivered to the other
Trustees, which shall take effect upon such delivery or upon such later date as
is specified therein; (b) that any Trustee may be removed with cause, at any
time by written instrument, signed by at least two-thirds of the remaining
Trustees, specifying the date when such removal shall become effective; (c) that
any Trustee who requests in writing to be retired or who has become
incapacitated by illness or injury may be retired by written instrument signed
by a majority of the other Trustees, specifying the date of his retirement; and
(d) a Trustee may be removed at any meeting of Shareholders by a vote of
two-thirds of the outstanding Shares of each series. Upon the resignation or
removal of a Trustee, or his otherwise ceasing to be a Trustee, he shall execute
and deliver such documents as the remaining Trustees shall require for the
purpose of conveying to the Trust or the remaining Trustees any Trust Property
held in the name of the resigning or removed Trustee. Upon the incapacity or
death of any Trustee, his legal representative shall execute and deliver on his
behalf such documents as the remaining Trustees shall require as provided in the
preceding sentence.
Section 2.3. Resignation and Appointment of Trustees. In case of the
declination, death, resignation, retirement, removal or inability of any of the
Trustees, or in case a vacancy shall, by reason of an increase in number, or for
any other reason, exist, the remaining Trustees shall fill such vacancy by
appointing such other individual as they in their discretion shall see fit. Such
appointment shall be evidenced by a written instrument signed by a majority of
the Trustees in office. Any such appointment shall not become effective,
however, until the person named in the written instrument of appointment shall
have accepted in writing such appointment and agreed in writing to be bound by
the terms of the Declaration. Within twelve months of such appointment, the
Trustees shall cause notice of such appointment to be mailed to each Shareholder
at his address as recorded on the books of the Trustees. An appointment of a
Trustee may be made by the Trustees then in office and notice thereof mailed to
Shareholders as aforesaid in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in number of Trustees effective at a later
date, provided that said appointment shall become effective only at or after the
effective date of said retirement, resignation or increase in number of
Trustees. The power of appointment is subject to the provisions of Section 16
(a) of the 1940 Act.
Section 2.4. Vacancies. 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 terms of
this Declaration. Whenever a vacancy in the number of Trustees shall occur,
until such vacancy is filled as provided in Section 2.3, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by the Declaration.
A written instrument certifying the existence of such vacancy signed by a
majority of the Trustees shall be conclusive evidence of the existence of such
vacancy.
Section 2.5. Delegation of Power to Other Trustees. Any Trustee may, by
power of attorney, delegate his power for a period not exceeding six months at
any one time to any other Trustee or Trustees; provided that in no case shall
fewer than two Trustees personally exercise the powers granted to the Trustees
under the Declaration except as herein otherwise expressly provided.
ARTICLE III
POWERS OF TRUSTEES
Section 3.1. General. The Trustees shall have exclusive and absolute
control over the Trust Property and over the business of the Trust to the same
extent as if the Trustees were the sole owners of the Trust Property and
business in their own right, but with such powers of delegation as may be
permitted by the Declaration. The Trustees shall have power to conduct the
business of the Trust and carry on its operations in any and all of its branches
and maintain offices both within and without the Commonwealth of Massachusetts,
in any and all states of the United States of America, in the District of
Columbia, and in any and all commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities of the United States of America and
of foreign governments, and to do all such other things and execute all such
instruments as the Trustees deem necessary, proper or desirable in order to
promote the interests of the Trust although such things are not herein
specifically mentioned. Any determination as to what is in the interests of the
Trust made by the Trustees in good faith shall be conclusive. In construing the
provisions of the Declaration, the presumption shall be in favor of a grant of
power to the Trustees.
The enumeration of any specific power herein shall not be construed as
limiting the aforesaid power. Such powers of the Trustees may be exercised
without order of or resort to any court.
Section 3.2. Investments. (a) The Trustees shall have the power:
(i) to conduct, operate and carry on the business of an investment company;
(ii) to subscribe for, invest in, reinvest in, purchase or otherwise
acquire, own, hold, pledge, sell, assign, transfer, exchange, distribute, lend
or otherwise deal in or dispose of U.S. and foreign currencies, any form of gold
or other precious metal, commodity contracts, contracts for the future
acquisition or delivery of fixed income or other securities, and securities of
every nature and kind, including, without limitation, all types of bonds,
debentures, stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness, commercial
paper, repurchase agreements, bankers' acceptances, and other securities of any
kind, issued, created, guaranteed or sponsored by any and all Persons,
including, without limitation,
(A) states, territories and possessions of the United States and the
District of Columbia and any political subdivision, agency or instrumentality of
any such Person,
(B) the U. S. Government, any foreign government, any political subdivision
or any agency or instrumentality of the U. S. Government, any foreign government
or any political subdivision of the U. S. Government or any foreign government,
(C) any international instrumentality,
(D) any bank or savings institution, or
(E) any corporation or organization organized under the laws of the United
States or of any state, territory or possession thereof, or under any foreign
law;
or in "when issued" contracts for any such securities, to retain Trust assets in
cash and from time to time change the securities or obligations in which the
assets of the Trust are invested; and to exercise any and all rights, powers and
privileges of ownership or interest in respect of any and all such investments
of every kind and description, including, without limitation, the right to
consent and otherwise act with respect thereto, with power to designate one or
more Persons to exercise any of said rights, powers and privileges in respect of
any of said investments; and
(iii) to carry on any other business in connection with or incidental to
any of the foregoing powers, to do everything necessary, proper or desirable for
the accomplishment of any purpose or the attainment of any object or the
furtherance of any power hereinbefore set forth, and to do every other act or
thing incidental or appurtenant to or connected with the aforesaid purposes,
objects or powers.
(b) The Trustees shall not be limited to investing in securities or
obligations maturing before the possible termination of the Trust, nor shall the
Trustees be limited by any law limiting the investments which may be made by
fiduciaries.
Section 3.3. Legal Title. Legal title to all Trust Property shall be vested
in the Trustees as joint tenants except that the Trustees shall have power to
cause legal title to any Trust Property to be held by or in the name of one or
more of the Trustees, or in the name of the Trust, or in the name of any other
Person or nominee, on such terms as the Trustees may determine. The right, title
and interest of the Trustees in the Trust Property shall vest automatically in
each Person who may hereafter become a Trustee. Upon the resignation, removal or
death of a Trustee, such Trustee shall automatically cease to have any right,
title or interest in any of the Trust Property, and the right, title and
interest of such Trustee in the Trust Property shall vest automatically in the
remaining Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered.
Section 3.4. Issuance and Repurchase of Securities. The Trustees shall have
the power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold,
resell, reissue, dispose of, transfer, and otherwise deal in Shares and, subject
to the provisions set forth in Articles VII, VIII and IX and Section 6.9 hereof,
to apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds of the Trust or other Trust Property whether
capital or surplus or otherwise, to the full extent now or hereafter permitted
by the laws of the Commonwealth of Massachusetts governing business
corporations.
Section 3.5. Borrowing Money; Lending Trust Property. The Trustees shall
have power to borrow money or otherwise obtain credit and to secure the same by
mortgaging, pledging or otherwise subjecting as security the Trust Property, to
endorse, guarantee, or undertake the performance of any obligation, contract or
engagement of any other Person and to lend Trust Property.
Section 3.6. Delegation; Committees. The Trustees shall have power to
delegate from time to time to such of their number or to officers, employees or
agents of the Trust the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient.
Section 3.7. Collection and Payment. Subject to Section 6.9 hereof, the
Trustees shall have power to collect all property due to the Trust; to pay all
claims, including taxes, against the Trust Property; to prosecute, defend,
compromise or abandon any claims relating to the Trust Property; to foreclose
any security interest securing any obligations, by virtue of which any property
is owed to the Trust; and to enter into releases, agreements and other
instruments.
Section 3.8. Expenses. Subject to Section 6.9 hereof, the Trustees shall
have the power to incur and pay any expenses which in the opinion of the
Trustees are necessary or incidental to carry out any of the purposes of the
Declaration, and to pay reasonable compensation from the funds of the Trust to
themselves as Trustees. The Trustees shall fix the compensation of all officers,
employees and Trustees.
Section 3.9. Manner of Actinq; By-Laws. Except as otherwise provided herein
or in the By-Laws, any action to be taken by the Trustees may be taken by a
majority of the Trustees present at a meeting of Trustees at which a quorum is
present, including any meeting held by means of a conference telephone circuit
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, or by written consents of all the Trustees.
The Trustees may adopt By-Laws not inconsistent with this Declaration to provide
for the conduct of the business of the Trust and may amend or repeal such
By-Laws to the extent such power is not reserved to the Shareholders.
Section 3.10. Miscellaneous Powers. The Trustees shall have the power to:
(a) employ or contract with such Persons as the Trustees may deem desirable for
the transaction of the business of the Trust; (b) enter into joint ventures,
partnerships and any other combinations or associations; (c) remove Trustees or
fill vacancies in or add to their number, elect and remove such officers and
appoint and terminate such agents or employees as they consider appropriate, and
appoint from their own number, and terminate, any one or more committees which
may exercise some or all of the power and authority of the Trustees as the
Trustees may determine; (d) purchase, and pay for out of Trust Property,
insurance policies insuring the Shareholders, the Administrator, Trustees,
officers, employees, agents, the Investment Adviser, the Distributor, selected
dealers or independent contractors of the Trust against all claims arising by
reason of holding any such position or by reason of any action taken or omitted
by any such Person in such capacity, whether or not constituting negligence, or
whether or not the Trust would have the power to indemnify such Person against
such liability; (e) establish pension, profit-sharing, Share purchase, and other
retirement, incentive and benefit plans for any Trustees, officers, employees or
agents of the Trust; (f) to the extent permitted by law, indemnify any person
with whom the Trust has dealings, including the Investment Adviser,
Administrator, Custodian, Distributor, Transfer Agent, Shareholder Servicing
Agent and any dealer, to such extent as the Trustees shall determine; (g)
determine and change the fiscal year of the Trust and the method by which its
accounts shall be kept; and (h) adopt a seal for the Trust, provided, that the
absence of such seal shall not impair the validity of any instrument executed on
behalf of the Trust.
Section 3.11. Principal Transactions. Except in transactions permitted by
the 1940 Act, or any order of exemption issued by the Commission, the Trustees
shall not, on behalf of the Trust, buy any securities (other than Shares) from
or sell any securities (other than Shares) to, or lend any assets of the Trust
to, any Trustee or officer of the Trust or any firm of which any such Trustee or
officer is a member acting as principal, or have any such dealings with the
Investment Adviser, Administrator, Shareholder Servicing Agent, Custodian,
Distributor or Transfer Agent or with any Interested Person of such Person; but
the Trust may, upon customary terms, employ any such Person, or firm or company
in which such Person is an Interested Person, as broker, legal counsel,
registrar, transfer agent, dividend disbursing agent or custodian.
Section 3.12. Trustees and Officers as Shareholders. Except as hereinafter
provided, no officer, Trustee or Member of the Advisory Board of the Trust, and
no member, partner, officer, director or trustee of the Investment Adviser,
Administrator or of the Distributor, and no Investment Adviser, Administrator or
Distributor of the Trust, shall take long or short positions in the securities
issued by the Trust. The foregoing provision shall not prevent:
(a) The Distributor from purchasing Shares from the Trust if such purchases
are limited (except for reasonable allowances for clerical errors, delays and
errors of transmission and cancellation of orders) to purchases for the purpose
of filling orders for Shares received by the Distributor and provided that
orders to purchase from the Trust are entered with the Trust or the Custodian
promptly upon receipt by the Distributor of purchase orders for Shares, unless
the Distributor is otherwise instructed by its customer;
(b) The Distributor from purchasing Shares as agent for the account of the
Trust;
(c) The purchase from the Trust or from the Distributor of Shares by any
officer, Trustee or member of the Advisory Board of the Trust or by any member,
partner, officer, director or trustee of the Investment Adviser or of the
Distributor at a price not lower than the net asset value of the Shares at the
moment of such purchase, provided that any such sales are only to be made
pursuant to a uniform offer described in the Trust's current prospectus or
statement of additional information; or
(d) The Investment Adviser, the Distributor, or any of their officers,
partners, directors or trustees from purchasing Shares prior to the effective
date of the Trust's Registration Statement under the Securities Act of 1933, as
amended, relating to the Shares.
ARTICLE IV
INVESTMENT ADVISER, DISTRIBUTOR, ADMINISTRATOR, TRANSFER AGENT
AND SHAREHOLDER SERVICING AGENTS
Section 4.1. Investment Adviser. Subject to a Majority Shareholder Vote of
the Shares of each series affected thereby, the Trustees may in their discretion
from time to time enter into one or more investment advisory or management
contracts whereby the other party to each such contract shall undertake to
furnish the Trust such management, investment advisory, statistical and research
facilities and services, promotional activities, and such other facilities and
services, if any, with respect to one or more series of Shares, as the Trustees
shall from time to time consider desirable and all upon such terms and
conditions as the Trustees may in their discretion determine. Notwithstanding
any provision of the Declaration, the Trustees may delegate to the Investment
Adviser authority (subject to such general or specific instructions as the
Trustees may from time to time adopt) to effect purchases, sales, loans or
exchanges of assets of the Trust on behalf of the Trustees or may authorize any
officer, employee or Trustee to effect such purchases, sales, loans or exchanges
pursuant to recommendations of the Investment Adviser (and all without further
action by the Trustees). Any of such purchases, sales, loans or exchanges shall
be deemed to have been authorized by all the Trustees. Such services may be
provided by one or more Persons.
Section 4.2. Distributor. The Trustees may in their discretion from time to
time enter into one or more distribution contracts providing for the sale of
Shares whereby the Trust may either agree to sell the Shares to the other party
to any such contract or appoint any such other party its sales agent for such
Shares. In either case, any such contract shall be on such terms and conditions
as the Trustees may in their discretion determine, provided that such terms and
conditions are not inconsistent with the provisions of the Declaration or the
By-Laws; and such contract may also provide for the repurchase or sale of Shares
by such other party as principal or as agent of the Trust and may provide that
such other party may enter into selected dealer agreements with registered
securities dealers to further the purpose of the distribution or repurchase of
the Shares. Such services may be provided by one or more Persons.
Section 4.3. Administrator. The Trustees may in their discretion from time
to time enter into one or more administration contracts whereby the other party
to each such contract shall undertake to furnish such administrative services to
the Trust as the Trustees shall from time to time consider desirable and all
upon such terms and conditions as the Trustees may in their discretion
determine, provided that such terms and conditions are not inconsistent with the
provisions of this Declaration or the By-Laws. Such services may be provided by
one or more persons.
Section 4.4. Transfer Agent and Shareholder Servicing Agents. The Trustees
may in their discretion from time to time enter into one or more transfer agency
and shareholder servicing contracts whereby the other party to each such
contract shall undertake to furnish such transfer agency and/or shareholder
services to the Trust as the Trustees shall from time to time consider desirable
and all upon such terms and conditions as the Trustees may in their discretion
determine, provided that such terms and conditions are not inconsistent with the
provisions of this Declaration or the By-Laws. Such services may be provided by
one or more Persons.
Section 4.5. Parties to Contract. Any contract of the character described
in Section 4.1, 4.2, 4.3 or 4.4 of this Article IV or any Custodian contract may
be entered into with any Person, although one or more of the Trustees or
officers of the Trust may be an officer, partner, director, trustee,
shareholder, or member of such other party to the contract, and no such contract
shall be invalidated or rendered voidable by reason of the existence of any such
relationship; nor shall any Person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Trust under or by
reason of any such contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was not
inconsistent with the provisions of the Article IV or the By-Laws. The same
Person may be the other party to contracts entered into pursuant to Sections
4.1, 4.2, 4.3 and 4.4 above or any Custodian contract, and any individual may be
financially interested or otherwise affiliated with Persons who are parties to
any or all of the contracts mentioned in this Section 4.5.
ARTICLE V
LIMITATIONS OF LIABILITY OF SHAREHOLDERS,
TRUSTEES AND OTHERS
Section 5.1. No Personal Liability of Shareholders, Trustees, etc. No
Shareholder shall be subject to any personal liability whatsoever to any Person
in connection with Trust Property or the acts, obligations or affairs of the
Trust. No Trustee, officer, employee or agent of the Trust shall be subject to
any personal liability whatsoever to any Person, other than the Trust or its
Shareholders, in connection with Trust Property or the affairs of the Trust,
save only that arising from bad faith, wilful misfeasance, gross negligence or
reckless disregard for his duty to such Person; and all such Persons shall look
solely to the Trust Property for satisfaction of claims of any nature arising in
connection with the affairs of the Trust. If any Shareholder, Trustee, officer,
employee, or agent, as such, of the Trust, is made a party to any suit or
proceeding to enforce any such liability, he shall not, on account thereof, be
held to any personal liability. The Trust shall indemnify and hold each
Shareholder harmless from and against all claims and liabilities to which such
Shareholder may become subject by reason of his being or having been a
Shareholder, and shall reimburse such Shareholder for all legal and other
expenses reasonably incurred by him in connection with any such claim or
liability. The rights accruing to a Shareholder under this Section 5.1 shall not
exclude any other right to which such Shareholder may be lawfully entitled, nor
shall anything herein contained restrict the right of the Trust to indemnify or
reimburse a Shareholder in any appropriate situation even though not
specifically provided herein. Notwithstanding any other provision of this
Declaration to the contrary, no Trust Property shall be used to indemnify or
reimburse any Shareholder of any Shares of any series other than Trust Property
allocated or belonging to such series.
Section 5.2. Non-Liability of Trustees, etc. No Trustee, officer, employee
or agent of the Trust shall be liable to the Trust, its Shareholders, or to any
Shareholder, Trustee, officer, employee, or agent thereof for any action or
failure to act (including without limitation the failure to compel in any way
any former or acting Trustee to redress any breach of trust) except for his own
bad faith, wilful misfeasance, gross negligence or reckless disregard of his
duties.
Section 5.3. Mandatory Indemnification. (a) Subject to the exceptions and
limitations contained in paragraph (b) below:
(i) every person who is or has been a Trustee or officer of the Trust shall
be indemnified by the Trust against all liability and against all expenses
reasonably incurred or paid by him in connection with any claim, action, suit or
proceeding in which he becomes involved as a party or otherwise by virtue of his
being or having been a Trustee or officer and against amounts paid or incurred
by him in the settlement thereof;
(ii) the words "claim", "action", "suit", or "proceeding" shall apply to
all claims, actions, suits or proceedings (civil, criminal, administrative or
other, including appeals), actual or threatened; and the words "liability" and
"expenses" shall include, without limitation, attorneys' fees, costs, judgments,
amounts paid in settlement, fines penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a Trustee or officer:
(i) against any liability to the Trust or the Shareholders by reason of a
final adjudication by the court or other body before which the proceeding was
brought that he engaged in wilful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office;
(ii) with respect to any matter as to which he shall have been finally
adjudicated not to have acted in good faith in the reasonable belief that his
action was in the best interest of the Trust; or
(iii) in the event of a settlement involving a payment by a Trustee or
officer or other disposition not involving a final adjudication as provided in
paragraph (b) (i) or (b) (ii) above resulting in a payment by a Trustee or
officer, unless there has been either a determination that such Trustee or
officer did not engage in wilful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office by the
court or other body approving the settlement or other disposition or by a
reasonable determination, based upon a review of readily available facts (as
opposed to a full trial-type inquiry) that he did not engage in such conduct:
(A) by vote of a majority of the Disinterested Trustees acting on the
matter (provided that a majority of the Disinterested Trustees then in office
act on the matter); or
(B) by written opinion of independent legal counsel.
(c) The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not affect any other
rights to which any Trustee or officer may now or hereafter be entitled, shall
continue as to a Person who has ceased to be such Trustee or officer and shall
inure to the benefit of the heirs, executors and administrators of such Person.
Nothing contained herein shall affect any rights to indemnification to which
personnel other than Trustees and officers may be entitled by contract or
otherwise under law.
(d) Expenses of preparation and presentation of a defense to any claim,
action, suit, or proceeding of the character described in paragraph (a) of this
Section 5.3 shall be advanced by the Trust prior to final disposition thereof
upon receipt of an undertaking by or on behalf of the recipient to repay such
amount if it is ultimately determined that he is not entitled to indemnification
under this Section 5.3, provided that either:
(i) such undertaking is secured by a surety bond or some other appropriate
security or the Trust shall be insured against losses arising out of any such
advances; or
(ii) a majority of the Disinterested Trustees acting on the matter
(provided that a majority of the Disinterested Trustees then in office act on
the matter) or an independent legal counsel in a written opinion, shall
determine, based upon a review of readily available facts (as opposed to a full
trial-type inquiry), that there is reason to believe that the recipient
ultimately will be found entitled to indemnification.
As used in this Section 5.3 a "Disinterested Trustee" is one (i) who is not
an "Interested Person" of the Trust (including anyone who has been exempted from
being an "Interested Person" by any rule, regulation or order of the
Commission), and (ii) 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 had been pending.
Section 5.4. No Bond Required of Trustees. No Trustee shall be obligated to
give any bond or other security for the performance of any of his duties
hereunder.
Section 5.5. No Duty of Investigation; Notice in Trust Instruments, etc. No
purchaser, lender, Transfer Agent or other Person dealing with the Trustees or
any officer, employee or agent of the Trust shall be bound to make any inquiry
concerning the validity of any transaction purporting to be made by the Trustees
or by said officer, employee or agent or be liable for the application of money
or property paid, loaned, or delivered to or on the order of the Trustees or of
said officer, employee or agent. Every obligation, contract, instrument,
certificate, Share, other security of the Trust or undertaking, and every other
act or thing whatsoever executed in connection with the Trust shall be
conclusively presumed to have been executed or done by the executors thereof
only in their capacity as Trustees under the Declaration or in their capacity as
officers, employees or agents of the Trust. Every written obligation, contract,
instrument, certificate, Share, other security of the Trust or undertaking made
or issued by the Trustees shall recite that the same is executed or made by them
not individually, but as Trustees under the Declaration, and that the
obligations of any such instrument are not binding upon any of the Trustees or
Shareholders individually, but bind only the trust estate, and may contain any
further recital which they or he may deem appropriate, but the omission of such
recital shall not operate to bind any of the Trustees or Shareholders
individually. The Trustees shall at all times maintain insurance for the
protection of the Trust Property, the Trust's Shareholders, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to cover
possible tort liability, and such other insurance as the Trustees in their sole
judgment shall deem advisable.
Section 5.6. Reliance on Experts, etc. Each Trustee and officer or employee
of the Trust shall, in the performance of his duties, be fully and completely
justified and protected with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account or other records of the
Trust, upon an opinion of counsel, or upon reports made to the Trust by any of
its officers or employees or by the Investment Adviser, the Distributor,
Transfer Agent, Shareholder Servicing Agents, selected dealers, accountants,
appraisers or other experts or consultants selected with reasonable care by the
Trustees, officers or employees of the Trust, regardless of whether such counsel
or expert may also be a Trustee.
ARTICLE VI
SHARES OF BENEFICIAL INTEREST
Section 6.1. Beneficial Interest. The interest of the beneficiaries
hereunder may be divided into transferable Shares of Beneficial Interest
(without par value), all of one class, which may be divided into one or more
series as provided in Section 6.9 hereof. The number of shares authorized
hereunder is unlimited. All Shares issued hereunder including, without
limitation, Shares issued in connection with a dividend in Shares or a split of
Shares, shall be fully paid and non-assessable.
Section 6.2. Rights of Shareholders. The ownership of the Trust Property of
every description and the right to conduct any business hereinbefore described
are vested exclusively in the Trustees, and the Shareholders shall have no
interest therein other than the beneficial interest conferred by their Shares,
and they shall have no right to call for any partition or division of any
property, profits, rights or interests of the Trust nor can they be called upon
to assume any losses of the Trust or suffer an assessment of any kind by virtue
of their ownership of Shares. The Shares shall be personal property giving only
the rights specifically set forth in the Declaration. The Shares shall not
entitle the holder to preference, pre-emptive, appraisal, conversion or exchange
rights, except as the Trustees may determine with respect to any series of
Shares.
Section 6.3. Trust Only. It is the intention of the Trustees to create only
the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
Nothing in the Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
Section 6.4. Issuance of Shares. The Trustees, in their discretion may,
from time to time without vote of the Shareholders, issue Shares, in addition to
the then issued and outstanding Shares and Shares held in the treasury, to such
party or parties and for such amount and type of consideration, including cash
or property, at such time or times, and on such terms as the Trustees may deem
best, and may in such manner acquire other assets (including the acquisition of
assets subject to, and in connection with the assumption of liabilities) and
businesses. In connection with any issuance of Shares, the Trustees may issue
fractional Shares. The Trustees may from time to time divide or combine the
Shares of any series into a greater or lesser number without thereby changing
their proportionate beneficial interests in Trust Property allocated or
belonging to such series. Contributions to the Trust may be accepted for, and
Shares shall be redeemed as, whole Shares and/or 1/1,000ths of a Share or
integral multiples thereof.
Section 6.5. Register of Shares. A register or registers shall be kept at
the principal office of the Trust or at an office of the Transfer Agent or any
one or more Shareholder Servicing Agents which register or registers, taken
together, shall contain the names and addresses of the Shareholders and the
number of Shares held by them respectively and a record of all transfers
thereof. Such register or registers shall be conclusive as to who are the
holders of the Shares and who shall be entitled to receive dividends or
distributions or otherwise to exercise or enjoy the rights of Shareholders. No
Shareholder shall be entitled to receive payment of any dividend or
distribution, nor to have notice given to him as herein or in the By-Laws
provided, until he has given his address to the Transfer Agent, the Shareholder
Servicing Agent which is the agent of record for such Shareholder, or such other
officer or agent of the Trustees as shall keep the said register for entry
thereon. It is not contemplated that certificates will be issued for the Shares;
however, the Trustees, in their discretion, may authorize the issuance of Share
certificates and promulgate appropriate rules and regulations as to their use.
Section 6.6. Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by his agent thereunto
duly authorized in writing, upon delivery to the Trustees, the Transfer Agent or
the Shareholder Servicing Agent which is the agent of record for such
Shareholder, of a duly executed instrument of transfer, together with any
certificate or certificates (if issued) for such Shares and such evidence of the
genuineness of each such execution and authorization and of other matters as may
reasonably be required. Upon such delivery the transfer shall be recorded on the
register of the Trust. Until such record is made, the Shareholder of record
shall be deemed to be the holder of such Shares for all purposes hereunder and
neither the Trustees nor any Transfer Agent or registrar nor any officer,
employee or agent of the Trust shall be affected by any notice of the proposed
transfer.
Any person becoming entitled to any Shares in consequence of the death,
bankruptcy, or incompetence of any Shareholder, or otherwise by operation of
law, shall be recorded on the register of Shares as the holder of such Shares
upon production of the proper evidence thereof to the Trustees, the Transfer
Agent or the Shareholder Servicing Agent which is the agent of record for such
Shareholder; but until such record is made, the Shareholder of record shall be
deemed to be the holder of such Shares for all purposes hereunder and neither
the Trustees nor any Transfer Agent, Shareholder Servicing Agent or registrar
nor any officer or agent of the Trust shall be affected by any notice of such
death, bankruptcy or incompetence, or other operation of law.
Section 6.7. Notices. Any and all notices to which any Shareholder may be
entitled and any and all communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to any Shareholder of record at his last
known address as recorded on the register of the Trust.
Section 6.8. Voting Powers. The Shareholders shall have power to vote only
(i) for the removal of Trustees as provided in Section 2.2 hereof, (ii) with
respect to any investment advisory or management contract as provided in Section
4.1 hereof, (iii) with respect to termination of the Trust as provided in
Section 9.2 hereof, (iv) with respect to any amendment of this Declaration to
the extent and as provided in Section 9.3 hereof, (v) with respect to any
merger, consolidation or sale of assets as provided in Sections 9.4 and 9.6
hereof, (vi) with respect to incorporation of the Trust or any series to the
extent and as provided in Sections 9.5 and 9.6 hereof, (vii) 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 (viii) with respect to such additional matters relating to the
Trust as may be required by the Declaration, the By-Laws or any registration of
the Trust with the Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. Each whole Share shall be entitled
to one vote as to any matter on which it is entitled to vote and each fractional
Share shall be entitled to a proportionate fractional vote, except that Shares
held in the treasury of the Trust shall not be voted. Shares shall be voted by
individual series on any matter submitted to a vote of the Shareholders of the
Trust except as provided in Section 6.9(g) hereof. There shall be no cumulative
voting in the election of Trustees. Until Shares are issued, the Trustees may
exercise all rights of Shareholders and may take any action required by law, the
Declaration or the By-Laws to be taken by Shareholders. The By-Laws may include
further provisions for Shareholder votes and meetings and related matters.
Section 6.9. Series Designation. Shares of the Trust may be divided into
series, the number and relative rights, privileges and preferences of which
shall be established and designated by the Trustees, in their discretion, in
accordance with the terms of this Section 6.9. The Trustees may from time to
time exercise their power to authorize the division of Shares into one or more
series by establishing and designating one or more series of Shares upon and
subject to the following provisions:
(a) All Shares shall be identical except that there may be such variations
as shall be fixed and determined by the Trustees between different series as to
purchase price, right of redemption and the price, terms and manner of
redemption, and special and relative rights as to dividends and on liquidation.
(b) The number of authorized Shares and the number of Shares of each series
that may be issued shall be unlimited. The Trustees may classify or reclassify
any unissued Shares or any Shares previously issued and reacquired of any series
into one or more series that may be established and designated from time to
time. The Trustees may hold as treasury shares (of the same or some other
series), reissue for such consideration and on such terms as they may determine,
or cancel any Shares of any series reacquired by the Trust at their discretion
from time to time.
(c) All consideration received by the Trust for the issue or sale of Shares
of a particular series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall irrevocably belong to that series for
all purposes, subject only to the rights of creditors of such series, and shall
be so recorded upon the books of account of the Trust. In the event that there
are any assets, income, earnings, profits, and proceeds thereof, funds, or
payments which are not readily identifiable as belonging to any particular
series, the Trustees shall allocate them among any one or more of the series
established and designated from time to time in such manner and on such basis as
they, in their sole discretion, deem fair and equitable. Each such allocation by
the Trustees shall be conclusive and binding upon the Shareholders of all series
for all purposes. No holder of Shares of any particular series shall have any
claim on or right to any assets allocated or belonging to any other series of
Shares.
(d) The assets belonging to each particular series shall be charged with
the liabilities of the Trust in respect of that series and all expenses, costs,
charges and reserves attributable to that series, and any general liabilities,
expenses, costs, charges or reserves of the Trust which are not readily
identifiable as belonging to any particular series shall be allocated and
charged by the Trustees to and among any one or more of the series established
and designated from time to time in such manner and on such basis as the
Trustees in their sole discretion deem fair and equitable. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the holders of all series for all purposes. The
Trustees shall have full discretion, to the extent not inconsistent with the
1940 Act, to determine which items shall be treated as income and which items as
capital; and each such determination and allocation shall be conclusive and
binding upon the Shareholders. Under no circumstances shall the assets allocated
or belonging to any particular series be charged with liabilities attributable
to any other series. All Persons who have extended credit which has been
allocated to a particular series, or who have a claim or contract which has been
allocated to any particular series, shall look only to the assets of that
particular series for payment of such credit, claim or contract.
(e) The power of the Trustees to invest and reinvest the Trust Property
allocated or belonging to any particular series shall be governed by Section 3.2
hereof unless otherwise provided in the instrument of the Trustees establishing
such series which is hereinafter described.
(f) Each Share of a series shall represent a beneficial interest in the net
assets allocated or belonging to such series only, and such interest shall not
extend to the assets of the Trust generally. Dividends and distributions on
Shares of a particular series may be paid with such frequency as the Trustees
may determine, which may be daily or otherwise, pursuant to a standing
resolution or resolutions adopted only once or with such frequency as the
Trustees may determine, to the holders of Shares of that series only, from such
of the income and capital gains, accrued or realized, from the assets belonging
to that series, as the Trustees may determine, after providing for actual and
accrued liabilities belonging to that series. All dividends and distributions on
Shares of a particular series shall be distributed pro rata to the holders of
that series in proportion to the number of Shares of that series held by such
holders at the date and time of record established for the payment of such
dividends or distributions. Shares of any particular series of the Trust may be
redeemed solely out of Trust Property allocated or belonging to that series.
Upon liquidation or termination of a series of the Trust, Shareholders of such
series shall be entitled to receive a pro rata share of the net assets of such
series only.
(g) Notwithstanding any provision hereof to the contrary, on any matter
submitted to a vote of the Shareholders of the Trust, all Shares then entitled
to vote shall be voted by individual series, except that (i) when required by
the 1940 Act to be voted in the aggregate, Shares shall not be voted by
individual series, and (ii) when the Trustees have determined that the matter
affects only the interests of Shareholders of one or more series, only
Shareholders of such series shall be entitled to vote thereon.
(h) The establishment and designation of any series of Shares shall be
effective upon the execution by a majority of the then Trustees of an instrument
setting forth such establishment and designation and the relative rights and
preferences of such series, or as otherwise provided in such instrument. At any
time that there are no Shares outstanding of any particular series previously
established and designated, the Trustees may by an instrument executed by a
majority of their number abolish that series and the establishment and
designation thereof. Each instrument referred to in this paragraph shall have
the status of an amendment to this Declaration.
ARTICLE VII
REDEMPTIONS
Section 7.1 Redemptions. In case any Shareholder at any time desires to
dispose of his Shares, he may deposit his certificate or certificates therefor,
duly endorsed in blank or accompanied by an instrument of transfer executed in
blank, or if the Shares are not represented by any certificates, a written
request or other such form of request as the Trustees may from time to time
authorize, at the office of the Transfer Agent, the Shareholder Servicing Agent,
or at the office of any bank or trust company, either in or outside of
Massachusetts, which is a member of the Federal Reserve System and which the
said Transfer Agent or the said Shareholder Servicing Agent has designated in
writing for that purpose, together with an irrevocable offer in writing in a
form acceptable to the Trustees to sell the Shares represented thereby to the
Trust at the net asset value thereof per Share, determined as provided in
Section 8.1 hereof, next after such deposit. Payment for said Shares shall be
made to the Shareholder within seven days after the date on which the deposit is
made, unless (i) the date of payment is postponed pursuant to Section 7.2
hereof, or (ii) the receipt, or verification of receipt, of the purchase price
for the Shares to be redeemed is delayed, in either of which event payment may
be delayed beyond seven days.
Section 7.2 Suspension of Right of Redemption. The Trust may declare a
suspension of the right of redemption or postpone the date of payment of the
redemption proceeds for the whole or any part of any period (i) during which the
New York Stock Exchange is closed other than customary week-end and holiday
closings, (ii) during which trading on the New York Stock Exchange is
restricted, (iii) during which an emergency exists as a result of which disposal
by the Trust of securities owned by it is not reasonably practicable or it is
not reasonably practicable for the Trust fairly to determine the value of its
net assets, or (iv) during any other period when the Commission may for the
protection of security holders of the Trust by order permit suspension of the
right of redemption or postponement of the date of payment of the redemption
proceeds; provided that applicable rules and regulations of the Commission shall
govern as to whether the conditions prescribed in (ii), (iii) or (iv) exist.
Such suspension shall take effect at such time as the Trust shall specify but
not later than the close of business on the business day next following the
declaration of suspension, and thereafter there shall be no right of redemption
or payment of the redemption proceeds until the Trust shall declare the
suspension at an end, except that the suspension shall terminate in any event on
the first day on which said stock exchange shall have reopened or the period
specified in (ii) or (iii) shall have expired (as to which, in the absence of an
official ruling by the Commission, the determination of the Trust shall be
conclusive). In the case of a suspension of the right of redemption, a
Shareholder may either withdraw his request for redemption or receive payment
based on the net asset value existing after the termination of the suspension.
Section 7.3. Redemption of Shares; Disclosure of Holding. If the Trustees
shall, at any time and in good faith, be of the opinion that direct or indirect
ownership of Shares or other securities of the Trust has or may become
concentrated in any Person to an extent which would disqualify the Trust as a
regulated investment company under the Internal Revenue Code of 1954, as amended
(the "Code"), then the Trustees shall have the power by lot or other means
deemed equitable by them (i) to call for redemption by any such Person a number,
or principal amount, of Shares or other securities of the Trust sufficient to
maintain or bring the direct or indirect ownership of shares or other securities
of the Trust into conformity with the requirements for such qualification, and
(ii) to refuse to transfer or issue Shares or other securities of the Trust to
any Person whose acquisition of the Shares or other securities of the Trust in
question would result in such disqualification. The redemption shall be effected
at the redemption price and in the manner provided in Section 7.1 hereof.
The holders of Shares or other securities of the Trust shall upon demand
disclose to the Trustees in writing such information with respect to direct and
indirect ownership of Shares or other securities of the Trust as the Trustees
deem necessary to comply with the provisions of the Code, or to comply with the
requirements of any other authority. Upon the failure of a Shareholder to
disclose such information and to comply with such demand of the Trustees, the
Trust shall have the power to redeem such Shares at a redemption price
determined in accordance with Section 7.1 hereof.
Section 7.4 Redemptions of Accounts of Less than $500. The Trustees shall
have the power at any time to redeem Shares of any Shareholder at a redemption
price determined in accordance with Section 7.1 hereof if at such time the
aggregate net asset value of the Shares in such Shareholder's account is less
than $500. A Shareholder shall be notified that the value of his account is less
than S500 and allowed 60 days to make an additional investment before redemption
is processed.
Section 7.5 Redemptions Pursuant to Constant Net Asset Value Formula. The
Trust may also reduce the number of outstanding Shares pursuant to the
provisions of Section 8.3 hereof.
ARTICLE VIII
DETERMINATION OF NET ASSET VALUE,
NET INCOME AND DISTRIBUTIONS
Section 8.1 Net Asset Value. The value of the assets of the Trust shall be
determined by appraisal of the securities owned by the Trust in the manner
described in Section 8.3 hereof. From the total value of said assets, there
shall be deducted all indebtedness, interest, taxes, payable or accrued,
including estimated taxes on unrealized book profits, expenses and management
charges accrued to the appraisal date, net income determined and declared as a
dividend and all other items in the nature of liabilities which shall be deemed
appropriate. The resulting amount which shall represent the total net assets of
the Trust shall be divided by the number of Shares outstanding at the time and
the quotient so obtained shall be deemed to be the net asset value of each
Share. The net asset value of the Shares shall be determined each day during
which the New York Stock Exchange is open for trading. This determination shall
be made once during each day as of 12:00 noon, New York City time and at such
other time or times as the Trustees may determine. The power and duty to make
the daily calculations may be delegated by the Trustees to the Investment
Adviser, the Custodian, the Transfer Agent or such other Person as the Trustees
by vote may determine. The Trustees may suspend the daily determination of net
asset value to the extent permitted by the 1940 Act.
Section 8.2 Distributions to Shareholders. The Trustees shall from time to
time distribute ratably among the Shareholders such proportion of the net
profits, surplus (including paid-in surplus), capital, or assets held by the
Trustees as they may deem proper. Such distribution may be made in cash or
property (including, without limitation, any type of obligations of the Trust or
any assets thereof), and the Trustees may distribute ratably among the
Shareholders additional Shares issuable hereunder in such manner, at such times,
and on such terms as the Trustees may deem proper. Such distributions may be
among the Shareholders of record at the time of declaring a distribution or
among the Shareholders of record at such later date as the Trustees shall
determine. To the extent the Trustees deem appropriate as a matter of
administrative convenience, distributions to Shareholders of the Trust may be
effected on different dates to different Shareholders, provided that such
distributions shall be made at regularly occurring intervals of approximately
the same length with respect to each Shareholder of the Trust. The Trustees may
always retain from the net profits such amount as they may deem necessary to pay
the debts or expenses of the Trust or to meet obligations of the Trust, or as
they may deem desirable to use in the conduct of its affairs or to retain for
future requirements or extensions of the business. The Trustees may adopt and
offer to Shareholders such dividend reinvestment plans, cash dividend payout
plans or related plans as the Trustees shall deem appropriate.
Inasmuch as the computation of net income and gains for federal income tax
purposes may vary from the computation thereof on the books of the Trust, the
above provisions shall be interpreted to give the Trustees the power in their
discretion to distribute for any fiscal year as ordinary dividends and as
capital gains distributions, respectively, additional amounts sufficient to
enable the Trust to avoid or reduce liability for taxes.
Section 8.3 Determination of Net Income; Constant Net Asset Value;
Reduction of Outstanding Shares. The net income of the Trust shall consist of
(i) all interest income accrued on portfolio assets of the Trust, (ii) less all
actual and accrued expenses determined in accordance with generally accepted
accounting principles, and (iii) plus or minus any net realized gains or losses
and any net unrealized gains or losses on the assets of the Trust. Interest
income shall include discount earned (including both original issue and market
discount) on paper accrued ratably to the date of maturity. Securities being
valued shall be appraised on the basis of their amortized cost, or by such other
method as shall be deemed to reflect their fair value. Expenses of the Trust,
including advisory and service fees, shall be accrued each day. Such net income
shall be determined by or under the direction of the Trustees at each time the
net asset value per share is determined pursuant to Section 8.1 hereof, and all
the net income of the Trust so determined shall be declared as a dividend in
Shares to Shareholders at the time of such determination. If, for any reason,
the net income of the Trust determined at any time is a negative amount, the
Trustees shall have the power, after first offsetting each Shareholder's pro
rata share of such negative amount from the accrued dividend account of such
Shareholder, to reduce the number of outstanding shares of the Trust by reducing
the number of Shares in the account of such Shareholder by that number of full
and fractional Shares which represents that account's pro rata share of such
excess negative net income. As a result of this determination and declaration as
a dividend of net income, the net asset value per Share of the Trust is
intended, subject to the following paragraph, to remain at a constant dollar
amount per Share immediately after each such determination and declaration. The
Trustees shall have full discretion to determine whether any cash or property
received shall be treated as income or as principal and whether any item or
expense shall be charged to the income or the principal account, and their
determination made in good faith shall be conclusive upon the Shareholders. In
the case of stock dividends received, the Trustees shall have full discretion to
determine, in the light of the particular circumstances, how much, if any, of
the value thereof shall be treated as income, the balance, if any, to be treated
as principal.
The Trustees may discontinue or amend the practice of maintaining the net
asset value per share at a constant dollar amount at any time.
Section 8.4. Power to Modify Foregoing Procedures. Notwithstanding any of
the foregoing provisions of this Article VIII, the Trustees may prescribe, in
their absolute discretion, such other bases and times for determining the per
Share net asset value of the Shares or net income, or the declaration and
payment of dividends and distributions as they may deem necessary or desirable.
Without limiting the generality of the foregoing, the Trustees may establish
several series of Shares in accordance with Section 6.9 hereof.
ARTICLE IX
DURATION; TERMINATION OF TRUST;
AMENDMENT; MERGERS, ETC.
Section 9.1. Duration. The Trust shall continue without limitation of time
but subject to the provisions of this Article IX.
Section 9.2. Termination of Trust. (a) The Trust may be terminated (i) by a
Majority Shareholder Vote of the holders of its Shares, or (ii) by the Trustees
by written notice to the Shareholders. Any series of the Trust may be terminated
(i) by a Majority Shareholder Vote of the holders of Shares of that series, or
(ii) by the Trustees by written notice to the Shareholders of that series. Upon
the termination of the Trust or any series of the Trust:
(i) The Trust or series of the Trust shall carry on no business except for
the purpose of winding up its affairs;
(ii) The Trustees shall proceed to wind up the affairs of the Trust or
series of the Trust and all the powers of the Trustees under this Declaration
shall continue until the affairs of the Trust or series of the Trust shall have
been wound up, including the power to fulfill or discharge the contracts of the
Trust or series of the Trust, collect its assets, sell, convey, assign,
exchange, transfer or otherwise dispose of all or any part of the remaining
Trust Property or Trust Property of the series to one or more persons at public
or private sale for consideration which may consist in whole or in part of cash,
securities or other property of any kind, discharge or pay its liabilities, and
to do all other acts appropriate to liquidate its business; provided, that any
sale, conveyance, assignment, exchange, transfer or other disposition of all or
substantially all the Trust Property shall require Shareholder approval in
accordance with Section 9.4 hereof, and any sale, conveyance, assignment,
exchange, transfer or other disposition of all or substantially all of the Trust
Property allocated or belonging to any series shall require the approval of the
Shareholders of such series as provided in Section 9.6 hereof; and
(iii) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and refunding
agreements as they deem necessary for their protection, the Trustees may
distribute the remaining Trust Property or Trust Property of the series, in cash
or in kind or partly in cash and partly in kind, among the Shareholders of the
Trust or the series according to their respective rights.
(b) After termination of the Trust or series and distribution to the
Shareholders of the Trust or series as herein provided, a majority of the
Trustees shall execute and lodge among the records of the Trust an instrument in
writing setting forth the fact of such termination, and the Trustees shall
thereupon be discharged from all further liabilities and duties hereunder with
respect to the Trust or series, and the rights and interests of all Shareholders
of the Trust or series shall thereupon cease.
Section 9.3. Amendment Procedure. (a) This Declaration may be amended by a
Majority Shareholder Vote of the Shareholders of the Trust or by any instrument
in writing, without a meeting, signed by a majority of the Trustees and
consented to by the holders of not less than a majority of the Shares of the
Trust. The Trustees may also amend this Declaration without the vote or consent
of Shareholders to designate series in accordance with Section 6.9 hereof, to
change the name of the Trust, to supply any omission, to cure, correct or
supplement any ambiguous, defective or inconsistent provision hereof, or if they
deem it necessary or advisable to conform this Declaration to the requirements
of applicable federal laws or regulations or the requirements of the regulated
investment company provisions of the Internal Revenue Code of 1954, as amended,
but the Trustees shall not be liable for failing so to do.
(b) No amendment which the Trustees shall have determined shall affect the
rights, privileges or interests of holders of a particular series of Shares, and
which would otherwise require a Majority Shareholder Vote under paragraph 3(a)
of this Section 9, but not the rights, privileges or interests of holders of
Shares of the Trust generally, may be made except with the vote or consent by a
Majority Shareholder Vote of such series.
(c) Notwithstanding any other provision hereof, no amendment may be made
under this Section 9.3 which would change any rights with respect to the Shares,
or any series of Shares, by reducing the amount payable thereon upon liquidation
of the Trust or by diminishing or eliminating any voting rights pertaining
thereto, except with the Majority Shareholder Vote of the Shares or that series
of Shares. Nothing contained in this Declaration shall permit the amendment of
this Declaration to impair the exemption from personal liability of the
Shareholders, Trustees, officers, employees and agents of the Trust or to permit
assessments upon Shareholders.
(d) A certificate signed by a majority of the Trustees setting forth an
amendment and reciting that it was duly adopted by the Shareholders or by the
Trustees as aforesaid or a copy of the Declaration, as amended, and executed by
a majority of the Trustees, shall be conclusive evidence of such amendment when
lodged among the records of the Trust.
(e) Notwithstanding any other provision hereof, until such time as a
Registration Statement under the Securities Act of 1933, as amended, covering
the first public offering of securities of the Trust shall have become
effective, this Declaration may be amended in any respect by the affirmative
vote of a majority of the Trustees or by an instrument signed by a majority of
the Trustees.
Section 9.4. Merger, Consolidation and Sale of Assets. The Trust may merge
or consolidate with any other corporation, association, trust or other
organization or may sell, lease or exchange all or substantially all of the
Trust Property (or all or substantially all of the Trust Property allocated or
belonging to a particular series of the Trust) including its good will, upon
such terms and conditions and for such consideration when and as authorized at
any meeting of Shareholders called for such purpose by the vote of the holders
of two-thirds of the outstanding shares of all series of the Trust voting as a
single class, or of the affected series of the Trust, as the case may be, or by
an instrument or instruments in writing without a meeting, consented to by the
vote of the holders of two-thirds of the outstanding Shares of all series of the
Trust voting as a single class, or of the affected series of the Trust, as the
case may be; provided, however, that if such merger, consolidation, sale, lease
or exchange is recommended by the Trustees, the vote or written consent by
Majority Shareholder Vote shall be sufficient authorization; and any such
merger, consolidation, sale, lease or exchange shall be deemed for all purposes
to have been accomplished under and pursuant to the statutes of the Commonwealth
of Massachusetts. Nothing contained herein shall be construed as requiring
approval of Shareholders for any sale of assets in the ordinary course of the
business of the Trust.
Section 9.5. Incorporation, Reorganization. With the approval of the
holders of a majority of the Shares outstanding and entitled to vote, the
Trustees may cause to be organized or assist in organizing a corporation or
corporations under the laws of any jurisdiction, or any other trust, unit
investment trust, partnership, association or other organization to take over
all of the Trust Property or to carry on any business in which the Trust shall
directly or indirectly have any interest, and to sell, convey and transfer the
Trust Property to any such corporation, trust, partnership, association or
organization in exchange for the shares or securities thereof or otherwise, and
to lend money to, subscribe for the shares or securities of, and enter into any
contracts with any such corporation, trust, partnership, association or
organization in which the Trust holds or is about to acquire shares or any other
interest. Subject to Section 9.4 hereof, the Trustees may also cause a merger or
consolidation between the Trust or any successor thereto and any such
corporation, trust, partnership, association or other organization if and to the
extent permitted by law. Nothing contained in this Section 9.5 shall be
construed as requiring approval of Shareholders for the Trustees to organize or
assist in organizing one or more corporations, trusts, partnerships,
associations or other organizations and selling, conveying or transferring a
portion of the Trust Property to such organization or entities.
Section 9.6. Incorporation or Reorganization of Series. With the approval
of a Majority Shareholder Vote of any series, the Trustees may sell, lease or
exchange all of the Trust Property allocated or belonging to that series, or
cause to be organized or assist in organizing a corporation or corporations
under the laws of any other jurisdiction, or any other trust, unit investment
trust, partnership, association or other organization, to take over all of the
Trust Property allocated or belonging to that series and to sell, convey and
transfer such Trust Property to any such corporation, trust, unit investment
trust, partnership, association, or other organization in exchange for the
shares or securities thereof or otherwise.
ARTICLE X
REPORTS TO SHAREHOLDERS AND SHAREHOLDER COMMUNICATIONS
The Trustees shall at least semi-annually submit to the Shareholders a
written financial report of the transactions of the Trust, including financial
statements which shall at least annually be certified by independent public
accountants.
Whenever 10 or more Shareholders of record who have been such for at least
six months preceding the date of application, and who hold in the aggregate
either Shares having a net asset value of at least $25,000 or at least 1% of the
Shares outstanding, whichever is less, shall apply to the Trustees in writing,
stating that they wish to communicate with other Shareholders with a view to
obtaining signatures to a request for a meeting of Shareholders for the purpose
of removing one or more Trustees pursuant to Section 2.2 hereof and accompany
such application with a form of communication and request which they wish to
transmit, the Trustees shall within five business days after receipt of such
application either (a) afford to such applicants access to a list of the names
and addresses of all Shareholders as recorded on the books of the Trust; or (b)
inform such applicants as to the approximate number of Shareholders of record,
and the approximate cost of mailing to them the proposed communication and form
of request. If the Trustees elect to follow the course specified in (b) above,
the Trustees, upon the written request of such applicants, accompanied by a
tender of the material to be mailed and of the reasonable expenses of mailing,
shall, with reasonable promptness, mail such material to all Shareholders of
record, unless within five business days after such tender the Trustees mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement signed by at least a majority of the
Trustees to the effect that in their opinion either such material contains
untrue statements of fact or omits to state facts necessary to make the
statements contained therein not misleading, or would be in violation of
applicable law, and specifying the basis of such opinion.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Filing. This Declaration, as amended, and any subsequent
amendment hereto shall be filed in the office of the Secretary of the
Commonwealth of Massachusetts and in such other place or places as may be
required under the laws of the Commonwealth of Massachusetts and may also be
filed or recorded in such other places as the Trustees deem appropriate. Each
amendment so filed shall be accompanied by a certificate signed and acknowledged
by a Trustee stating that such action was duly taken in a manner provided
herein, and unless such amendment or such certificate sets forth some later time
for the effectiveness of such amendment, such amendment shall be effective upon
its filing. A restated Declaration, integrating into a single instrument all of
the provisions of the Declaration which are then in effect and operative, may be
executed from time to time by a majority of the Trustees and shall, upon filing
with the Secretary of the Commonwealth of Massachusetts, be conclusive evidence
of all amendments contained therein and may thereafter be referred to in lieu of
this original Declaration and the various amendments thereto.
Section 11.2. Governing Law. This Declaration is executed by the Trustees
and delivered in the Commonwealth of Massachusetts and with reference to the
laws thereof, and the rights of all parties and the validity and construction of
every provision hereof shall be subject to and construed according to the laws
of said Commonwealth.
Section 11.3. Counterparts. This Declaration may be simultaneously executed
in several counterparts, each of which shall be deemed to be an original, and
such counterparts, together, shall constitute one and the same instrument, which
shall be sufficiently evidenced by any such original counterpart.
Section 11.4. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust appears to be a Trustee
hereunder, certifying to: (i) the number or identity of Trustees or
Shareholders, (ii) the due authorization of the execution of any instrument or
writing, (iii) the form of any vote passed at a meeting of Trustees or
Shareholders, (iv) the fact that the number of Trustees or Shareholders present
at any meeting or executing any written instrument satisfies the requirements of
this Declaration, (v) the form of any By-Laws adopted by or the identity of any
officers elected by the Trustees, or (vi) the existence of any fact or facts
which in any manner relate to the affairs of the Trust, shall be conclusive
evidence as to the matters so certified in favor of any Person dealing with the
Trustees and their successors.
Section 11.5. Provisions in Conflict with Law or Regulations. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company provisions of the
Internal Revenue Code of 1954, as amended, or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have constituted
a part of this Declaration; provided however, that such determination shall not
affect any of the remaining provisions of this Declaration or render invalid or
improper any action taken or omitted prior to such determination.
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of the
Declaration in any jurisdiction.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this instrument this
21st day of June, 1985.
/s/Richard B. Bailey
----------------------
Richard B. Bailey
as Trustee
and not individually
200 Berkeley Street
Boston, Massachusetts
/s/A. Keith Brodkin
----------------------
A. Keith Brodkin
as Trustee
and not individually
200 Berkeley Street
Boston, Massachusetts
/s/Philip W. Coolidge
----------------------
Philip W. Coolidge
as Trustee
and not individually
200 Berkeley Street
Boston, Massachusetts
/s/Stephen G. Moorhead
----------------------
Stephen G. Moorhead
as Trustee
and not individually
200 Berkeley Street
Boston, Massachusetts
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS.
June 21, 1985
Then personally appeared the above-named Richard B. Bailey, A. Keith
Brodkin, Philip W. Coolidge and Stephen G. Moorhead, who severally acknowledged
the foregoing instrument to be their free act and deed.
Before me,
/s/Patricia C. Howe
---------------------
Notary Public
My commission expires: 6/8/90
<PAGE>
June 21, l985
Corporations Division
Office of the Secretary
of the Commonwealth
One Ashburton Place
Boston, Massachusetts 02108
Gentlemen:
The Landmark Funds Tax Free Reserves, Inc., a corporation organized under
the laws of the State of Maryland, hereby consents to the use of the name, The
Landmark Funds Tax Free Reserves, by a Massachusetts business trust to be
organized with that name.
Very truly yours,
THE LANDMARK FUNDS
TAX FREE RESERVES, INC.
BY: /s/Philip Coolidge
------------------------
Assistant Secretary
<PAGE>
EXHIBIT NO. 1(B)
CERTIFICATE OF AMENDMENT
TO
DECLARATION OF TRUST
OF
THE LANDMARK FUNDS TAX FREE RESERVES
The undersigned, being a majority of the Trustees of The Landmark Funds Tax
Free Reserves (the "Trust"), a Massachusetts business trust created under a
Declaration of Trust dated June 21, 1985 (the "Declaration"), do hereby certify
that, by vote of the sole shareholder of the Trust and by vote of a majority of
the Trustees pursuant to section 9.3(a) of the Declaration, section 6.8 of the
Declaration was duly amended by adding the following immediately prior to the
final sentence thereof:
"At any meeting of shareholders of the Trust or of any series of the Trust,
a Shareholder Servicing Agent may vote any shares as to which such
Shareholder Servicing Agent is the agent of record and which are not
otherwise represented in person or by proxy at the meeting, proportionately
in accordance with the votes cast by holders of all shares otherwise
represented at the meeting in person or by proxy as to which such
Shareholder Servicing Agent is the agent of record. Any shares so voted by
a Shareholder Servicing Agent will be deemed represented at the meeting for
quorum purposes."
IN WITNESS WHEREOF, the undersigned Trustees of the Trust have set their
hands as of the l9th day of August, 1985.
/s/Richard B. Bailey
----------------------
Richard B. Bailey
/s/A. Keith Brodkin
----------------------
A. Keith Brodkin
/s/Philip W. Coolidge
----------------------
Philip W. Coolidge
/s/Stephen G. Moorhead
----------------------
Stephen G. Moorhead
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS.
August 19, 1985
Then personally appeared the above-named Richard B. Bailey, A. Keith
Brodkin, Philip W. Coolidge and Stephen G. Moorhead, who severally acknowledged
the foregoing instrument to be their free act and deed.
Before me,
/s/Patricia C. Howe
-----------------------
Notary Public
My commission expires: 6/8/90
<PAGE>
THE LANDMARK FUNDS TAX FREE RESERVES
CERTIFICATION OF AMENDMENT
TO DECLARATION OF TRUST
The undersigned, constituting a majority of the Trustees of The Landmark
Funds Tax Free Reserves (the "Trust"), a business trust organized under the laws
of the Commonwealth of Massachusetts pursuant to a Declaration of Trust, dated
June 21, 1985 (the "Declaration"), do hereby certify, as provided by the
provisions of Section 9.3 (c) of the Declaration, that in accordance with the
provisions of the last sentence of Section 9.3(a), a majority of the Trustees of
the Trust, by vote duly adopted by a majority of the Trustees on August 21,
1986, amended the Declaration effective September 8, 1986 as follows:
Section 1.1 is amended to read in its entirety:
"Section 1.1 Name. The name of the trust created hereby is the 'Landmark
Tax Free Reserves'".
IN WITNESS WHEREOF, the undersigned have executed this certificate this
21st day of August, 1986.
/s/H.B. Alvord /s/Samuel A. Groves
- -------------------- ----------------------
H.B. ALVORD SAMUEL A. GROVES
/s/Richard B. Bailey /s/William B. Moses, Jr.
- -------------------- ----------------------
RICHARD B. BAILEY WILLIAM B. MOSES, JR.
/s/Elliott J. Berv /s/Walter E. Robb, III
- -------------------- ----------------------
ELLIOTT J. BERV WALTER E. ROBB, III
/s/A. Keith Brodkin /s/William S. Woods, Jr.
- -------------------- ----------------------
A. KEITH BRODKIN WILLIAM S. WOODS, JR.
/s/Riley C. Gilley
- --------------------
RILEY C. GILLEY
<PAGE>
LANDMARK TAX FREE RESERVES
CERTIFICATE OF AMENDMENT
TO DECLARATION OF TRUST
The undersigned, constituting a majority of the Trustees of Landmark Tax
Free Reserves (the "Trust"), a business trust organized under the laws of the
Commonwealth of Massachusetts, pursuant to a Declaration of Trust dated June 21,
1985, as amended (the "Declaration"), do hereby certify, as provided by Section
9.3(d) of the Declaration, that, in accordance with the provisions of Section
9.3(a) of the Declaration, a majority of the Shareholders of the Trust, by vote
duly adopted on February 23, 1989, amended the Declaration as follows:
Section 6.9 of the Declaration is amended by adding the following paragraph (i)
immediately following paragraph (h) thereof:
"(i) Notwithstanding anything in this Declaration to the contrary, the Trustees
may, in their discretion, authorize the division of Shares of any series
into Shares of one or more classes or subseries of such series. All Shares
of a class or a subseries shall be identical with each other and with the
shares of each other class or subseries of the same series except for such
variations between classes or subseries as may be approved by the Board of
Trustees and be permitted under the 1940 Act or pursuant to any exemptive
order issued by the Securities and Exchange Commission.
IN WITNESS WHEREOF, the undersigned have executed this certificate as of
the 16th day of January, 1992.
/s/ H.B. Alvord /s/ C. Oscar Morong, Jr.
- ----------------------- ------------------------
H.B. ALVORD C. OSCAR MORONG, JR.
/s/ Philip W. Coolidge /s/ E. Kirby Warren
- ----------------------- ------------------------
PHILIP W. COOLIDGE E. KIRBY WARREN
<PAGE>
LANDMARK TAX FREE RESERVES
Certificate of Amendment
to Declaration of Trust
The undersigned, constituting a majority of the Trustees of Landmark
Tax Free Reserves (the "Trust"), a business trust organized under the laws of
the Commonwealth of Massachusetts pursuant to a Declaration of Trust, dated June
21, 1985, as amended (the "Declaration"), do hereby certify, as provided by the
provisions of Section 9.3(d) of the Declaration, that in accordance with the
provisions of the second sentence of Section 9.3(a), a majority of the Trustees
of the Trust, by vote duly adopted by a majority of the Trustees, amended the
Declaration effective February 10, 1995 as follows:
Section 6.5 is amended to read in its entirety:
Section 6.5 Register of Shares. A register or registers shall be kept
at the principal office of the Trust or at an office of the Transfer Agent or,
upon the vote of a majority of the Trustees of the Trust, at an office of any
one or more Shareholder Servicing Agents, which register or registers, taken
together, shall contain the names and addresses of the Shareholders and the
number of Shares held by them respectively and a record of all transfers
thereof. Such register or registers shall be conclusive as to who are the
holders of the Shares and who shall be entitled to receive dividends or
distributions or otherwise to exercise or enjoy the rights of Shareholders.
Unless the Trustees have authorized a Shareholder Servicing Agent to keep a
register of Shares, that Shareholder Servicing Agent shall be the holder of
record of all outstanding Shares shown on the records of the Transfer Agent as
being held by such Shareholder Servicing Agent. No Shareholder shall be entitled
to receive payment of any dividend or distribution, nor to have notice given to
him as herein or in the By-Laws provided, until he has given his address to the
Transfer Agent or such other officer or agent of the Trustees as shall keep the
said register for entry thereon, or, if the Trustees have authorized a
Shareholder Servicing Agent to keep the register for the Shares of such
Shareholder, such Shareholder Servicing Agent (as used in this Declaration, such
Shareholder's "agent of record"). It is not contemplated that certificates will
be issued for the Shares; however, the Trustees, in their discretion, may
authorize the issuance of Share certificates and promulgate appropriate rules
and regulations as to their use.
IN WITNESS WHEREOF, the undersigned have executed this certificate on
separate counterparts this 10th day of February, 1995.
/s/ H. B. Alvord
-------------------------
H. B. Alvord
/s/ Philip W. Coolidge
-------------------------
Philip W. Coolidge
/s/ C. Oscar Morong, Jr.
-------------------------
C. Oscar Morong, Jr.
/s/ E. Kirby Warren
-------------------------
E. Kirby Warren
<PAGE>
EXHIBIT NO. 2(A)
AMENDED AND RESTATED
BY-LAWS
OF
LANDMARK TAX FREE RESERVES
(AMENDED AND RESTATED AS OF JULY 18, 1991)
ARTICLE I
DEFINITIONS
The terms Commission", Declaration", "Distributor", "Investment Adviser",
"Majority Shareholder Vote", "1940 Act", "Shareholder", "Shares", "Transfer
Agent", "Trust", "Trust Property" and "Trustees" have the respective meanings
given them in the Declaration of Trust of Landmark Tax Free Reserves, as amended
and restated as of March 14, 1990 and dated June 21, 1985, as amended from time
to time.
ARTICLE II
OFFICES
Section 1. Principal Office. Until changed by the Trustees, the principal
office of the Trust in the Commonwealth of Massachusetts shall be in the City of
Boston, County of Suffolk.
Section 2. Other Offices. The Trust may have offices in such other places
without as well as within the Commonwealth of Massachusetts as the Trustees may
from time to time determine.
ARTICLE III
SHAREHOLDERS
Section 1. Meetings. Meetings of Shareholders may be called at any time by
a majority of the Trustees and shall be called by any Trustee upon written
request, which shall specify the purpose or purposes for which such meeting is
to be called, of Shareholders holding in the aggregate not less than 10% of the
outstanding Shares entitled to vote on the matters specified in such written
request. Any such meeting shall be held within or without the Commonwealth of
Massachusetts on such day and at such time as the Trustees shall designate. The
holders of a majority of outstanding Shares entitled to vote present in person
or by proxy shall constitute a quorum at any meeting of Shareholders, except
that where any provision of law, the Declaration or these By-Laws permit or
require that holders of any series shall vote as a series, then a majority of
the aggregate number of Shares of that series entitled to vote shall be
necessary to constitute a quorum for the transaction of business by that series.
In the absence of a quorum, a majority of outstanding Shares entitled to vote
present in person or by proxy may adjourn the meeting from time to time until a
quorum shall be present.
Whenever a matter is required to be voted by Shareholders of the Trust in
the aggregate under Section 6.8 and Section 6.9(g) of the Declaration, the Trust
may either hold a meeting of Shareholders of all series, as defined in Section
6.9 of the Declaration, to vote on such matter, or hold separate meetings for
Shareholders of each of the individual series to vote on such matter, provided
that (i) such separate meetings shall be held within one year of each other,
(ii) a quorum consisting of the holders of the majority of outstanding Shares of
the individual series entitled to vote present in person or by proxy shall be
present at each such separate meeting and (iii) a quorum consisting of the
holders of the majority of all Shares of the Trust entitled to vote present in
person or by proxy shall be present in the aggregate at such separate meetings,
and the votes of Shareholders at all such separate meetings shall be aggregated
in order to determine if sufficient votes have been cast for such matter to be
voted.
Section 2. Notice of Meetings. Notice of all meetings of Shareholders,
stating the time, place and purposes of the meeting, shall be given by the
Trustees by mail to each Shareholder entitled to vote at such meeting at his
address as recorded on the register of the Trust, mailed at least 10 days and
not more than 60 days before the meeting. Only the business stated in the notice
of the meeting shall be considered at such meeting. Any adjourned meeting may be
held as adjourned without further notice. No notice need by given to any
Shareholder who shall have failed to inform the Trust of his current address or
if a written waiver of notice , executed before or after the meeting by the
Shareholder or his attorney thereunto authorized, is filed with the records of
the meeting. Where separate meetings are held for Shareholders of each of the
individual series to vote on a matter required to be voted on by Shareholders of
the Trust in the aggregate, as provided in Article III, Section 1 above, notice
of each such separate meeting shall be provided in the manner described above in
this Section 2.
Section 3. Record Date. For the purpose of determining the Shareholders who
are entitled to notice of and to vote at any meeting, or to participate in any
distribution, or for the purpose of any other action, the Trustees may from time
to time close the transfer books for such period, not exceeding 30 days, as the
Trustees may determine; or without closing the transfer books the Trustees may
fix a date not more than 60 days prior to the date of any meeting of
Shareholders or distribution or other action as a record date for the
determination of the persons to be treated as Shareholders of record for such
purpose. Where separate meetings are held for Shareholders of each of the
individual series to vote on a matter required to be voted on by Shareholders of
the Trust in the aggregate, as provided in Article III, Section 1 above, the
record date of each such separate meeting shall be determined in the manner
described above in this Section 3.
Section 4. Proxies. At any meeting of Shareholders, any holder of Shares
entitled to vote thereat may vote by proxy, provided that no proxy shall be
voted at any meeting unless it shall have been placed on file with the
Secretary, or with such other officer or agent of the Trust as the Secretary may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a vote of a majority of the Trustees, proxies may be solicited in
the name of one or more Trustees or one or more of the officers of the Trust.
Only Shareholders of record shall be entitled to vote. Each full Share shall be
entitled to one vote and fractional Shares shall be entitled to a vote of such
fraction. When any Share is held jointly by several persons, any one of them may
vote at any meeting in person or by proxy in respect of such Share, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Share. A proxy
purporting to be executed by or on behalf of a Shareholder shall be deemed valid
unless challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. If the holder of any such Share is a
minor or a person of unsound mind, and subject to guardianship or to the legal
control of any other person as regards the charge or management of such Share,
such Share may be voted by such guardian or such other person appointed or
having such control, and such vote may be given in person or by proxy.
Section 5. Inspection of Records. The records of the Trust shall be open to
inspection by Shareholders to the same extent as is permitted shareholders of a
Massachusetts business corporation.
Section 6. Action without Meeting. Any action which may be taken by
Shareholders may be taken without a meeting if a majority of Shareholders
entitled to vote on the matter (or such larger proportion thereof as shall be
required by law, the Declaration or these By-Laws for approval of such matter)
consent to the action in writing and the written consents are filed with the
records of the meetings of Shareholders. Such consent shall be treated for all
purposes as a vote taken at a meeting of Shareholders.
ARTICLE IV
TRUSTEES
Section 1. Meetings of the Trustees. The Trustees may in their discretion
provide for regular or stated meetings of the Trustees. Notice of regular or
stated meetings need not be given. Meetings of the Trustees other than regular
or stated meetings shall be held whenever called by the Chairman or by any
Trustee. Notice of the time and place of each meeting other than regular or
stated meetings shall be given by the Secretary or an Assistant Secretary or by
the officer or Trustee calling the meeting and shall be mailed to each Trustee
at least two days before the meeting, or shall be telegraphed or cabled to each
Trustee at his business address, or personally delivered to him at least one day
before the meeting. Such notice may, however, be waived by any Trustee. Notice
of a meeting need not be given to any Trustee if a written waiver of notice,
executed by him before or after the meeting, is filed with the records of the
meeting, or to any Trustee who attends the meeting without protesting prior
thereto or at its commencement the lack of notice to him. A notice or waiver of
notice need not specify the purpose of any meeting. The Trustees may meet by
means of a telephone conference circuit or similar communications equipment by
means of which all persons participating in the meeting can hear each other,
which telephone conference meeting shall be deemed to have been held at a place
designated by the Trustees at the meeting. Participation in a telephone
conference meeting shall constitute presence in person at such meeting. Any
action required or permitted to be taken at any meeting of the Trustees may be
taken by the Trustees without a meeting if all the Trustees consent to the
action in writing and the written consents are filed with the records of the
Trustees' meetings. Such consents shall be treated as a vote for all purposes.
Section 2. Quorum and Manner of Acting. A majority of the Trustees present
in person at any regular or special meeting of the Trustees shall constitute a
quorum for the transaction of business at such meeting and (except as otherwise
required by law, the Declaration or these By-Laws) the act of a majority of the
Trustees present at any such meeting, at which a quorum is present, shall be the
act of the Trustees. In the absence of a quorum, a majority of the Trustees
present may adjourn the meeting from time to time until a quorum shall be
present. Notice of an adjourned meeting need not be given.
ARTICLE V
COMMITTEES AND ADVISORY BOARD
Section 1. Executive and Other Committees. The Trustees by vote of a
majority of all the Trustees may elect from their own number an Executive
Committee to consist of not less than three Trustees to hold office at the
pleasure of the Trustees. While the Trustees are not in session, the Executive
Committee shall have the power to conduct the current and ordinary business of
the Trust, including the purchase and sale of securities and the designation of
securities to be delivered upon redemption of Shares of the Trust, and such
other powers of the Trustees as the Trustees may, from time to time, delegate to
the Executive Committee except those powers which by law, the Declaration or
these By-Laws the Trustees are prohibited from so delegating. The Trustees may
also elect from their own number other Committees from time to time, the number
composing such Committees, the powers conferred upon the same (subject to the
same limitations as with respect to the Executive Committee) and the term of
membership on such Committees to be determined by the Trustees. The Trustees may
designate a chairman of any such Committee. In the absence of such designation a
Committee may elect its own chairman.
Section 2. Meeting, Quorum and Manner of Acting. The Trustees may (i)
provide for stated meetings of any Committee, (ii) specify the manner of calling
and notice required for special meetings of any Committee, (iii) specify the
number of members of a Committee required to constitute a quorum and the number
of members of a Committee required to exercise specified powers delegated to
such Committee, (iv) authorize the making of decisions to exercise specified
powers by written assent of the requisite number of members of a Committee
without a meeting, and (v) authorize the members of a Committee to meet by means
of a telephone conference circuit.
Each Committee shall keep regular minutes of its meetings and records of
decisions taken without a meeting and cause them to be recorded in a book
designated for that purpose and kept in the office of the Trust.
Section 3. Advisory Board. The Trustees may appoint an Advisory Board to
consist in the first instance of not less than three members. Members of such
Advisory Board shall not be Trustees or officers and need not be Shareholders. A
member of such Advisory Board shall hold office for such period as the Trustees
may by vote provide and may resign therefrom by a written instrument signed by
him which shall take effect upon its delivery to the Trustees. The Advisory
Board shall have no legal powers and shall not perform the functions of Trustees
in any manner, such Advisory Board being intended merely to act in an advisory
capacity. Such Advisory Board shall meet at such times and upon such notice as
the Trustees may be resolution provide.
Section 4. Chairman. The Trustees may, by a majority vote of all the
Trustees, elect from their own number a Chairman, to hold office until his
successor shall have been duly elected and qualified. The Chairman shall not
hold any other office. The Chairman may be, but need not be, a shareholder. The
Chairman shall preside at all meetings of the Trustees and shall have such other
duties as may be assigned to him from time to time by the Trustees.
ARTICLE VI
OFFICERS
Section 1. General Provisions. The officers of the Trust shall be
President, a Treasurer and a Secretary, and shall be elected by the Trustees.
The Trustees may elect or appoint such other officers or agents as the business
of the Trust may require, including one or more Vice Presidents, one or more
Assistant Treasurers and one or more Assistant Secretaries. The Trustees may
delegate to any officer or committee the power to appoint any subordinate
officers or agents.
Section 2. Term of Office and Qualifications. Except as otherwise provided
by law, the Declaration or these By-Laws, the President, the Treasurer and the
Secretary shall be in office until his respective successor shall have been duly
elected and qualified, and all other officers shall hold office at the pleasure
of the Trustees. The Secretary and Treasurer may be the same person. A Vice
President and the Treasurer or a Vice President and the Secretary may be the
same person, but the offices of Vice President, Secretary and Treasurer shall
not be held by the same person. The President shall not hold any other office.
Except as above provided, any two offices may be held by the same person. Any
officer may be, but none need be, a Trustee or Shareholder.
Section 3. Removal. The Trustees, at any regular or special meeting of the
Trustees, may remove any officer with or without cause by a vote of a majority
of the Trustees. Any officer or agent appointed by any officer or Committee may
be removed with or without cause by such appointing officer or Committee.
Section 4. Powers and Duties of the President. The President shall be the
principal executive officer of the Trust. Subject to the control of the Trustees
and any committee of the Trustees, the President shall at all times exercise a
general supervision and direction over the affairs of the Trust. The President
shall have the power to employ attorneys and counsel for the Trust and to employ
such subordinate officers, agents, clerks and employees as he may find necessary
to transact the business of the Trust. The President shall also have the power
to grant, issue, execute or sign such powers of attorney, proxies or other
documents as may be deemed advisable or necessary in the furtherance of the
interests of the Trust. The President shall have such other powers and duties
as, from time to time, may be conferred upon or assigned to him by the Trustees.
Section 5. Powers and Duties of Vice Presidents. In the absence or
disability of the President, the Vice President or, if there be more than one
Vice President, any Vice President designated by the Trustees shall perform all
the duties and may exercise any of the powers of the President, subject to the
control of the Trustees. Each Vice President shall perform such other duties as
may be assigned to him from time to time by the Trustees or the President.
Section 6. Powers and Duties of the Treasurer. The Treasurer shall be the
principal financial and accounting officer of the Trust. The Treasurer shall
deliver all funds of the Trust which may come into his hands to such custodian
as the Trustees may employ pursuant to Article X hereof. The Treasurer shall
render a statement of condition of the finances of the Trust to the Trustees as
often as they shall require the same and shall in general perform all the duties
incident to the office of Treasurer and such other duties as from time to time
may be assigned to him by the Trustees. The Treasurer shall give a bond for the
faithful discharge of his duties, if required to do so by the Trustees, in such
sum and with such surety or sureties as the Trustees shall require.
Section 7. Powers and Duties of the Secretary. The Secretary shall keep the
minutes of all meetings of the Shareholders in proper books provided for that
purpose; shall keep the minutes of all meetings of the Trustees; shall have
custody of the seal of the Trust; and shall have charge of the Share transfer
books, lists and records unless the same are in the charge of the Transfer
Agent. The Secretary shall attend to the giving and serving of all notices by
the Trust in accordance with the provisions of these By-Laws and as required by
law; and subject to these By-Laws, shall in general perform all duties incident
to the office of Secretary and such other duties as from time to time may be
assigned to him by the Trustees.
Section 8. Powers and Duties of Assistant Treasurers. In the absence or
disability of the Treasurer, any Assistant Treasurer designated by the Trustees
shall perform all the duties, and may exercise any of the powers, of the
Treasurer. Each Assistant Treasurer shall perform such other duties as from time
to time may be assigned to him by the Trustees. Each Assistant Treasurer shall
give a bond for the faithful discharge of his duties, if required to do so by
the Trustees, in such sum and with such surety or sureties as the Trustees shall
require.
Section 9. Powers and Duties of Assistant Secretaries. In the absence or
disability of the Secretary, any Assistant Secretary designated by the Trustees
shall perform all of the duties, and may exercise any of the powers, of the
Secretary. Each Assistant Secretary shall perform such other duties as from time
to time may be assigned to him by the Trustees.
Section 10. Compensation of Officers and Trustees and Members of the
Advisory Board. Subject to any applicable law or provision of the Declaration,
the compensation of the officers and Trustees and members of the Advisory Board
shall be fixed from time to time by the Trustees or, in the case of officers, by
any committee of officers upon whom such power may be conferred by the Trustees.
No officer shall be prevented from receiving such compensation as such officer
by reason of the fact that he is also a Trustee.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Trust shall begin on the first day of September in
each year and shall end on the last day of August in the succeeding year,
provided, however, that the Trustees may from time to time change the fiscal
year.
ARTICLE VIII
SEAL
The Trustees shall adopt a seal which shall be in such form and shall have
such inscription thereon as the Trustees may from time to time prescribe.
ARTICLE IX
WAIVERS OF NOTICE
Whenever any notice is required to be given by law, the Declaration or
these By-Laws, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. A notice shall be deemed to have been telegraphed
or cabled for the purposes of these By-Laws when it has been delivered to a
representative of any telegraph or cable company with instruction that it be
telegraphed or cabled. Any notice shall be deemed to be given at the time when
the same shall be mailed, telegraphed or cabled.
ARTICLE X
CUSTODIAN
Section 1. Appointment and Duties. The Trustees shall at all times employ a
bank or trust company having a capital, surplus and undivided profits of at
least $5,000,000 as custodian with authority as its agent, but subject to such
restrictions, limitations and other requirements, if any, as may be contained in
the Declaration, these By-Laws and the 1940 Act:
(i) to hold the securities owned by the Trust and deliver the same upon
written order;
(ii) to receive and receipt for any monies due to the Trust and deposit
the same in its own banking department or elsewhere as the Trustees
may direct;
(iii) to disburse such funds upon orders or vouchers;
(iv) if authorized by the Trustees, to keep the books and accounts of the
Trust and furnish clerical and accounting services; and
(v) if authorized to do so by the Trustees, to compute the net income of
the Trust;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian.
The Trustees may also authorize the custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of the
custodian and upon such terms and conditions as may be agreed upon between the
custodian and such sub-custodian and approved by the Trustees, provided that in
every case such sub-custodian shall be a bank or trust company organized under
the laws of the United States or one of the states thereof and having capital,
surplus and undivided profits of at least $5,000,000.
Section 2. Central Certificate System. Subject to such rules, regulations
and orders as the Commission may adopt, the Trustees may direct the custodian to
deposit all or any part of the securities owned by the Trust in a system for the
central handling of securities established by a national securities exchange or
a national securities association registered with the Commission under the
Securities Exchange Act of 1934, or such other person as may be permitted by the
Commission, or otherwise in accordance with the 1940 Act, pursuant to which
system all securities of any particular class or series of any issuer deposited
within the system are treated as fungible and may be transferred or pledged by
bookkeeping entry without physical delivery of such securities, provided that
all such deposits shall be subject to withdrawal only upon the order of the
Trust or its custodian.
Section 3. Acceptance of Receipts in Lieu of Certificates. Subject to such
rules, regulations and orders as the Commission may adopt, the Trustees may
direct the custodian to accept written receipts or other written evidences
indicating purchases of securities held in book-entry form in the Federal
Reserve System in accordance with regulations promulgated by the Board of
Governors of the Federal Reserve System and the local Federal Reserve Banks in
lieu of receipt of certificates representing such securities.
Section 4. Provisions of Custodian Contract. The following provisions shall
apply to the employment of a custodian pursuant to this Article X and to any
contract entered into with the custodian so employed:
(a) The Trustees shall cause to be delivered to the custodian all
securities owned by the Trust or to which it may become entitled, and
shall order the same to be delivered by the custodian only upon
completion of a sale, exchange, transfer, pledge, or other disposition
thereof, and upon receipt by the custodian of the consideration
therefor or a certificate of deposit or a receipt of an issuer or of
its Transfer Agent, all as the Trustees may generally or from time to
time require or approve, or to a successor custodian; and the Trustees
shall cause all funds owned by the Trust or to which it may become
entitled to be paid to the custodian, and shall order the same
disbursed only for investment against delivery of the securities
acquired, or in payment of expenses, including management compensation,
and liabilities of the Trust, including distributions to Shareholders,
or to a successor custodian; provided, however, that nothing herein
shall prevent delivery of securities for examination to the broker
purchasing the same in accord with the "street delivery" custom whereby
such securities are delivered to such broker in exchange for a delivery
receipt exchanged on the same day for an uncertified check of such
broker to be presented on the same day for certification.
(b) In case of the resignation, removal or inability to serve of any such
custodian, the Trust shall promptly appoint another bank or trust
company meeting the requirements of this Article X as successor
custodian. The agreement with the custodian shall provide that the
retiring custodian shall, upon receipt of notice of such appointment,
deliver all Trust Property in its possession to and only to such
successor, and that pending appointment of a successor custodian, or a
vote of the Shareholders to function without a custodian, the custodian
shall not deliver any Trust Property to the Trust, but may deliver all
or any part of the Trust Property to a bank or trust company doing
business in Boston, Massachusetts, of its own selection, having an
aggregate capital, surplus and undivided profits (as shown in its last
published report) of at least $5,000,000; provided that arrangements
are made for the Trust Property to be held under terms similar to those
on which they were held by the retiring custodian.
ARTICLE XI
AMENDMENTS
These By-Laws, or any of them, may be altered, amended or repealed, or new
By-Laws may be adopted (a) by Majority Shareholder Vote, or (b) by the Trustees,
provided, however, that no By-Law may be amended, adopted or repealed by the
Trustees if such amendment, adoption or repeal requires, pursuant to law, the
Declaration or these By-Laws, a vote of the Shareholders.
<PAGE>
EXHIBIT NO. 2(B)
Article III, Section 3 of the By-Laws has been amended to read in its
entirety as follows:
"Section 3. Record Date. The Trustees may fix a date not more
than 60 days prior to the date of any meeting of Shareholders
or distribution or other action as a record date for the
purpose of determining the Shareholders who are entitled to
notice of and to vote at such meeting or any adjournment
thereof or to participate in such distribution or for the
purpose of such other action; or without fixing such record
date the Trustees may for any of such purposes from time to
time close the transfer books for such period, not exceeding
30 days as the Trustees may determine. Where separate meetings
are held for Shareholders of each of the individual series to
vote on a matter required to be voted on by Shareholders of
the Trust in the aggregate, as provided in Article III,
Section 1 above, the record date of each such separate
meeting, for purposes of determining the Shareholders who are
entitled to notice of and to vote at such meeting or any
adjournment thereof, shall be determined in the manner
described above in this Section 3."
<PAGE>
EXHIBIT NO. 6
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of August 20, 1985, and amended and
restated as of December 2, 1988, by and between LANDMARK TAX FREE RESERVES, a
Massachusetts business trust (the "Trust"), and THE LANDMARK FUNDS BROKER-DEALER
SERVICES, INC., a Massachusetts corporation ("LFBDS" or the "Distributor").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as an open-end investment
company registered under the Investment Company Act of 1940 (collectively with
the rules and regulations promulgated thereunder, the "1940 Act");
WHEREAS, the Board of Trustees of the Trust has adopted a Distribution
Plan, dated as of August 20, 1985 (the "Distribution Plan"), which is
incorporated herein by reference and pursuant to which the Trust desires to
enter into this Distribution Agreement; and
WHEREAS, the Trust wishes to engage LFBDS to provide certain services
with respect to the distribution of shares, and LFBDS is willing to provide such
services to the Trust on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. The Trust grants to the Distributor the right, as agent of the
Trust, to sell Shares of Beneficial Interest (without par value) of the
Trust (the "Shares") upon the terms hereinbelow set forth during the
term of this Agreement. While this Agreement is in force, the
Distributor agrees to use its best efforts to find purchasers for
Shares.
The Distributor shall have the right, as agent of the Trust,
to order from the Trust the Shares needed, but not more than the Shares
needed (except for clerical errors and errors of transmission), to fill
unconditional orders for Shares placed with the Distributor by any
dealer, all such orders to be made in the manner set forth in the
Trust's then-current prospectus (the "Prospectus") and then-current
statement of additional information (the "Statement of Additional
Information") relating to such Shares. The price which shall be paid to
the Trust for the Shares so purchased shall be the net asset value per
Share as determined in accordance with the provisions of the Trust's
Declaration of Trust and By-Laws, as each may from time to time be
amended (collectively, the "Governing Instruments"). The Distributor
shall notify the Custodian of the Trust (currently State Street Bank
and Trust Company), at the end of each business day, or as soon
thereafter as the orders placed with the Distributor have been
compiled, of the number of Shares and the prices thereof which have
been ordered through the Distributor since 12:00 noon on the previous
business day.
The right granted to the Distributor to place orders for
Shares with the Trust shall be exclusive, except that this exclusive
right shall not apply to Shares issued in the event that an investment
company (whether a regulated or private investment company or a
personal holding company) is merged with and into or consolidated with
the Trust or in the event that the Trust acquires, by purchase or
otherwise, all (or substantially all) the assets or the outstanding
shares of any such company; nor shall it apply to Shares issued by the
Trust as a dividend or stock split. The exclusive right to place orders
for Shares granted to the Distributor may be waived by the Distributor
by notice to the Trust in writing, either unconditionally or subject to
such conditions and limitations as may be set forth in such notice to
the Trust. The Trust hereby acknowledges that the Distributor may
render distribution and other services to other parties, including
other investment companies. In connection with its duties hereunder,
the Distributor shall also arrange for computation of performance
statistics with respect to the Trust and arrange for publication of
current price information in newspapers and other publications.
2. The Shares may be sold by the Distributor on behalf of the
Trust to or through any dealer having a sales agreement with the
Distributor upon the following terms and conditions:
The public offering price of Shares, i.e., the price per Share
at which the Distributor or dealer purchasing Shares through the
Distributor may sell shares to the public, shall be the net asset value
of such Shares.
The net asset value of Shares shall be determined by the
Trust, or by an agent of the Trust, as of 12:00 noon on each day on
which the New York Stock Exchange is open for trading (and on such
other days as the Trustees deem necessary in order to comply with Rule
22c-1 under the 1940 Act), in accordance with the method established
pursuant to the Governing Instruments. The Trust shall have the right
to suspend the sale of Shares if, because of some extraordinary
condition, the New York Stock Exchange shall be closed, or if
conditions existing during the hours when the Exchange is open render
such action advisable or for any other reason deemed adequate by the
Trust.
3. The Trust agrees that it will, from time to time, but subject
to the necessary approval, if any, of its shareholders, take all
necessary action to register such number of Shares under the Securities
Act of 1933, as amended (the "1933 Act"), as the Distributor may
reasonably be expected to sell.
The Distributor shall be an independent contractor and neither
the Distributor nor any of its Directors, officers or employees as
such, is or shall be an employee of the Trust. It is understood that
Trustees, officers and shareholders of the Trust are or may become
interested in the Distributor, as Directors, officers, employees, or
otherwise and that Directors, officers and employees of the Distributor
are or may become similarly interested in the Trust and that the
Distributor may be or become interested in the Trust as a shareholder
or otherwise. The Distributor is responsible for its own conduct and
the employment, control and conduct (but only with respect to the
duties and obligations of the Distributor hereunder) of its agents and
employees and for any injury to any of such agents or employees or to
others through its agents or employees. The Distributor assumes full
responsibility for its agents and employees under applicable statutes
and agrees to pay all employer taxes thereunder.
4. The Distributor covenants and agrees that, in selling Shares,
it will use its best efforts in all respects duly to conform with the
requirements of all state and federal laws and the Rules of Fair
Practice of the National Association of Securities Dealers, Inc.
relating to the sale of Shares, and will indemnify and hold harmless
the Trust and each of its Trustees and officers and each person, if
any, who controls the Trust within the meaning of Section 15 of the Act
(the "Indemnified Parties") against all losses, liabilities, damages or
expenses (including the reasonable cost of investigating or defending
any alleged loss, liability, damages, claim or expense and reasonable
counsel fees incurred in connection therewith) arising from any claim,
demand, action or suit (collectively, "Claims"), arising by reason of
any persons acquiring any of the Shares through the Distributor, which
may be based upon the 1933 Act or any other statute or common law, on
account of any wrongful act of the Distributor or any of its employees
(including any failure to conform with any requirement of any state or
federal law or the Rules of Fair Practice of the National Association
of Securities Dealers, Inc. relating to the sale of Shares) or on the
ground that the registration statement under the 1933 Act, including
all amendments thereto (the "Registration Statement"), or Prospectus or
previous prospectus or Statement of Additional Information or previous
statement of additional information, includes or included an untrue
statement of a material fact or omits or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, if and only if any such act,
statement or omission was made in reliance upon information furnished
by the Distributor to the Trust; provided, however, that in no case (i)
is the indemnity of the Distributor in favor of any Indemnified Party
to be deemed to protect any such Indemnified Party against liability to
which such Indemnified Party would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance
of its or his duties or by reason of its or his reckless disregard of
its or his obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under its indemnity agreement contained in
this Section 4 with respect to any Claim made against any Indemnified
Party unless such Indemnified Party shall have notified the Distributor
in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the Claim shall have
been served upon such Indemnified Party (or after such Indemnified
Party shall have received notice of such service on any designated
agent), but failure to notify the Distributor of any such Claim shall
not relieve it from any liability which it may have to any Indemnified
Party otherwise than on account of its indemnity agreement contained in
this Section 4. The Distributor shall be entitled to participate, at
its own expense, in the defense, or, if it so elects, to assume the
defense, of any suit brought to enforce any such Claim, and, if the
Distributor elects to assume the defense, such defense shall be
conducted by counsel chosen by it and satisfactory to each Indemnified
Party. In the event that the Distributor elects to assume the defense
of any such suit and retain such counsel, each Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it
but, in case the Distributor does not elect to assume the defense of
any such suit, it shall reimburse the Indemnified Parties for the
reasonable fees and expenses of any counsel retained by them. Except
with the prior written consent of the Distributor, no Indemnified Party
shall confess any Claim or make any compromise in any case in which the
Distributor will be asked to indemnify such Indemnified Party. The
Distributor agrees promptly to notify the Trust of the commencement of
any litigation or proceeding against it in connection with the issuance
and sale of any of the Shares.
Neither the Distributor nor any dealer nor any other person is
authorized to give any information or to make any representation on
behalf of the Trust, other than those contained in the Registration
Statement or Prospectus or Statement of Additional Information.
5. The Trust will pay, or cause to be paid -
(i) all costs and expenses of the Trust, including fees and
disbursements of its counsel, in connection with the
preparation and filing of the Registration Statement,
Prospectus and Statement of Additional Information, and
preparing and mailing to shareholders Prospectuses, Statements
of Additional Information, statements and confirmations and
periodic reports (including the expense of setting in type the
Registration Statement, Prospectus and Statement of Additional
Information or any periodic report);
(ii) the cost of preparing temporary or permanent
certificates for Shares;
(iii) the cost and expenses of delivering to the
Distributor at its office in Boston, Massachusetts all Shares
purchased through it as agent hereunder;
(iv) a distribution fee to the Distributor at an annual
rate not to exceed 0.10% of the Trust's average daily net
assets for its then-current fiscal year, plus an additional fee
at an annual rate not to exceed 0.10% of the Trust's average
daily net assets for its then-current fiscal year in
anticipation of, or as reimbursement for, expenses incurred by
the Distributor in connection with print or electronic media
advertising in connection with the sale of Shares, subject to
the Distribution Plan;
(v) all fees and disbursements of the Transfer Agent and
Custodian with respect to the Trust, subject to the Trust's
Administrative Services Plan;
(vi) a fee to each Shareholder Servicing Agent (pursuant to
a shareholder servicing agreement with each such Agent),
subject to the Trust's Administrative Services Plan;
(vii) a fee to the Administrator of the Trust (pursuant to
the Administrative Services Agreement), subject to the Trust's
Administrative Services Plan; and
(viii) a fee to the investment adviser of the Trust
(pursuant to the Investment Advisory Agreement with such
adviser).
The Distributor agrees that, with respect to the sale of
Shares, after the Prospectus and Statement of Additional Information
and periodic reports with respect to such Fund have been set in type,
it will bear the expense (other than the cost of mailing to
shareholders of the Trust) of printing and distributing any copies
thereof which are to be used in connection with the offering or sale of
Shares to any dealer or prospective investor. The Distributor further
agrees that it will bear the expenses of preparing, printing and
distributing any other literature used by the Distributor or furnished
by it for use by any dealer in connection with the offering of the
Shares for sale to the public and any expense of sending confirmations
and statements to any dealer having a sales agreement with the
Distributor. The Distributor will also bear the cost of any
compensation paid to dealers in connection with the sale of Shares. The
Distributor also agrees to bear the expenses of qualification of Shares
for sale in the various states and, if necessary or advisable in
connection therewith, of qualifying the Trust as a broker or dealer in
any such state.
6. If, at any time during the term of this Agreement, the Trust
shall deem it necessary or advisable in the best interests of the Trust
that any amendment of this Agreement be made in order to comply with
any recommendation or requirement of the Securities and Exchange
Commission or other governmental authority or to obtain any advantage
under Massachusetts or federal tax laws, it shall notify the
Distributor of the form of amendment which it deems necessary or
advisable and the reasons therefor. If the Distributor declines to
assent to such amendment (after a reasonable time), the Trust may
terminate this Agreement forthwith by written notice to the Distributor
without payment of any penalty. If, at any time during the term of this
Agreement, the Distributor requests the Trust to make any change in its
Governing Instruments or in its methods of doing business which are
necessary in order to comply with any requirement of federal law or
regulations of the Securities and Exchange Commission or of a national
securities association of which the Distributor is or may become a
member, relating to the sale of Shares, and the Trust fails (after a
reasonable time) to make any such change as requested, the Distributor
may terminate this Agreement forthwith by written notice to the Trust
without payment of any penalty.
7. The Distributor agrees that it will not take any long or short
position in the Shares and that, so far as it can control the
situation, it will prevent any of its Directors or officers from taking
any long or short position in the Shares, except as permitted by the
Governing Instruments.
8. This Agreement shall become effective upon its execution and
shall continue in force indefinitely, provided that such continuance is
specifically approved at least annually (i) by the vote of a majority
of the Trustees of the Trust who are not "interested persons" of the
Trust or of the Distributor at a meeting specifically called for the
purpose of voting on such approval, and (ii) by the Board of Trustees
of the Trust, or by the "vote of a majority of the outstanding voting
securities" of the Trust. The aforesaid requirement that continuance of
this Agreement be "specifically approved at least annually" shall be
construed in a manner consistent with the 1940 Act.
This Agreement may be terminated at any time by either party
without payment of any penalty on not more than 60 days' nor less than
30 days' written notice to the other party.
This Agreement shall automatically terminate in the event of
its assignment.
9. LFBDS may subcontract for the performance of LFBDS obligations
hereunder with any one or more persons; provided, however, that LFBDS
shall not enter into any such subcontract unless the Trustees of the
Trust shall have found the subcontracting party to be qualified to
perform the obligations sought to be subcontracted; and provided,
further, that, unless the Trust otherwise expressly agrees in writing,
LFBDS shall be as fully responsible to the Trust for the acts and
omissions of any subcontractor as it would be for its own acts or
omissions.
10. The terms "vote of a majority of the outstanding voting
securities", "interested person", "assignment" and "specifically
approved at least annually" shall have the respective meanings
specified in, and shall be construed in a manner consistent with, the
1940 Act, subject, however, to such exemptions as may be granted by the
Securities and Exchange Commission thereunder, and provided, however,
that the term "assignment" shall include (without limitation) any sale,
transfer or conversion of a controlling interest of any class of voting
stock of LFBDS or of any entity which holds a controlling interest of
any class of voting stock of LFBDS or another such entity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names on their behalf by the undersigned,
thereunto duly authorized, and their respective seals to be hereto affixed, all
as of the day and year first above written. The undersigned Trustee of the Trust
has executed this Agreement not individually, but as Trustee under the Trust's
Declaration of Trust, dated June 21, 1985, as amended, and the obligations of
this Agreement are not binding upon any of the Trustees or shareholders of the
Trust individually, but bind only the Trust estate.
LANDMARK TAX FREE RESERVES THE LANDMARK FUNDS BROKER-
DEALER SERVICES, INC.
By: /s/ Philip Coolidge By: /s/ Philip Coolidge
---------------------- ----------------------
Title: President Title: Chief Executive Officer
<PAGE>
EXHIBIT NO. 7
CUSTODIAN CONTRACT
Between
THE LANDMARK FUNDS TAX-FREE RESERVES
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
1. Employment of Custodian and Property to be Held By
It..........................................................l
2. Duties of the Custodian with Respect to Property
of the Fund Held by the Custodian............................2
2.1 Holding Securities ..............................2
2.2 Delivery of Securities ..........................2
2.3 Registration of Securities ......................7
2.4 Bank Accounts ...................................7
2.5 Payments for Shares .............................8
2.6 Investment and Availability of Federal Funds.....8
2.7 Collection of Income ............................9
2.8 Payment of Fund Moneys ..........................9
2.9 Liability for Payment in Advance of
Receipt of Securities Purchased ................12
2.10 Payments for Repurchases or Redemptions
of Shares of the Fund ..........................13
2.11 Appointment of Agents...........................13
2.12 Deposit of Fund Assets in Securities System.....14
2.13 Segregated Account..............................17
2.14 Ownership Certificates for Tax Purposes.........18
2.15 Proxies.........................................18
2.16 Communications Relating to Fund
Portfolio Securities............................19
2.17 Proper Instructions.............................l9
2.18 Actions Permitted Without Express Authority.....20
2.19 Evidence of Authority...........................21
3. Duties of Custodian With Respect to the Books of Account and
Calculation of Net Asset Value and Net Income ................21
4. Records ......................................................22
5. Opinion of Fund's Independent Accountants ....................23
6. Reports to Fund by Independent Public Accountants ............23
7. Compensation of Custodian ....................................23
8. Responsibility of Custodian ..................................24
9. Effective Period, Termination and Amendment...................25
10. Successor Custodian ..........................................26
11. Interpretive and Additional Provisions .......................28
12. Massachusetts Law to Apply ...................................28
13. Prior Contracts.............................................. 28
<PAGE>
CUSTODIAN CONTRACT
This Contract between The Landmark Funds Tax-Free Reserves, a business
trust organized and existing under the laws of Massachusetts, having its
principal place of business at 200 Berkeley Street, Boston, Massachusetts, 02116
hereinafter called the "Fund", and State Street Bank and Trust Company, a
Massachusetts corporation, having its principal place of business at 225
Franklin Street, Boston, Massachusetts, 02110, hereinafter called the
"Custodian"
WITNESSETH: That in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be Held by It
The Fund hereby employs the Custodian as the custodian of its assets
pursuant to the provisions of the Declaration of Trust. The Fund agrees to
deliver to the Custodian all securities and cash owned by it, and all payments
of income, payments of principal or capital distributions received by it with
respect to all securities owned by the Fund from time to time, and the cash
consideration received by it for such new or treasury shares of beneficial
interest ("Shares") of the Fund as may be issued or sold from time to time. The
Custodian shall not be responsible for any property of the Fund held or received
by the Fund and not delivered to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of Section 2.17),
the Custodian shall from time to time employ one or more sub-custodians, but
only in accordance with an applicable vote by the Trustees of the Fund, and
provided that the custodian shall have no more or less responsibility or
liability to the Fund on account of any actions or omissions of any
sub-custodian so employed than any such sub-custodian has to the Custodian.
2. Duties of the Custodian with Respect to Property of the Fund Held By the
Custodian
2.1 Holding Securities. The Custodian shall hold and physically segregate for
the account of the Fund all non-cash property, including all securities
owned by the Fund, other than securities which are maintained pursuant to
Section 2.12 in a clearing agency which acts as a securities depository or
in a book-entry system authorized by the U.S. Department of the Treasury,
collectively referred to herein as "Securities System".
2.2 Delivery of Securities. The Custodian shall release and deliver securities
owned by the Fund held by the Custodian or in a Securities System account
of the Custodian only upon receipt of Proper Instructions, which may be
continuing instructions when deemed appropriate by the parties, and only in
the following cases:
1) Upon sale of such securities for the account of the Fund and receipt
of payment therefor;
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Fund;
3) In the case of a sale effected through a Securities System, in
accordance with the provisions of Section 2.12 hereof;
4) To the depository agent in connection with tender or other similar
offers for portfolio securities of the Fund;
5) To the issuer thereof or its agent when such securities are called,
redeemed, retired or otherwise become payable; provided that, in any
such case, the cash or other consideration is to be delivered to the
Custodian;
6) To the issuer thereof, or its agent, for transfer into the name of
the Fund or into the name of any nominee or nominees of the
Custodian or into the name or nominee name of any agent appointed
pursuant to Section 2.11 or into the name or nominee name of any
sub-custodian appointed pursuant to Article 1; or for exchange for a
different number of bonds, certificates or other evidence
representing the same aggregate face amount or number of units;
provided that, in any such case, the new securities are to be
delivered to the Custodian;
7) To the broker selling the same for examination in accordance with
the "street delivery" custom;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of
the securities of the issuer of such securities, or pursuant to
provisions for conversion contained in such securities, or pursuant
to any deposit agreement provided that, in any such case, the new
securities and cash, if any, are to be delivered to the Custodian;
9) In the case of warrants, rights or similar securities, the surrender
thereof in the exercise of such warrants, rights or similar
securities or the surrender of interim receipts or temporary
securities for definitive securities; provided that, in any such
case, the new securities and cash, if any, are to be delivered to
the Custodian;
10) For delivery in connection with any loans of securities made by the
Fund, but only against receipt of adequate collateral as agreed upon
from time to time by the Custodian and the Fund, which may be in the
form of cash or obligations issued by the United States government,
its agencies or instrumentalities, except that in connection with
any loans for which collateral is to be credited to the Custodian's
account in the book-entry system authorized by the U.S. Department
of the Treasury, the Custodian will not be held liable or
responsible for the delivery of securities owned by the Fund prior
to the receipt of such collateral;
11) For delivery as security in connection with any borrowings by the
Fund requiring a pledge of assets by the Fund, but only against
receipt of amounts borrowed;
12) For delivery in accordance with the provisions of any agreement
among the Fund, the Custodian and a broker-dealer registered under
the Securities Exchange Act of 1934 (the "Exchange Act") and a
member of The National Association of Securities Dealers, Inc.
("NASD"), relating to compliance with the rules of The Options
Clearing Corporation and of any registered national securities
exchange, or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the
Fund;
13) For delivery in accordance with the provisions of any agreement
among the Fund, the Custodian, and a Futures Commission Merchant
registered under the Commodity Exchange Act, relating to compliance
With the rules of the Commodity Futures Trading Commission and/or
any Contract Market, or any similar organization or organizations,
regarding account deposits in connection with transactions by the
Fund;
14) Upon receipt of instructions from the transfer agent ("Transfer
Agent") for the Fund, for delivery to such Transfer Agent or to the
holders of shares in connection with distributions in kind, as may
be described from time to time in the Fund's currently effective
prospectus and statement of additional information ("prospectus"),
in satisfaction of requests by holders of Shares for repurchase or
redemption; and
15) For any other proper corporate purpose, but only upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution of
the Trustees or of the Executive Committee signed by an officer of
the Fund and certified by the Secretary or an Assistant Secretary,
specifying the securities to be delivered, setting forth the purpose
for which such delivery is to be made, declaring such purposes to be
proper corporate purposes, and naming the person or persons to whom
delivery of such securities shall be made.
2.3 Registration of Securities. Securities held by the Custodian (other than
bearer securities) shall be registered in the name of the Fund or in the
name of any nominee of the Fund or of any nominee of the Custodian which
nominee shall be assigned exclusively to the Fund, unless the Fund has
authorized in writing the appointment of a nominee to be used in common
with other registered investment companies having the same investment
adviser as the Fund, or in the name or nominee name of any agent appointed
pursuant to Section 2.11 or in the name or nominee name of any
sub-custodian appointed pursuant to Article 1. All securities accepted by
the Custodian on behalf of the Fund under the terms of this Contract shall
be in "street name" or other good delivery form.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts in the name of the Fund, subject only to draft or order
by the Custodian acting pursuant to the terms of this Contract, and shall
hold in such account or accounts, subject to the provisions hereof, all
cash received by it from or for the account of the Fund, other than cash
maintained by the Fund in a bank account established and used in
accordance with Rule 17f-3 under the Investment Company Act of 1940. Funds
held by the Custodian for the Fund may be deposited by it to its credit as
Custodian in the Banking Department of the Custodian or in such other banks
or trust companies as it may in its discretion deem necessary or desirable;
provided, however, that every such bank or trust company shall be qualified
to act as a custodian under the Investment Company Act of 1940 and that
each such bank or trust company and the funds to be deposited with each
such bank or trust company shall be approved by vote of a majority of the
Trustees of the Fund. Such funds shall be deposited by the Custodian in its
capacity as Custodian and shall be withdrawable by the Custodian only in
that capacity.
2.5 Payments for Shares. The Custodian shall receive from the distributor for
the Fund's Shares or from the Transfer Agent of the Fund and deposit into
the Fund's account such payments as are received for Shares of the Fund
issued or sold from time to time by the Fund. The Custodian will provide
timely notification to the Fund and the Transfer Agent of any receipt by it
of payments for Shares of the Fund.
2.6 Investment and Availability of Federal Funds. Upon mutual agreement between
the Fund and the Custodian, the Custodian shall, upon the receipt of Proper
Instructions,
1) invest in such instruments as may be set forth in such instructions
on the same day as received all federal funds received after a time
agreed upon between the Custodian and the Fund; and
2) make federal funds available to the Fund as of specified times
agreed upon from time to time by the Fund and the Custodian in the
amount of checks received in payment for Shares of the Fund which
are deposited into the Fund's account.
2.7 Collection of Income. The Custodian shall collect on a timely basis all
income and other payments with respect to registered securities held
hereunder to which the Fund shall be entitled either by law or pursuant to
custom in the securities business, and shall collect on a timely basis all
income and other payments with respect to bearer securities if, on the date
of payment by the issuer, such securities are held by the Custodian or
agent thereof and shall credit such-income, as collected, to the Fund's
custodian account. Without limiting the generality of the foregoing, the
Custodian shall detach and present for payment all coupons and other income
items requiring presentation as and when they become due and shall collect
interest when due on securities held hereunder. Income due the Fund on
securities loaned pursuant to the provisions of Section 2.2 (10) shall be
the responsibility of the Fund. The Custodian will have no duty or
responsibility in connection therewith, other than to provide the Fund with
such information or data as may be necessary to assist the Fund in
arranging for the timely delivery to the Custodian of the income to which
the Fund is properly entitled.
2.8 Payment of Fund Moneys. Upon receipt of Proper Instructions, which may be
continuing instructions when deemed appropriate by the parties, the
Custodian shall pay out moneys of the Fund in the following cases only:
1) Upon the purchase of securities, futures contracts or options on
futures contracts for the account of the Fund but only (a) against
the delivery of such securities, or evidence of title to futures
contracts or options on futures contracts, to the Custodian (or any
bank, banking firm or trust company doing business in the United
States or abroad which is qualified under the Investment Company Act
of 1940, as amended, to act as a custodian and has been designated
by the Custodian as its agent for this purpose) registered in the
name of the Fund or in the name of a nominee of the Custodian
referred to in Section 2.3 hereof or in proper form for transfer (b)
in the case of a purchase effected through a Securities System, in
accordance with the conditions set forth in Section 2.12 hereof or
(c) in the case of repurchase agreements entered into between the
Fund and the Custodian, or another bank, or a broker-dealer which is
a member of NASD, (i) against delivery of the securities either in
certificate form or through an entry crediting the Custodian's
account at the Federal Reserve Bank with such securities or (ii)
against delivery of the receipt evidencing purchase by the Fund of
securities owned by the Custodian along with written evidence of the
agreement by the Custodian to repurchase such securities from the
Fund;
2) In connection with conversion, exchange or surrender of securities
owned by the Fund as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued by the Fund as set
forth in Section 2.10 hereof;
4) For the payment of any expense or liability incurred by the Fund;
including but not limited to the following payments for the account
of the Fund: interest, taxes, management, accounting, transfer agent
and legal fees, and operating expenses of the Fund whether or not
such expenses are to be in whole or part capitalized or treated as
deferred expenses;
5) For the payment of any dividends declared pursuant to the governing
documents of the Fund;
6) For payment of the amount of dividends received in respect of
securities sold short;
7) For any other proper purpose, but only upon receipt of, in addition
to Proper Instructions, a certified copy of a resolution of the
Trustees or of the Executive Committee of the Fund signed by an
officer of the Fund and certified by its Secretary or an Assistant
Secretary, specifying the amount of such payment, setting forth the
purpose for which such payment is to be made, declaring such purpose
to be a proper purpose, and naming the person or persons to whom
such payment is to be made.
2.9 Liability for Payment in Advance of Receipt of Securities Purchased. In any
and every case where payment for purchase of securities for the account of
the Fund is made by the Custodian in advance of receipt of the securities
purchased in the absence of specific written instructions from the Fund to
so pay in advance, the Custodian shall be absolutely liable to the Fund for
such securities to the same extent as if the securities had been received
by the Custodian, except that in the case of repurchase agreements entered
into by the Fund with a bank which is a member of the Federal Reserve
System, the Custodian may transfer funds to the account of such bank prior
to the receipt of written evidence that the securities subject to such
repurchase agreement have been transferred by book-entry into a segregated
non-proprietary account of the Custodian maintained with the Federal
Reserve Bank of Boston or of the safe-keeping receipt, provided that such
securities have in fact been so transferred by book-entry.
2.10 Payments for Repurchases or Redemptions of Shares of the Fund. From such
funds as may be available for the purpose but subject to the limitations of
the Declaration of Trust and any applicable votes of the Trustees of the
Fund pursuant thereto, the Custodian shall, upon receipt of instructions
from the Transfer Agent, make funds available for payment to holders of
Shares who have delivered to the Transfer Agent a request for redemption or
repurchase of their Shares. In connection with the redemption or repurchase
of Shares of the Fund, the Custodian is authorized upon receipt of
instructions from the Transfer Agent to wire funds to or through a
commercial bank designated by the redeeming shareholders. In connection
with the redemption or repurchase of Shares of the Fund, the Custodian
shall honor checks drawn on the Custodian by a holder of Shares, which
checks have been furnished by the Fund to the holder of Shares, when
presented to the Custodian in accordance with such procedures and controls
as are mutually agreed upon from time to time between the Fund and the
Custodian.
2.11 Appointment of Agents. The Custodian may at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the Investment Company Act of 1940,
as amended, to act as a custodian, as its agent to carry out such of the
provisions of this Article 2 as the Custodian may from time to time direct;
provided, however, that the appointment of any agent shall not relieve the
Custodian of its responsibilities or liabilities hereunder.
2.12 Deposit of Trust Assets in Securities Systems. The Custodian may deposit
and/or maintain securities owned by the Fund in a clearing agency
registered with the Securities and Exchange Commission under Section 17A of
the Securities Exchange Act of 1934, which acts as a securities depository,
or in the book-entry system authorized by the U.S. Department of the
Treasury and certain federal agencies, collectively referred to herein as
"Securities System" in accordance with applicable Federal Reserve Board and
Securities and Exchange Commission rules and regulations, if any, and
subject to the following provisions:
1) The Custodian may keep securities of the Fund in a Securities System
provided that such securities are represented in an account
("Account") of the Custodian in the Securities System which shall
not include any assets of the Custodian other than assets held as a
fiduciary, custodian or otherwise for customers;
2) The records of the Custodian with respect to securities of the Fund
which are maintained in a Securities System shall identify by
book-entry those securities belonging to the Fund;
3) The Custodian shall pay for Securities purchased for the account of
the Fund upon (i) receipt of advice from the Securities System that
such securities have been transferred to the Account, and (ii) the
making of an entry on the records of the Custodian to reflect such
payment and transfer for the account of the Fund. The Custodian
shall transfer securities sold for the account of the Fund upon (i)
receipt of advice from the Securities System that payment for such
securities has been transferred to the Account, and (ii) the making
of an entry on the records of the Custodian to reflect such transfer
and payment for the account of the Fund. Copies of all advices from
the Securities System of transfers of securities for the account of
the Fund shall identify the Fund, be maintained for the Fund by the
Custodian and be provided to the Fund at its request. Upon request,
the Custodian shall furnish the Fund confirmation of each transfer
to or from the account of the Fund in the form of a written advice
or notice and shall furnish to the Fund copies of daily transaction
sheets reflecting each day's transactions in the Securities System
for the account of the Fund.
4) The Custodian shall provide the Fund with any report obtained by the
Custodian on the Securities System's accounting system, internal
accounting control and procedures for safeguarding securities
deposited in the Securities System;
5) The Custodian shall have received the initial or annual certificate,
as the case may be, required by Article 9 hereof;
6) Anything to the contrary in this Contract notwithstanding, the
Custodian shall be liable to the Fund for any loss or damage to the
Fund resulting from use of the Securities System by reason of any
negligence, misfeasance or misconduct of the Custodian or any of its
agents or of any of its or their employees or from failure of the
Custodian or any such agent to enforce effectively such rights as it
may have against the Securities System; at the election of the Fund,
it shall be entitled to be subrogated to the rights of the Custodian
with respect to any claim against the Securities System or any other
person which the Custodian may have as a consequence of any such
loss or damage if and to the extent that the Fund has not been made
whole for any such loss or damage.
2.13 Segregated Account. The Custodian shall upon receipt of Proper Instructions
establish and maintain a segregated account or accounts for and on behalf
of the Fund, into which account or accounts may be transferred cash and/or
securities, including securities maintained in an account by the Custodian
pursuant to Section 2.12 hereof, (i) in accordance with the provisions of
any agreement among the Fund, the Custodian and a broker-dealer registered
under the Exchange Act and a member of the NASD (or any futures commission
merchant registered under the Commodity Exchange Act), relating to
compliance with the rules of The Options Clearing Corporation and of any
registered national securities exchange (or the Commodity Futures Trading
Commission or any registered contract market), or of any similar
organization or organizations, regarding escrow or other arrangements in
connection with transactions by the Fund, (ii) for purposes of segregating
cash or government securities in connection with options purchased, sold or
written by the Fund or commodity futures contracts or options thereon
purchased or sold by the Fund, (iii) for the purposes of compliance by the
Fund with the procedures required by Investment Company Act Release No.
10666, or any subsequent release or releases of the Securities and Exchange
Commission relating to the maintenance of segregated accounts by registered
investment companies and (iv) for other proper corporate purposes, but
only, in the case of clause (iv), upon receipt of, in addition to Proper
Instructions, a certified copy of a resolution of the Trustees or of the
Executive Committee signed by an officer of the Fund and certified by the
Secretary or an Assistant Secretary, setting forth the purpose or purposes
of such segregated account and declaring such purposes to be proper
corporate purposes.
2.14 Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and state
tax purposes in connection with receipt of income or other payments with
respect to securities of the Fund held by it and in connection with
transfers of securities.
2.15 Proxies. The Custodian shall, with respect to the securities held
hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of
the Fund or a nominee of the Fund, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver to
the Fund such proxies, all proxy soliciting materials and all notices
relating to such securities.
2.16 Communications Relating to Fund Portfolio Securities. The Custodian shall
transmit promptly to the Fund all written information (including, without
limitation, pendency of calls and maturities of securities and expirations
of rights in connection therewith and notices of exercise of call and put
options written by the Fund and the maturity of futures contracts purchased
or sold by the Fund) received by the Custodian from issuers of the
securities being held for the Fund. With respect to tender or exchange
offers, the Custodian shall transmit promptly to the Fund all written
information received by the Custodian from issuers of the securities whose
tender or exchange is sought and from the party (or his agents) making the
tender or exchange offer. If the Fund desires to take action with respect
to any tender offer, exchange offer or any other similar transaction, the
Fund shall notify the Custodian at least three business days prior to the
date on which the Custodian is to take such action.
2.17 Proper Instructions. Proper Instructions as used throughout this Article 2
means a writing signed or initialled by one or more person or persons as
the Trustees shall have from time to time authorized. Each such writing
shall set forth the specific transaction or type of transaction involved,
including a specific statement of the purpose for which such action is
requested. Oral instructions will be considered Proper Instructions if the
Custodian reasonably believes them to have been given by a person
authorized to give such instructions with respect to the transaction
involved. The Fund shall cause all oral instructions to be confirmed in
writing. Upon receipt of a certificate of the Secretary or an Assistant
Secretary as to the authorization by the Trustees of the Fund accompanied
by a detailed description of procedures approved by the Trustees, Proper
Instructions may include communications effected directly between
electro-mechanical or electronic devices provided that the Trustees and the
Custodian are satisfied that such procedures afford adequate safeguards for
the Fund's assets.
2.18 Actions Permitted without Express Authority. The Custodian may in its
discretion, without express authority from the Fund:
1) make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under this
Contract, provided that all such payments shall be accounted for to
the Fund;
2) surrender securities in temporary form for securities in definitive
form;
3) endorse for collection, in the name of the Fund, checks, drafts and
other negotiable instruments; and
4) in general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other
dealings with the securities and property of the Fund except as
otherwise directed by the Trustees of the Fund.
2.19 Evidence of Authority. The Custodian shall be protected in acting upon any
instructions, notice, request, consent, certificate or other instrument or
paper believed by it to be genuine and to have been properly executed by or
on behalf of the Fund. The Custodian may receive and accept a certified
copy of a vote of the Trustees of the Fund as conclusive evidence (a) of
the authority of any person to act in accordance with such vote or (b) of
any determination or of any action by the Trustees pursuant to the
Declaration of Trust as described in such vote, and such vote may be
considered as in full force and effect until receipt by the Custodian of
written notice to the contrary.
3. Duties of Custodian with Respect to the Books of Account and Calculation of
Net Asset Value and Net Income.
The Custodian shall cooperate with and supply necessary information to the
entity or entities appointed by the Trustees of the Fund to keep the books of
account of the Fund and/or compute the net asset value per share of the
outstanding shares of the Fund or, if directed in writing to do so by the Fund,
shall itself keep such books of account and/or compute such net asset value per
share. If so directed, the Custodian shall also calculate daily the net income
of the Fund as described in the Fund's currently effective prospectus and shall
advise the Fund and the Transfer Agent daily of the total amounts of such net
income and, if instructed in writing by an officer of the Fund to do so, shall
advise the Transfer Agent periodically of the division of such net income among
its various components. The calculations of the net asset value per share and
the daily income of the Fund shall be made at the time or times described from
time to time in the Fund's currently effective prospectus.
4. Records
The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet the
obligations of the Fund under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder,
applicable federal and state tax laws and any other law or administrative rules
or procedures which may be applicable to the Fund. All such records shall be the
property of the Fund and shall at all times during the regular business hours of
the Custodian be open for inspection by duly authorized officers, employees or
agents of the Fund and employees and agents of the Securities and Exchange
Commission. The Custodian shall, at the Fund's request, supply the Fund with a
tabulation of securities owned by the Fund and held by the Custodian and shall,
when requested to do so by the Fund and for such compensation as shall be agreed
upon between the Fund and the Custodian, include certificate numbers in such
tabulations.
5. Opinion of Fund's Independent Accountant
The Custodian shall take all reasonable action, as the Fund may from time
to time request, to obtain from year to year favorable opinions from the Fund's
independent accountants with respect to its activities hereunder in connection
with the preparation of the Fund's Form N-1A, and Form N-SAR or other annual
reports to the Securities and Exchange Commission and with respect to any other
requirements of such Commission.
6. Reports to Fund by Independent Public Accountants
The Custodian shall provide the Fund, at such times as the Fund may
reasonably require, with reports by independent public accountants on the
accounting system, internal accounting control and procedures for safeguarding
securities, futures contracts and options on futures contracts, including
securities deposited and/or maintained in a Securities System, relating to the
services provided by the Custodian under this Contract; such reports, which
shall be of sufficient scope and in sufficient detail, as may reasonably be
required by the Fund, to provide reasonable assurance that any material
inadequacies would be disclosed by such examination, and, if there are no such
inadequacies, shall so state.
7. Compensation of Custodian
The custodian shall be entitled to reasonable compensation for its services
and expenses as Custodian, as agreed upon from time to time between the Fund and
the Custodian.
8. Responsibility of Custodian
So long as and to the extent that it is in the exercise of reasonable care,
the Custodian shall not be responsible for the title, validity or genuineness of
any property or evidence of title thereto received by it or delivered by it
pursuant to this Contract and shall be held harmless in acting upon any notice,
request, consent, certificate or other instrument reasonably believed by it to
be genuine and to be signed by the proper party or parties. The Custodian shall
be held to the exercise of reasonable care in carrying out the provisions of
this Contract, but shall be kept indemnified by and shall be without liability
to the Fund for any action taken or omitted by it in good faith without
negligence. It shall be entitled to rely on and may act upon advice of counsel
(who may be counsel for the Fund) on all matters, and shall be without liability
for any action reasonably taken or omitted pursuant to such advice.
Notwithstanding the foregoing, the responsibility of the Custodian with respect
to redemptions effected by check shall be in accordance with a separate
Agreement entered into between the Custodian and the Fund.
If the Fund requires the Custodian to take any action with respect to
securities, which action involves the payment of money or which action may, in
the opinion of the Custodian, result in the Custodian or its nominee assigned to
the Fund being liable for the payment of money or incurring liability of some
other form, the Fund, as a prerequisite to requiring the Custodian to take such
action, shall provide indemnity to the Custodian in an amount and form
satisfactory to it.
If the Fund requires the Custodian to advance cash or securities for any
purpose or in the event that the Custodian or its nominee shall incur or be
assessed any taxes, charges, expenses, assessments, claims or liabilities in
connection with the performance of this Contract, except such as may arise from
its or its nominee's own negligent action, negligent failure to act or willful
misconduct, any property at any time held for the account of the Fund shall be
security therefor and should the Fund fail to repay the Custodian promptly, the
Custodian shall be entitled to utilize available cash and to dispose of Fund
assets to the extent necessary to obtain reimbursement.
9. Effective Period, Termination and Amendment
This Contract shall become effective as of its execution, shall continue in
full force and effect until terminated as hereinafter provided, may be amended
at any time by mutual agreement of the parties hereto and may be terminated by
either party by an instrument in writing delivered or mailed, postage prepaid to
the other party, such termination to take effect not sooner than thirty (30)
days after the date of such delivery or mailing; provided, however that the
Custodian shall not act under Section 2.12 hereof in the absence of receipt of
an initial certificate of the Secretary or an Assistant Secretary that the
Trustees of the Fund have approved the initial use of a particular Securities
System and the receipt of an annual certificate of the Secretary or an Assistant
Secretary that the Trustees have reviewed the use by the Fund of such Securities
System, as required in each case by Rule 17f-4 under the Investment Company Act
of 1940, as amended; provided further, however, that the Fund shall not amend or
terminate this Contract in contravention of any applicable federal or state
regulations, or any provision of the Declaration of Trust, and further provided,
that the Fund may at any time by action of its Trustees (i) substitute another
bank or trust company for the Custodian by giving notice as described above to
the Custodian, or (ii) immediately terminate this Contract in the event of the
appointment of a conservator or receiver for the Custodian by the Comptroller of
the Currency or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
Upon termination of the Contract, the Fund shall pay to the Custodian such
compensation as may be due as of the date of such termination and shall likewise
reimburse the Custodian for its costs, expenses and disbursements.
10. Successor Custodian
If a successor custodian shall be appointed by the Trustees of the Fund,
the Custodian shall, upon termination, deliver to such successor custodian at
the office of the Custodian, duly endorsed and in the form for transfer, all
securities then held by it hereunder and shall transfer to an account of the
successor custodian all of the Fund's securities held in a Securities System.
If no such successor custodian shall be appointed, the Custodian shall, in
like manner, upon receipt of a certified copy of a vote of the Trustees of the
Fund, deliver at the office of the Custodian and transfer such securities, funds
and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Trustees shall have been delivered to the
Custodian on or before the date when such termination shall become effective,
then the Custodian shall have the right to deliver to a bank or trust company,
which is a "bank" as defined in the Investment Company Act of 1940, doing
business in Boston, Massachusetts, of its own selection, having an aggregate
capital, surplus, and undivided profits, as shown by its last published report,
of not less than $25,000,000, all securities, funds and other properties held by
the Custodian and all instruments held by the Custodian relative thereto and all
other property held by it under this Contract and to transfer to an account of
such successor custodian all of the Fund's securities held in any Securities
System. Thereafter, such bank or trust company shall be the successor of the
Custodian under this Contract.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Fund to procure the certified copy of vote referred to or of the
Trustees to appoint a successor custodian, the Custodian shall be entitled to
fair compensation for its services during such period as the Custodian retains
possession of such securities, funds and other properties and the provisions of
this Contract relating to the duties and obligations of the Custodian shall
remain in full force and effect.
11. Interpretive and Additional Provisions
In connection with the operation of this Contract, the Custodian and the
Fund may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Contract as may in their joint opinion be
consistent with the general tenor of this Contract. Any such interpretive or
additional provisions shall be in a writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the Declaration of Trust of the Fund. No interpretive or additional provisions
made as provided in the preceding sentence shall be deemed to be an amendment of
this Contract.
12. Massachusetts Law to Apply
This Contract shall be construed and the provisions thereof interpreted
under and in accordance with laws of The Commonwealth of Massachusetts.
13. Prior Contracts
This Contract supersedes and terminates, as of the date hereof, all prior
contracts between the Fund and the Custodian relating to the custody of the
Fund's assets.
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 20th day of August, 1985.
ATTEST THE LANDMARK FUNDS TAX-FREE RESERVES
/s/Philip Coolidge /s/Richard B. Bailey
- ------------------- --------------------------------
ATTEST STATE STREET BANK AND TRUST COMPANY
/s/ Kathy M. Kubit /s/ Don McCracken
- ------------------- --------------------------------
Assistant Secretary Vice President
<PAGE>
EXHIBIT NO. 9(A)
AMENDED AND RESTATED
ADMINISTRATIVE SERVICES PLAN
AMENDED AND RESTATED ADMINISTRATIVE SERVICES PLAN, dated August 20,
1985 and amended and restated as of April 15, 1993 of Landmark Tax Free
Reserves, a Massachusetts business trust (the "Trust").
WITNESSETH:
WHEREAS, the Trust is engaged in business as an open-end management
investment company and is registered under the Investment Company Act of 1940
(collectively with the rules and regulations promulgated thereunder, the "1940
Act"); and
WHEREAS, the Shares of Beneficial Interest of the Trust (the "Shares")
may be divided in the future into separate series (the "Funds"); and
WHEREAS, the Trust desires to adopt this Administrative Services Plan
(the "Plan") in order to provide for certain administrative services to the
Trust and holders of Shares of each Fund; and
WHEREAS, the Trust desires to enter into a transfer agency agreement
(in such form as may from time to time be approved by the Board of Trustees of
the Trust) with a financial institution, as transfer agent for the Trust (the
"Transfer Agent"), whereby the Transfer Agent will provide transfer agency
services to the Trust itself or with respect to each Fund, if any (the "Transfer
Agency Agreement"); and
WHEREAS, the Trust desires to enter into a custodian agreement (in such
form as may from time to time be approved by the Board of Trustees of the Trust)
with a financial institution, as custodian for the Trust (the "Custodian"),
whereby the Custodian will provide custodial services to the Trust itself or
with respect to each Fund, if any (the "Custodian Agreement"); and
WHEREAS, the Trust desires to enter into an administrative services
agreement (in such form as may from time to time be approved by the Board of
Trustees of the Trust) with The Landmark Funds Broker-Dealer Services, Inc., a
Massachusetts corporation, as administrator of the Trust (the "Administrator"),
whereby the Administrator will provide certain administrative and management
services to the Trust (the "Administrative Services Agreement"); and
WHEREAS, the Trust also desires to enter into shareholder servicing
agreements (in such form as may from time to time be approved by the Board of
Trustees of the Trust) with certain financial institutions, as shareholder
servicing agents ("Shareholder Servicing Agents"), whereby such Shareholder
Servicing Agent will, as agent for its customers, provide certain services to
shareholders of the Trust or of one or more Funds, if any (the "Shareholder
Servicing Agreements"); and
WHEREAS, the Board of Trustees of the Trust, in considering whether the
Trust should adopt and implement this Plan, has evaluated such information as it
deemed necessary to an informed determination as to whether this Plan should be
adopted and implemented and has considered such pertinent factors as it deemed
necessary to form the basis for a decision to use assets of the Trust or of each
Fund, if any, for such purposes, and has determined that there is a reasonable
likelihood that the adoption and implementation of this Plan will benefit the
Trust and each Fund and its shareholders.
NOW, THEREFORE, the Board of Trustees of the Trust hereby adopts this
Plan for the Trust, on the following terms and conditions:
1. As specified in the Transfer Agency Agreement, the Transfer
Agent shall perform transfer agency functions for the Trust or each
Fund, if any. The Trust shall pay to the Transfer Agent such
compensation from the assets of the Trust or each Fund, if any, as may
from time to time be agreed to by the Trust and the Transfer Agent.
2. As specified in the Custodian Agreement, the Custodian shall
safeguard and control the cash and securities of the Trust or of each
Fund, if any, handle receipt and delivery of securities for the Trust
and each Fund, if any, determine income and collect interest on the
investments of the Trust and each Fund, if any, maintain books of
original entry for Trust and Fund accounting and other required books
and accounts, calculate the daily net asset value of the Shares
including the Shares of each Fund, if any, and, in general, act as the
custodian of the assets of the Trust, but the Custodian shall have no
power to determine the investment policies of the Trust or to determine
which securities the Trust will buy or sell for itself on behalf of any
Fund. The Trust shall pay to the Custodian such compensation as may
from time to time be agreed to by the Trust and the Custodian.
3. As specified in the Administrative Services Agreement, the
Administrator shall perform certain administrative and management
services on behalf of the Trust, including: providing office space,
equipment and clerical personnel necessary for maintaining the
organization of the Trust and for providing the administrative and
management services to be performed by the Administrator; arranging, if
desired by the Trust, for Directors, officers and employees of the
Administrator to serve as Trustees, officers or agents of the Trust if
duly elected or appointed to such positions and subject to their
individual consent and to any limitations imposed by law; supervising
the overall administration of the Trust, including negotiation of
contracts and fees with and the monitoring of performance and billings
of the Trust's Transfer Agent, Shareholder Servicing Agents, Custodian
and other independent contractors or agents; preparing and, if
applicable, filing all documents required for compliance by the Trust
with applicable laws and regulations, including registration
statements, prospectuses, statements of additional information,
semi-annual and annual reports to shareholders, proxy statements and
tax returns; preparation of agendas and supporting documents for
minutes of meetings of Trustees, committees of Trustees and
shareholders; arranging for computation of performance statistics with
respect to the Trust and each Fund, if any, and arranging for
publication of current price information in newspapers and other
publications; and arranging for maintenance of books and records of the
Trust and each Fund. As consideration for services performed under the
Administrative Services Agreement, the Trust shall, subject to
paragraph 5 hereof, periodically pay to the Administrator such fee from
the assets of the Trust or each Fund, if any, as may from time to time
be agreed to by the Trust and the Administrator.
4. As specified in each Shareholder Servicing Agreement, each
Shareholder Servicing Agent shall, with respect to the Trust or one or
more Funds, as agent for its customers who purchase Shares, perform
certain shareholder account, administrative and service functions for
such customers, including, among others: answering customer inquiries
regarding the manner in which purchases, exchanges and redemptions of
Shares may be effected, and with regard to certain other matters
pertaining to the Trust or such Fund; assisting customers in
designating and changing dividend options, account designations and
addresses; providing necessary personnel and facilities to maintain
certain shareholder accounts and records, as specified from time to
time by the Trust; assisting in processing purchase, exchange and
redemption transactions; arranging for the wiring of funds;
transmitting and receiving funds in connection with customer orders to
purchase, exchange and redeem Shares; verifying and guaranteeing
shareholder signatures in connection with redemption orders and
transfers and changes in shareholder-designated accounts; providing
periodic statements showing a customer's account balances, and to the
extent practicable, integrating such information with other client
transactions effected with or through the Shareholder Servicing Agent;
furnishing monthly and annual statements and confirmations of
purchases, exchanges and redemptions of Shares in a customer's account;
transmitting proxy statements, annual reports, updating prospectuses,
statements of additional information and other communications from the
Trust to its shareholders or such Fund's shareholders; and providing
such other related services as the Trust or a shareholder may request.
Each Shareholder Servicing Agreement shall provide that the Shareholder
Servicing Agent shall provide all personnel and facilities necessary in
order for it to perform the functions described in this paragraph with
respect to its customers who purchase Shares. As consideration for
services performed under the Shareholder Servicing Agreements, the
Trust shall, subject to paragraph 5 hereof, periodically pay to each
Shareholder Servicing Agent such fee from the assets of the Trust or
each such Fund, if any, as may from time to time be agreed to by the
Trust and such Shareholder Servicing Agent. Each Shareholder Servicing
Agent will be permitted to charge its customers direct fees for the
same or similar services as provided pursuant to a Shareholder
Servicing Agreement.
5. Notwithstanding paragraphs 3 and 4 hereof, the aggregate of the
fee payable from the Trust or a Fund, if any, to the Administrator
pursuant to the Administrative Services Agreement, the fees payable
from the Trust or such Fund, if any, to the Shareholder Servicing
Agents pursuant to the Shareholder Servicing Agreements and the Basic
Distribution Fees (as defined in the Trust's Distribution Plan) payable
from the Trust or such Fund, if any, to the Distributor pursuant to the
Trust's Distribution Plan may not exceed an amount equal to .60% of the
Trust's or such Fund's average daily net assets on an annualized basis
for the Trust's or such Fund's then current fiscal year.
6. Nothing herein contained shall be deemed to require the Trust
to take any action contrary to its Declaration of Trust or By-Laws or
any applicable statutory or regulatory requirement to which it is
subject or by which it is bound, or to relieve or deprive the Board of
Trustees of the Trust of the responsibility for and control of the
conduct of the affairs of the Trust.
7. This Plan shall become effective upon (a) approval by a vote of
at least a "majority of the outstanding voting securities" of the Trust
or each Fund, if any, and (b) approval by a vote of the Board of
Trustees of the Trust and vote of a majority of the Trustees who are
not "interested persons" of the Trust and who have no direct or
indirect financial interest in the operation of the Plan or in any of
the agreements related to the Plan (the "Qualified Trustees"), such
votes to be cast in person at a meeting called for the purpose of
voting on this Plan.
8. This Plan shall continue in effect indefinitely, provided that
such continuance is subject to annual approval by a vote of the Board
of Trustees of the Trust and a majority of the Qualified Trustees, such
votes to be cast in person at a meeting called for the purpose of
voting on continuance of this Plan. If such annual approval is not
obtained, this Plan shall expire on the later to occur of [DATE], or
the date which is 15 months after the date of the last approval.
9. This Plan may be amended at any time by the Board of Trustees
of the Trust, provided that (a) any amendment to increase materially
the amount to be expended from the assets of the Trust or of any Fund
for the services described herein shall be effective only upon approval
by a vote of a "majority of the outstanding voting securities" of the
Trust or such Fund, and (b) any material amendment of this Plan shall
be effective only upon approval by a vote of the Board of Trustees of
the Trust and a majority of the Qualified Trustees, such votes to be
cast in person at a meeting called for the purpose of voting on such
amendment. This Plan may be terminated at any time with respect to the
Trust or any Fund by vote of a majority of the Qualified Trustees or by
a vote of a "majority of the outstanding voting securities" of the
Trust or such Fund.
10. The Treasurer of the Trust shall provide the Board of Trustees
of the Trust, and the Board of Trustees of the Trust shall review, at
least quarterly, a written report of the amounts expended under the
Plan and the purposes for which such expenditures were made.
11. While this Plan is in effect, the selection and nomination of
Qualified Trustees shall be committed to the discretion of the Trustees
who are not "interested persons" of the Trust.
12. For the purposes of this Plan, the terms "interested person"
and "majority of the outstanding voting securities" are used as defined
in the 1940 Act. In addition, for purposes of determining the fees
payable to the Administrator and each Shareholder Servicing Agent, the
value of the Trust's or Fund's net assets shall be computed in the
manner specified in the Trust's then-current prospectus and statement
of additional information applicable to the Trust or that Fund for the
computation of the net asset value applicable to the Shares, including
those of that Fund.
13. The Trust or Fund, if any, shall preserve copies of this Plan,
and each agreement related hereto and each report referred to in
paragraph 10 hereof (collectively the "Records"), for a period of six
years from the end of the fiscal year in which such Record was made and
each such Record shall be kept in an easily accessible place for the
first two years of said record-keeping.
14. This Plan shall be construed in accordance with the laws of
the Commonwealth of Massachusetts and the applicable provisions of the
1940 Act.
15. If any provision of this Plan shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of the Plan
shall not be affected thereby.
<PAGE>
EXHIBIT NO. 9(B)
ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT, dated as of April 15, 1993, by and
between Landmark Tax Free Reserves, a Massachusetts business trust (the
"Trust"), and THE LANDMARK FUNDS BROKER-DEALER SERVICES, INC., a Massachusetts
corporation ("LFBDS" or the "Administrator").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as an open-end investment
company registered under the Investment Company Act of 1940 (collectively with
the rules and regulations promulgated thereunder, the "1940 Act");
WHEREAS, the Shares of Beneficial Interest of the Trust (the "Shares") may
be divided in the future into one or more separate series (the "Funds");
WHEREAS, the Board of Trustees of the Trust has adopted an Administrative
Services Plan, dated as of August 20, 1985 (as amended and in effect from time
to time, the "Plan"), which is incorporated herein by reference and pursuant to
which the Trust desires to enter into this Administrative Services Agreement;
and
WHEREAS, the Trust wishes to engage LFBDS to provide certain
administrative and management services, and LFBDS is willing to provide such
administrative and management services to the Trust, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. Duties of the Administrator. Subject to the direction and control
of the Board of Trustees of the Trust, the Administrator shall perform
such administrative and management services as may from time to time be
reasonably requested by the Trust, which shall include without limitation:
(a) providing office space, equipment and clerical personnel necessary for
maintaining the organization of the Trust and for performing the
administrative and management functions herein set forth; (b) arranging,
if desired by the Trust, for Directors, officers and employees of the
Administrator to serve as Trustees, officers or agents of the Trust if
duly elected or appointed to such positions and subject to their
individual consent and to any limitations imposed by law; (c) supervising
the overall administration of the Trust, including negotiation of
contracts and fees with and the monitoring of performance and billings of
the Trust's transfer agent, shareholder servicing agents, custodian and
other independent contractors or agents; (d) preparing and, if applicable,
filing all documents required for compliance by the Trust with applicable
laws and regulations, including registration statements, prospectuses and
statements of additional information, semi-annual and annual reports to
shareholders, proxy statements and tax returns; (e) preparation of agendas
and supporting documents for and minutes of meetings of Trustees,
committees of Trustees and shareholders; and (f) arranging for maintenance
of books and records of the Trust. Notwithstanding the foregoing, the
Administrator shall not be deemed to have assumed any duties with respect
to, and shall not be responsible for, the management of the Trust's assets
or the rendering of investment advice and supervision with respect thereto
or the distribution of the Shares, nor shall the Administrator be deemed
to have assumed or have any responsibility with respect to functions
specifically assumed by any transfer agent, custodian or shareholder
servicing agent of the Trust.
2. Allocation of Charges and Expenses. LFBDS shall pay the entire
salaries and wages of all of the Trust's Trustees, officers and agents who
devote part or all of their time to the affairs of LFBDS or its
affiliates, and the wages and salaries of such persons shall not be deemed
to be expenses incurred by the Trust for purposes of this Section 2.
Except as provided in the foregoing sentence, the Trust will pay all of
its own expenses including, without limitation, compensation of Trustees
not affiliated with the Administrator; governmental fees; interest
charges; taxes; membership dues in the Investment Company Institute
allocable to the Trust; fees and expenses of the Trust's investment
adviser or advisers; fees and expenses of independent auditors, of legal
counsel and of any transfer agent, distributor, shareholder servicing
agent, registrar or dividend disbursing agent of the Trust; expenses of
distributing and redeeming Shares and servicing shareholder accounts;
expenses of preparing, printing and mailing prospectuses and statements of
additional information, reports, notices, proxy statements and reports to
shareholders and governmental officers and commissions; expenses connected
with the execution, recording and settlement of portfolio security
transactions; insurance premiums; fees and expenses of the Trust's
custodian for all services to the Trust, including safekeeping of funds
and securities and maintaining required books and accounts; expenses of
calculating the net asset value of shares of the Trust; expenses of
shareholder meetings; and expenses relating to the issuance, registration
and qualification of shares of the Trust.
3. Compensation of Administrator. Subject to paragraph 5 of the Plan,
for the services to be rendered and the facilities to be provided by the
Administrator hereunder, the Trust shall pay to the Administrator an
administrative fee from the assets of the Trust or of each Fund, if any,
as may be agreed to from time to time by the Trust and the Administrator.
If LFBDS serves as Administrator for less than the whole of any period
specified in this Section 3, the compensation to LFBDS, as Administrator,
shall be prorated. For purposes of computing the fees payable to the
Administrator hereunder, the value of the net assets of the Trust or of
any Fund shall be computed in the manner specified in the Trust's
then-current prospectus and statement of additional information.
4. "Landmark Funds" Name. The Trust hereby acknowledges that any and
all rights in or to the names "Landmark" and "Landmark Funds" which exist
on the date of this Agreement or which may arise hereafter are, and under
any and all circumstances shall continue to be, the sole property of
LFBDS; that LFBDS may assign any or all of such rights to another party or
parties without the consent of the Trust; and that LFBDS may permit other
parties, including other investment companies, to use the word "Landmark"
or the words "Landmark Funds" in their names. If LFBDS, or its assignee as
the case may be, ceases to serve as the Administrator of the Trust, the
Trust hereby agrees to take promptly any and all actions which are
necessary or desirable to change its name so as to delete the word
"Landmark" or the words "Landmark Funds".
5. Limitation of Liability of the Administrator. The Administrator
shall not be liable for any error of judgment or mistake of law or for any
act or omission in the administration or management of the Trust or the
performance of its duties hereunder, except for wilful misfeasance, bad
faith or gross negligence in the performance of its duties, or by reason
of the reckless disregard of its obligations and duties hereunder. As used
in this Section 5, the term "Administrator" shall include LFBDS and/or any
of its affiliates and the Directors, officers and employees of LFBDS
and/or any of its affiliates.
6. Activities of the Administrator. The services of the Administrator
to the Trust are not to be deemed to be exclusive, LFBDS being free to
render administrative and/or other services to other parties. It is
understood that Trustees, officers, and shareholders of the Trust are or
may become interested in the Administrator and/or any of its affiliates,
as Directors, officers, employees, or otherwise, and that Directors,
officers and employees of the Administrator and/or any of its affiliates
are or may become similarly interested in the Trust and that the
Administrator and/or any of its affiliates may be or become interested in
the Trust as a shareholder or otherwise.
7. Subcontracting by LFBDS. LFBDS may subcontract for the performance
of LFBDS' obligations hereunder with any one or more persons; provided,
however, that LFBDS shall not enter into any such subcontract unless the
Trustees of the Trust shall have found the subcontracting party to be
qualified to perform the obligations sought to be subcontracted; and
provided, further, that, unless the Trust otherwise expressly agrees in
writing, LFBDS shall be as fully responsible to the Trust for the acts and
omissions of any subcontractor as it would be for its own acts or
omissions.
8. Duration and Termination of this Agreement. This Agreement shall
become effective as of the day and year first above written and shall
govern the relations between the parties hereto thereafter, and shall
remain in force until [DATE] on which date it will terminate unless its
continuance after [DATE] is "specifically approved at least annually" (a)
by the vote of a majority of the Board of Trustees of the Trust who are
not "interested persons" of the Trust or of the Administrator at a meeting
specifically called for the purpose of voting on such approval, and (b) by
the Board of Trustees of the Trust or by the "vote of a majority of the
outstanding voting securities" of the Trust or each Fund, if any, as to
which this Agreement is to continue, and provided, however, that the term
"assignment" shall include (without limitation) any sale, transfer or
conversion of a controlling interest of any class of voting stock of LFBDS
or of any entity which holds a controlling interest of any class of voting
stock of LFBDS or another such entity.
This Agreement may be terminated as to the Trust or any Fund at any time,
without the payment of any penalty, by the Board of Trustees of the Trust or by
the "vote of a majority of the outstanding voting securities" of such Trust or
Fund, or by the Administrator, in each case on not more than 60 days' nor less
than 30 days' written notice to the other party. This Agreement shall
automatically terminate in the event of its "assignment".
The terms "specifically approved at least annually", "vote of a majority
of the outstanding voting securities", "assignment", and "interested persons",
when used in this Agreement, shall have the respective meanings specified in,
and shall be construed in a manner consistent with, the 1940 Act, subject,
however, to such exemptions as may be granted by the Securities and Exchange
Commission under said Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written. The
undersigned Trustee or officer of the Trust has executed this Agreement not
individually, but as Trustee or officer under the TrustOs Declaration of Trust,
dated June 21, 1985, as amended, and the obligations of this Agreement are not
binding upon any of the Trustees, officers or shareholders of the Trust
individually, but bind only the Trust estate.
LANDMARK TAX FREE RESERVES THE LANDMARK FUNDS BROKER-
DEALER SERVICES, INC.
By: /s/Philip Coolidge By: /s/Philip Coolidge
------------------ ---------------------------
Title: President Title: Chief Executive Officer
--------------- ------------------------
<PAGE>
EXHIBIT NO. 9(C)
SUB-ADMINISTRATIVE SERVICES AGREEMENT
SUB-ADMINISTRATIVE SERVICES AGREEMENT, dated as of July 1, 1989 and amended
and restated as of April 18, 1991 by and between THE LANDMARK FUNDS
BROKER-DEALER SERVICES, INC., a Massachusetts corporation ("LFBDS" or the
"Administrator"), and CITIBANK, N.A., a national banking association ("Citibank"
or the "Sub-Administrator").
WITNESSETH:
WHEREAS, LFBDS has entered into an Administrative Services Agreement as
amended (the "Administrative Agreement") with Landmark Tax Free Reserves (the
"Trust"); and
WHEREAS, as permitted by Section 8 of the Administrative Agreement,
Citibank desires to subcontract some or all of the performance of the
Administrators obligations thereunder to Citibank, and Citibank desires to
accept such obligations; and
WHEREAS, LFBDS wishes to engage Citibank to provide certain administrative
services on the terms and conditions hereinafter set forth, so long as the
Trustees of the Landmark Funds shall have found Citibank to be qualified to
perform the obligations sought to be subcontracted.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. Duties of the Sub-Administrator. The Sub-Administrator shall perform
such administrative and management services as may from time to time be
agreed to between the Administrator and the Sub-Administrator so long as
the Trustees of the Landmark Funds shall have found the
Sub-Administrator to be qualified to perform the obligations sought to
be subcontracted, which may include (a) providing office space,
equipment and clerical personnel necessary for maintaining the
organization of the Landmark Funds and for performing the administrative
functions herein set forth; (b) participation in the preparation of
documents required for compliance by the Landmark Funds with applicable
laws and regulations, including registration statements, prospectuses,
semi-annual and annual reports to shareholders, proxy statements and tax
returns; (c) preparation of agendas and supporting documents for and
minutes of meetings of the Trustees, Committees of Trustees and
shareholders; (d)arranging for maintenance of books and records of the
Landmark Funds; and (e) any other functions or obligations permitted to
or required by the Administrator. Notwithstanding the foregoing, the
Sub-Administrator under this Agreement shall not be deemed to have
assumed any duties with respect to, and shall not be responsible for,
the management of the Trust, or the distribution of Shares of Beneficial
Interest of the Trust ("Shares"), nor shall the Sub-Administrator be
deemed to have assumed or have any responsibility with respect to
functions specifically assumed by any transfer agent, custodian or
shareholder servicing agent of the Trust.
2. Compensation of Sub-Administrator. For the services to be rendered and
the facilities to be provided by the Sub-Administrator hereunder, the
Sub-Administrator shall be paid an administrative fee as may from time
to time be agreed to between the Administrator and the
Sub-Administrator.
3. Additional Terms and Conditions. The parties may amend this agreement
and include such other terms and conditions as may from time to time be
agreed to between the Administrator and the Sub-Administrator, so long
as the Trustees of the Trust shall have found the subcontracting party
to be qualified to perform the obligations sought to be subcontracted.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
THE LANDMARK FUNDS BROKER-DEALER SERVICES, INC.
By: /s/Philip Coolidge
------------------------
Title: Chief Executive Officer
----------------------
CITIBANK, N.A.
By: /s/ Robert P. Wallace
-------------------------
Title: Vice President
-------------------------
<PAGE>
EXHIBIT NO. 9(D)(I)
FORM OF
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, by and between: (i) each of the trusts listed on the
signature page hereof or which may be added to this Agreement by execution of a
counterpart signature page hereto at a subsequent date pursuant to a vote of
such trust's Trustees (individually, the "Trust") and (ii) each national banking
association or subsidiary thereof or state chartered banking association
(individually, the "Financial Institution") listed on the signature page hereof
or which may be added to this Agreement by execution of a counterpart signature
page hereto at a subsequent date pursuant to appropriate authorization by such
Financial Institution's officers and directors, as a shareholder servicing agent
hereunder (the "Agent");
WITNESSETH:
WHEREAS, all transactions in Shares of Beneficial Interest of the Trust
or of any series now existing or later created of the Trust ("Shares") may be
made only by investors who are customers of, and using the services of, a
financial institution as defined in the then-current prospectus of the Trust,
which has entered into a shareholder servicing agreement with the Trust; and
WHEREAS, the Financial Institution wishes to make it possible for its
customers (the "Customers") to purchase Shares and wishes to act as the
Customers' agent in performing certain administrative functions in connection
with purchases, exchanges and redemptions of Shares from time to time upon the
order and for the account of Customers and to provide related services to its
Customers in connection with their investments in the Trust; and
WHEREAS, it is in the interest of the Trust to make the services of the
Agent available to Customers who are or may become shareholders of the Trust;
NOW, THEREFORE, the Trust and the Financial Institution hereby agree as
follows:
1. APPOINTMENT. The Financial Institution, as Agent, hereby agrees
to perform certain services for Customers as hereinafter set forth. The
Agent's appointment hereunder is non-exclusive, and the parties
recognize and agree that, from time to time, the Trust may enter into
other shareholder servicing agreements, in writing, with other
financial institutions.
2. SERVICE TO BE PERFORMED.
2.1 Type of Service. The Agent shall be responsible for
performing shareholder account administrative and servicing functions,
which shall include without limitation: (a) answering Customer
inquiries regarding account status and history, the manner in which
purchases, exchanges and redemptions of the Shares may be effected, and
certain other matters pertaining to the Trust; (b) assisting Customers
in designating and changing dividend options, account designations and
addresses; (c) providing necessary personnel and facilities to
establish and maintain certain shareholder accounts and records, as may
reasonably be requested from time to time by the Trust; (d) assisting
in processing purchases, exchange and redemption transactions; (e)
arranging for the wiring of funds; (f) transmitting and receiving funds
in connection with Customer orders to purchase, exchange or redeem
Shares; (g) verifying and guaranteeing Customer signatures in
connection with redemption orders, transfers among and changes in
Customer-designated accounts; (h) providing periodic statements showing
a Customer's account balances and, to the extent practicable,
integration of such information with information concerning other
client transactions otherwise effected with or through the Financial
Institution; (i) furnishing on behalf of the Trust's distributor
(either separately or on an integrated basis with other reports sent to
a Customer by the Agent) periodic statements and confirmations of all
purchases, exchanges and redemptions of Shares in a Customer's account
required by applicable federal or state law, all such confirmations and
statements to conform to Rule 10b-10 under the Securities Exchange Act
of 1934 and other applicable federal or state law; (j) transmitting
proxy statements, annual reports, updating prospectuses and other
communications from the Trust to Customers; (k) receiving, tabulating
and transmitting to the Trust proxies executed by Customers with
respect to annual and special meetings of shareholders of the Trust;
(l) providing reports (at least monthly, but more frequently if so
requested by the Trust's distributor) containing state-by-state
listings of the principal residences of the beneficial owners of the
Shares; and (m) providing such other related services as the Trust or a
Customer may reasonably request. The Agent shall provide all personnel
and facilities to perform the functions described in this paragraph
with respect to its Customers.
2.2 Standard of Services. All services to be rendered by the Agent
hereunder shall be performed in a professional, competent and timely
manner. The details of the operating standards and procedures to be
followed by the Agent in performance of the services described above
shall be determined from time to time by agreement between the Agent
and the Trust. The Trust acknowledges that the Agent's ability to
perform on a timely basis certain of its obligations under this
Agreement depends upon the Trust's timely delivery of certain materials
and/or information to the Agent. The Trust agrees to use its best
efforts to provide such materials to the Agent in a timely manner.
3. FEES.
3.1 Fees from the Trust. In consideration for the services
described in Section 2 hereof and the incurring of expenses in
connection therewith, the Agent shall receive fees to be paid in
arrears periodically (but in no event less frequently than
semi-annually) determined by agreement between the Trust and the Agent.
For purposes of determining the fees payable to the Agent hereunder,
the value of the Trust's net assets shall be computed in the manner
specified in the Trust's then-current prospectus for computation of the
net asset value of the Trust's Shares. The above fees constitute all
fees to be paid to the Agent by the Trust with respect to the
transactions contemplated hereby.
3.2 Fees from Customers. It is agreed that the Financial
Institution may impose certain conditions on Customers, in addition to
or different from those imposed by the Trust, such as requiring a
minimum initial investment or charging Customers direct fees for the
same or similar services as are provided hereunder by the Financial
Institution as Agent (which fees may either relate specifically to the
Financial Institution's services with respect to the Trust or generally
cover services not limited to those with respect to the Trust). The
Financial Institution shall bill Customers directly for such fees. In
the event the Financial Institution charges Customers such fees, it
shall notify the Trust in advance and make appropriate prior written
disclosure (such disclosure to be in accordance with all applicable
laws) to Customers of any such fees charged to the Customer. To the
extent required by applicable rules and regulations of the Securities
and Exchange Commission, the Trust shall make written disclosure of the
fees paid or to be paid to the Agent pursuant to Section 3.1 of this
Agreement. It is understood, however, that in no event shall the
Financial Institution have recourse or access as Agent or otherwise to
the account of any shareholder of the Trust except to the extent
expressly authorized by law or by such shareholder, or to any assets of
the Trust, for payment of any direct fees referred to in this Section
3.2.
4. INFORMATION PERTAINING TO THE SHARES. The Agent and its
officers, employees and agents are not authorized to make any
representations concerning the Trust or the Shares to Customers or
prospective Customers, excepting only accurate communication of any
information provided by or on behalf of any administrator of the Trust
or any distributor of the Shares or any factual information contained
in the then-current prospectus relating to the Trust or to any series
of the Trust. In furnishing such information regarding the Trust or the
Shares, the Agent shall act as agent for the Customer only and shall
have no authority to act as agent for the Trust. Advance copies or
proofs of all materials which are generally circulated or disseminated
by the Agent to Customers or prospective Customers which identify or
describe the Trust shall be provided to the Trust at least 10 days
prior to such circulation or dissemination (unless the Trust consents
in writing to a shorter period), and such materials shall not be
circulated or disseminated or further circulated or disseminated at any
time after the Trust shall have given written notice within such 10 day
period to the Agent of any objection thereto.
Nothing in this Section 4 shall be construed to make the
Trust liable for the use (as opposed to the accuracy) of any
information about the Trust which is disseminated by the Agent.
5. USE OF THE AGENT'S NAME. The Trust shall not use the name of
the Agent, (the Financial Institution or any of its affiliates or
subsidiaries) in any prospectus, sales literature or other material
relating to the Trust in a manner not approved by the Agent prior
thereto in writing; provided, however, that the approval of the Agent
shall not be required for any use of its name which merely refers in
accurate and factual terms to its appointment hereunder or which is
required by the Securities and Exchange Commission or any state
securities authority or any other appropriate regulatory, governmental
or judicial authority; provided, further, that in no event shall such
approval be unreasonably withheld or delayed.
6. USE OF THE TRUST'S NAME. The Agent shall not use the name of
the Trust on any checks, bank drafts, bank statements or forms for
other than internal use in a manner not approved by the Trust prior
thereto in writing; provided, however, that the approval of the Trust
shall not be required for the use of the Trust's name in connection
with communications permitted by Section 4 hereof or (subject to
Section 4, to the extent the same may be applicable) for any use of the
Trust's name which merely refers in accurate and factual terms to the
Trust in connection with the Agent's role hereunder or which is
required by the Securities and Exchange Commission or any state
securities authority or any other appropriate regulatory, governmental
or judicial authority; provided, further, that in no event shall such
approval be unreasonably withheld or delayed.
7. SECURITY. The Agent represents and warrants that to the best
of its knowledge, the various procedures and systems which it has
implemented (including provision for twenty-four hours a day restricted
access) with regard to safeguarding from loss or damage attributable to
fire, theft or any other cause the Trust's records and other data and
the Agent's records, data, equipment, facilities and other property
used in the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as in its
judgment are required for the secure performance of its obligations
hereunder. The parties shall review such systems and procedures on a
periodic basis, and the Trust shall from time to time specify the types
of records and other data of the Trust to be safeguarded in accordance
with this Section 7.
8. COMPLIANCE WITH LAWS. The Agent shall comply with all
applicable federal and state laws and regulations, including securities
laws. The Agent represents and warrants to the Trust that the
performance of all its obligations hereunder will comply with all
applicable laws and regulations, the provisions of its charter
documents and by-laws and all material contractual obligations binding
upon the Agent. The Agent furthermore undertakes that it will promptly,
after the Agent becomes so aware, inform the Trust of any change in
applicable laws or regulations (or interpretations thereof) or in its
charter or by-laws or material contracts which would prevent or impair
full performance of any of its obligations hereunder.
9. REPORTS. To the extent requested by the Trust from time to
time, the Agent agrees that it will provide the Treasurer of the Trust
with a written report of the amounts expended by the Agent pursuant to
this Agreement and the purposes for which such expenditures were made.
Such written reports shall be in a form satisfactory to the Trust and
shall supply all information necessary for the Trust to discharge its
responsibilities under applicable laws and regulations.
10. RECORD KEEPING.
10.1 Section 31(a). The Agent shall maintain records in a form
reasonably acceptable to the Trust and in compliance with applicable
laws and the rules and regulations of the Securities and Exchange
Commission, including but not limited to the record-keeping
requirements of Section 31(a) of the Investment Company Act of 1940, as
amended (the "1940 Act") and the rules thereunder. Such records shall
be deemed to be the property of the Trust and will be made available,
at the Trust's request, for inspection and use by the Trust,
representatives of the Trust and governmental authorities. The Agent
agrees that, for so long as it retains any records of the Trust, it
will meet all reporting requirements pursuant to the 1940 Act and
applicable to the Agent with respect to such records.
10.2 Rules 17a-3 and 17a-4. The Agent shall maintain accurate
and complete records with respect to services performed by the Agent in
connection with the purchase and redemption of Shares. Such records
shall be maintained in form reasonably acceptable to the Trust and in
compliance with the requirements of Rules 17a-3 and 17a-4 under the
Securities Exchange Act of 1934, as amended, pursuant to which any
dealer of the Shares must maintain certain records. All such records
maintained by the Agent shall be the property of such dealer and will
be made available for inspection and use by the Trust or such dealer
upon the request of either. The Agent shall file with the Securities
and Exchange Commission and other appropriate governmental authorities,
and furnish to the Trust and any such dealer copies of, all reports and
undertakings as may be reasonably requested by the Trust or such dealer
in order to comply with the said rules. If so requested by any such
dealer, the Agent shall confirm to such dealer its obligations under
this Section 10.2 by a writing reasonably satisfactory to such dealer.
10.3 Identification, Etc. of Records. The Trust shall from
time to time instruct the Agent in writing as to, and the Trust and the
Agent shall periodically review, the records to be maintained and the
procedures to be followed by the Agent in complying with the foregoing
Sections 10.1 and 10.2 and Section 8 to the extent it relates to
record-keeping required under federal securities laws and regulations.
Notwithstanding the provisions of Section 8, the Agent shall be
entitled to rely on such instructions.
10.4 Transfer of Customer Data. In the event this Agreement is
terminated or a successor to the Agent is appointed, the Agent shall,
at the expense of the Trust, transfer to such designee as the Trust may
direct a certified list of the shareholders of the Trust serviced by
the Agent (with name, address and tax identification or Social Security
number, if any), a complete record of the account of each such
shareholder and the status thereof, and all other relevant books,
records, correspondence, and other data established or maintained by
the Agent under this Agreement. In the event this Agreement is
terminated, the Agent will use its best efforts to cooperate in the
orderly transfer of such duties and responsibilities, including
assistance in the establishment of books, records and other data by the
successor.
10.5 Survival of Record-Keeping Obligations. The
record-keeping obligations imposed in this Section 10 shall survive the
termination of this Agreement for a period of three years.
10.6 Obligations Pursuant to Agreement Only. Nothing in this
Section 10 shall be construed to mean that the Agent would, by virtue
of its role hereunder, be required under applicable law to maintain the
records required to be maintained by it under this Section 10, but it
is understood that the Agent has agreed to do so in order to enable the
Trust and its dealer or dealers to comply with laws and regulations
applicable to them.
10.7 Agent's Rights to Copy Records. Anything in this Section
10 to the contrary notwithstanding, except to the extent otherwise
prohibited by law, the Agent shall have the right to copy, maintain and
use any records maintained by the Agent pursuant to this Section 10,
except as otherwise prohibited by Sections 4 and 6 hereof.
11. FORCE MAJEURE. The Agent shall not be liable or
responsible for delays or errors by reason of circumstances beyond its
reasonable control, including, but not limited to, acts of civil or
military authority, national emergencies, labor difficulties, fire,
mechanical breakdown, flood or catastrophe, Acts of God, insurrection,
war, riots or failure of communication or power supply.
12. INDEMNIFICATION.
12.1 Indemnification of the Agent. The Trust will indemnify
and hold the Agent harmless from all losses, claims, damages,
liabilities or expenses (including reasonable counsel fees and
expenses) from any claim, demand, action or suit (collectively,
"Claims") (a) arising in connection with misstatements or omissions in
the Trust's Prospectus, actions or inactions by the Trust or any of its
agents or contractors or the performance of the Agent's obligations
hereunder and (b) not resulting from (i) the bad faith or negligence of
the Agent, its officers, employees or agents, (ii) any breach of
applicable law by the Agent, its officers, employees or agents, (iii)
any action of the Agent, its officers, employees or agents which
exceeds the legal authority of the Agent or its authority hereunder, or
(iv) any error or omission of the Agent, its officers, employees or
agents with respect to the purchase, redemption and transfer of
Customers' Shares or the Agent's verification or guarantee of any
Customer signature. Notwithstanding anything herein to the contrary,
the Trust will indemnify and hold the Agent harmless from any and all
losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any Claim as a result of its
acting in accordance with any written instructions reasonably believed
by the Agent to have been executed by any person duly authorized by the
Trust, or as a result of acting in reliance upon any instrument or
stock certificate reasonably believed by the Agent to have been genuine
and signed, countersigned or executed by a person duly authorized by
the Trust, excepting only the gross negligence or bad faith of the
Agent.
In any case in which the Trust may be asked to indemnify or
hold the Agent harmless, the Trust shall be advised of all pertinent
facts concerning the situation in question and the Agent shall use
reasonable care to identify and notify the Trust promptly concerning
any situation which presents or appears likely to present a claim for
indemnification against the Trust. The Trust shall have the option to
defend the Agent against any Claim which may be the subject of
indemnification hereunder. In the event that the Trust elects to defend
against such Claim, the defense shall be conducted by counsel chosen by
the Trust and satisfactory to the Agent. The Agent may retain
additional counsel at its expense. Except with the prior written
consent of the Trust, the Agent shall not confess any Claim or make any
compromise in any case in which the Trust will be asked to indemnify
the Agent.
12.2 Indemnification of the Trust. Without limiting the rights
of the Trust under applicable law, the Agent will indemnify and hold
the Trust harmless from all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) from any
Claim (a) resulting from (i) the bad faith or negligence of the Agent,
its officers, employees or agents, (ii) any breach of applicable law by
the Agent, its officers, employees or agents, (iii) any action of the
Agent, its officers, employees or agents which exceeds the legal
authority of the Agent or its authority hereunder, or (iv) any error or
omission of the Agent, its officers, employees or agents with respect
to the purchase, redemption and transfer of Customers' Shares or the
Agent's verification or guarantee of any Customer signature, and (b)
not resulting from the Agent's actions in accordance with written
instructions reasonably believed by the Agent to have been executed by
any person duly authorized by the Trust, or in reliance upon any
instrument or stock certificate reasonably believed by the Agent to
have been genuine and signed, countersigned or executed by a person
duly authorized by the Trust.
In any case in which the Agent may be asked to indemnify or hold
the Trust harmless, the Agent shall be advised of all pertinent facts
concerning the situation in question and the Trust shall use reasonable
care to identify and notify the Agent promptly concerning any situation
which presents or appears likely to present a claim for indemnification
against the Agent. The Agent shall have the option to defend the Trust
against any Claim which may be the subject of indemnification
hereunder. In the event that the Agent elects to defend against such
Claim, the defense shall be conducted by counsel chosen by the Agent
and satisfactory to the Trust. The Trust may retain additional counsel
at its expense. Except with the prior written consent of the Agent, the
Trust shall not confess any Claim or make any compromise in any case in
which the Agent will be asked to indemnify the Trust.
12.3 Survival of Indemnities. The indemnities granted by the
parties in this Section 12 shall survive the termination of this
Agreement.
13. NOTICES. All notices or other communications hereunder to
either party shall be in writing and shall be deemed sufficient if
mailed to such party at the address of such party set forth in the
preamble of this Agreement or at such other address as such party may
have designated by written notice to the other.
14. FURTHER ASSURANCES. Each party agrees to perform such
further acts and execute such further documents as are necessary to
effectuate the purposes hereof.
15. TERMINATION. This Agreement may be terminated by the
Trust, without the payment of any penalty, at any time upon not more
than 60 days' nor less than 30 days' notice, by a vote of a majority of
the Board of Trustees of the Trust who are not "interested persons" of
the Trust (as defined in the 1940 Act) and have no direct or indirect
financial interest in the operation of the Administrative Services Plan
(the "Plan"), to which this Agreement is related, this Agreement or any
other agreement related to such Plan, or by "a vote of a majority of
the outstanding voting securities" (as defined in the 1940 Act) of the
Trust. The Agent may terminate this Agreement upon not more than 60
days' nor less than 30 days' notice to the Trust. The period of prior
notice of termination shall be reduced to the extent necessary to
comply with the effective date of any change in applicable laws or
regulations (or interpretations thereof) which prevents or impairs full
performance of the obligations set forth herein. Provided, however, in
the event such period of prior notice is reduced, the terminating party
shall give prompt notice of termination. Notwithstanding anything
herein to the contrary, but except as provided in Section 19 of this
Agreement, this Agreement may not be assigned and shall terminate
automatically without notice to either party upon any assignment. Upon
termination hereof, the Trust shall pay such compensation as may be due
the Agent as of the date of such termination.
16. CHANGES; AMENDMENTS. This Agreement may be changed or
amended only by written instrument signed by both parties.
17. LIMITATION OF SHAREHOLDER LIABILITY. The Agent hereby
agrees that obligations assumed by the Trust pursuant to this Agreement
shall be limited in all cases to the Trust and its assets and that the
Agent shall not seek satisfaction of any such obligation from the
shareholders or any shareholder of the Trust. It is further agreed that
the Agent shall not seek satisfaction of any such obligations from the
Board of Trustees or any individual Trustee of the Trust.
18. DIVIDEND PAYMENT DATES. The Trust hereby agrees, with
respect to any Trust that is a money market fund, that dividends
otherwise payable to any Customer on the last business day of each
month shall, to the extent required by the Agent, be distributed on
such other date in each month as the Agent may designate as the
dividend distribution date with respect to such Customer.
19. SUBCONTRACTING BY AGENT. The Agent may, with the written
approval of the Trust (such approval not to be unreasonably withheld or
delayed), subcontract for the performance of the Agent's obligations
hereunder with any one or more persons, including but not limited to
any one or more persons which is an affiliate of the Agent; provided,
however, that the Agent shall be as fully responsible to the Trust for
the acts and omissions of any subcontractor as it would be for its own
acts or omissions.
20. AUTHORITY TO VOTE. The Trust hereby confirms that,
pursuant to the Declaration of Trust of the Trust, at any meeting of
shareholders of the Trust or of any series of the Trust, the Agent is
authorized to vote any Shares held in accounts serviced by the Agent
and which are otherwise not represented in person or by proxy at the
meeting, proportionately in accordance with the votes cast by holders
of all Shares otherwise represented at the meeting in person or by
proxy and held in accounts serviced by the Agent.
21. COMPLIANCE WITH LAWS AND POLICIES; COOPERATION. The Trust
hereby agrees that it will comply with all laws and regulations
applicable to its operations and the Agent agrees that it will comply
with all laws and regulations applicable to its operations hereunder
and each party agrees from time to time to provide such certificates,
information and access to its books, records and personnel as the other
may reasonably request to confirm the foregoing. Each party understands
that the other may from time to time adopt or modify policies relating
to the subject matter of this Agreement, in which case the party
adopting or modifying such a policy shall notify the other thereof and
the parties shall consider the applicability thereof and endeavor to
comply therewith to the extent not impracticable or unreasonably
burdensome. Each of the parties agrees to cooperate with the other in
connection with the performance of this Agreement and the resolution of
any problems, questions or disagreements in connection herewith.
21.1 Audit. The Trust shall maintain or arrange to be
maintained complete and accurate accounting records, in accordance with
generally accepted accounting principles. The Trust shall retain or
arrange to be retained such records for a period of three years from
the termination of this Agreement. The Agent and its designated
certified public accountants shall have access to such records based on
reasonable cause and professional judgment during normal business hours
upon reasonable notice to the Trust.
21.2 Annual Financial Reports. At least once a year, the Trust
shall send to the owners of its shares and to the Agent the Trust's
audited financial statements.
21.3 Shareholder Updates. The Trust shall give the Agent
advance written notice of any change in the Trust's place of
incorporation, mailing address, management, investment objectives, fees
or redemption rights. The Trust shall give such advance notice to the
owners of its shares to the extent required by federal securities laws
or the rules and regulations of the Securities and Exchange Commission.
21.4. Annual Certification. At least once a year, the parties
shall certify to each other in writing that the certifying party is
conducting its business in accordance with the terms and conditions of
the Agreement and in the case of the Trust, in accordance with the
representations set forth in its then current prospectus.
22. MISCELLANEOUS. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the
Commonwealth of Massachusetts. The captions in this Agreement are
included for convenience of reference only and in no way define or
limit any of the provisions hereof or otherwise affect their
construction or effect. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original,
but all of which taken together shall constitute one and the same
instrument. Although this Agreement has been executed by multiple
parties, it shall be construed and enforced as a separate agreement
between each Trust and each Financial Institution acting as Agent for
such Trust. The terms of this Agreement shall become effective with
respect to each Trust and each Financial Institution listed on a
signature page hereof as of the date set forth thereon.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered in their names and on their
behalf by the undersigned, thereunto duly authorized, all as of the day
and year set forth below. The undersigned Trustee of the Trust has
executed this Agreement not individually, but as Trustee under the
Trust's Declaration of Trust, as from time to time amended, and the
obligations of this Agreement are not binding upon any of the Trustees
or shareholders of the Trust individually, but bind only the Trust
estate.
Dated as of:
---------------------------
[NAME OF TRUST] CITIBANK, N.A.
[NAME OF SERIES, IF ANY]
By: By:
------------------------------ ---------------------------
Name: Philip W. Coolidge Name:
---------------------------
Title: President Title:
---------------------------
Principal Place of Business: Principal Place of Business:
6 St. James Avenue ---------------------------
Boston, Massachusetts 02116 ---------------------------
---------------------------
SSA/NA
<PAGE>
EXHIBIT NO. 9(D)(II)
FORM OF
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, by and between: (i) each of the trusts listed on the
signature page hereof or which may be added to this Agreement by execution of a
counterpart signature page hereto at a subsequent date pursuant to a vote of
such trust's Trustees (individually, the "Trust") and (ii) each federal savings
bank (individually, the "Financial Institution") listed on the signature page
hereof or which may be added to this Agreement by execution of a counterpart
signature page hereto at a subsequent date pursuant to appropriate authorization
by such Financial Institution's officers and directors, as a shareholder
servicing agent hereunder (the "Agent");
WITNESSETH:
WHEREAS, all transactions in Shares of Beneficial Interest of the Trust
or of any series now existing or later created of the Trust ("Shares") may be
made only by investors who are customers of, and using the services of, a
financial institution as defined in the then-current prospectus of the Trust,
which has entered into a shareholder servicing agreement with the Trust; and
WHEREAS, the Financial Institution wishes to make it possible for its
customers (the "Customers") to purchase Shares and wishes to act as the
Customers' agent in performing certain administrative functions in connection
with purchases, exchanges and redemptions of Shares from time to time upon the
order and for the account of Customers and to provide related services to its
Customers in connection with their investments in the Trust; and
WHEREAS, it is in the interest of the Trust to make the services of the
Agent available to Customers who are or may become shareholders of the Trust;
NOW, THEREFORE, the Trust and the Financial Institution hereby agree as
follows:
1. APPOINTMENT. The Financial Institution, as Agent, hereby agrees
to perform certain services for Customers as hereinafter set forth. The
Agent's appointment hereunder is non-exclusive, and the parties
recognize and agree that, from time to time, the Trust may enter into
other shareholder servicing agreements, in writing, with other
financial institutions.
2. SERVICE TO BE PERFORMED.
2.1 Type of Service. The Agent shall be responsible for performing
shareholder account administrative and servicing functions, which shall
include without limitation: (a) answering Customer inquiries regarding
account status and history, the manner in which purchases, exchanges
and redemptions of the Shares may be effected, and certain other
matters pertaining to the Trust; (b) assisting Customers in designating
and changing dividend options, account designations and addresses; (c)
providing necessary personnel and facilities to establish and maintain
certain shareholder accounts and records, as may reasonably be
requested from time to time by the Trust; (d) assisting in processing
purchases, exchange and redemption transactions; (e) arranging for the
wiring of funds; (f) verifying and guaranteeing Customer signatures in
connection with redemption orders, transfers among and changes in
Customer-designated accounts; (g) providing periodic statements showing
a Customer's account balances and, to the extent practicable,
integration of such information with information concerning other
client transactions otherwise effected with or through the Financial
Institution; (h) furnishing on behalf of the Trust's distributor
(either separately or on an integrated basis with other reports sent to
a Customer by the Agent) periodic statements and confirmations of all
purchases, exchanges and redemptions of Shares in a Customer's account
required by applicable federal or state law, all such confirmations and
statements to conform to Rule 10b-10 under the Securities Exchange Act
of 1934 and other applicable federal or state law; (i) transmitting
proxy statements, annual reports, updating prospectuses and other
communications from the Trust to Customers; (j) receiving, tabulating
and transmitting to the Trust proxies executed by Customers with
respect to annual and special meetings of shareholders of the Trust;
(k) providing reports (at least monthly, but more frequently if so
requested by the Trust's distributor) containing state-by-state
listings of the principal residences of the beneficial owners of the
Shares; and (l) providing such other related services as the Trust or a
Customer may reasonably request. The Agent shall provide all personnel
and facilities to perform the functions described in this paragraph
with respect to its Customers.
2.2 Standard of Services. All services to be rendered by the Agent
hereunder shall be performed in a professional, competent and timely
manner. The details of the operating standards and procedures to be
followed by the Agent in performance of the services described above
shall be determined from time to time by agreement between the Agent
and the Trust. The Trust acknowledges that the Agent's ability to
perform on a timely basis certain of its obligations under this
Agreement depends upon the Trust's timely delivery of certain materials
and/or information to the Agent. The Trust agrees to use its best
efforts to provide such materials to the Agent in a timely manner.
3. FEES.
3.1 Fees from the Trust. In consideration for the services
described in Section 2 hereof and the incurring of expenses in
connection therewith, the Agent shall receive fees to be paid in
arrears periodically (but in no event less frequently than
semi-annually) determined by agreement between the Trust and the Agent.
For purposes of determining the fees payable to the Agent hereunder,
the value of the Trust's net assets shall be computed in the manner
specified in the Trust's then-current prospectus for computation of the
net asset value of the Trust's Shares. The above fees constitute all
fees to be paid to the Agent by the Trust with respect to the
transactions contemplated hereby.
3.2 Fees from Customers. It is agreed that the Financial
Institution may impose certain conditions on Customers, in addition to
or different from those imposed by the Trust, such as requiring a
minimum initial investment or charging Customers direct fees for the
same or similar services as are provided hereunder by the Financial
Institution as Agent (which fees may either relate specifically to the
Financial Institution's services with respect to the Trust or generally
cover services not limited to those with respect to the Trust). The
Financial Institution shall bill Customers directly for such fees. In
the event the Financial Institution charges Customers such fees, it
shall notify the Trust in advance and make appropriate prior written
disclosure (such disclosure to be in accordance with all applicable
laws) to Customers of any such fees charged to the Customer. To the
extent required by applicable rules and regulations of the Securities
and Exchange Commission, the Trust shall make written disclosure of the
fees paid or to be paid to the Agent pursuant to Section 3.1 of this
Agreement. It is understood, however, that in no event shall the
Financial Institution have recourse or access as Agent or otherwise to
the account of any shareholder of the Trust except to the extent
expressly authorized by law or by such shareholder, or to any assets of
the Trust, for payment of any direct fees referred to in this Section
3.2.
4. INFORMATION PERTAINING TO THE SHARES. The Agent and its
officers, employees and agents are not authorized to make any
representations concerning the Trust or the Shares to Customers or
prospective Customers, excepting only accurate communication of any
information provided by or on behalf of any administrator of the Trust
or any distributor of the Shares or any factual information contained
in the then-current prospectus relating to the Trust or to any series
of the Trust. In furnishing such information regarding the Trust or the
Shares, the Agent shall act as agent for the Customer only and shall
have no authority to act as agent for the Trust. Advance copies or
proofs of all materials which are generally circulated or disseminated
by the Agent to Customers or prospective Customers which identify or
describe the Trust shall be provided to the Trust at least 10 days
prior to such circulation or dissemination (unless the Trust consents
in writing to a shorter period), and such materials shall not be
circulated or disseminated or further circulated or disseminated at any
time after the Trust shall have given written notice within such 10 day
period to the Agent of any objection thereto.
Nothing in this Section 4 shall be construed to make the
Trust liable for the use (as opposed to the accuracy) of any
information about the Trust which is disseminated by the Agent.
5. USE OF THE AGENT'S NAME. The Trust shall not use the name of
the Agent, (the Financial Institution or any of its affiliates or
subsidiaries) in any prospectus, sales literature or other material
relating to the Trust in a manner not approved by the Agent prior
thereto in writing; provided, however, that the approval of the Agent
shall not be required for any use of its name which merely refers in
accurate and factual terms to its appointment hereunder or which is
required by the Securities and Exchange Commission or any state
securities authority or any other appropriate regulatory, governmental
or judicial authority; provided, further, that in no event shall such
approval be unreasonably withheld or delayed.
6. USE OF THE TRUST'S NAME. The Agent shall not use the name of
the Trust on any checks, bank drafts, bank statements or forms for
other than internal use in a manner not approved by the Trust prior
thereto in writing; provided, however, that the approval of the Trust
shall not be required for the use of the Trust's name in connection
with communications permitted by Section 4 hereof or (subject to
Section 4, to the extent the same may be applicable) for any use of the
Trust's name which merely refers in accurate and factual terms to the
Trust in connection with the Agent's role hereunder or which is
required by the Securities and Exchange Commission or any state
securities authority or any other appropriate regulatory, governmental
or judicial authority; provided, further, that in no event shall such
approval be unreasonably withheld or delayed.
7. SECURITY. The Agent represents and warrants that to the best
of its knowledge, the various procedures and systems which it has
implemented (including provision for twenty-four hours a day restricted
access) with regard to safeguarding from loss or damage attributable to
fire, theft or any other cause the Trust's records and other data and
the Agent's records, data, equipment, facilities and other property
used in the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as in its
judgment are required for the secure performance of its obligations
hereunder. The parties shall review such systems and procedures on a
periodic basis, and the Trust shall from time to time specify the types
of records and other data of the Trust to be safeguarded in accordance
with this Section 7.
8. COMPLIANCE WITH LAWS. The Agent shall comply with all
applicable federal and state laws and regulations, including securities
laws. The Agent represents and warrants to the Trust that the
performance of all its obligations hereunder will comply with all
applicable laws and regulations, the provisions of its charter
documents and by-laws and all material contractual obligations binding
upon the Agent. The Agent furthermore undertakes that it will promptly,
after the Agent becomes so aware, inform the Trust of any change in
applicable laws or regulations (or interpretations thereof) or in its
charter or by-laws or material contracts which would prevent or impair
full performance of any of its obligations hereunder.
9. REPORTS. To the extent requested by the Trust from time to
time, the Agent agrees that it will provide the Treasurer of the Trust
with a written report of the amounts expended by the Agent pursuant to
this Agreement and the purposes for which such expenditures were made.
Such written reports shall be in a form satisfactory to the Trust and
shall supply all information necessary for the Trust to discharge its
responsibilities under applicable laws and regulations.
10. RECORD KEEPING.
10.1 Section 31(a). The Agent shall maintain records in a form
reasonably acceptable to the Trust and in compliance with applicable
laws and the rules and regulations of the Securities and Exchange
Commission, including but not limited to the record-keeping
requirements of Section 31(a) of the Investment Company Act of 1940, as
amended (the "1940 Act") and the rules thereunder. Such records shall
be deemed to be the property of the Trust and will be made available,
at the Trust's request, for inspection and use by the Trust,
representatives of the Trust and governmental authorities. The Agent
agrees that, for so long as it retains any records of the Trust, it
will meet all reporting requirements pursuant to the 1940 Act and
applicable to the Agent with respect to such records.
10.2 Rules 17a-3 and 17a-4. The Agent shall maintain accurate
and complete records with respect to services performed by the Agent in
connection with the purchase and redemption of Shares. Such records
shall be maintained in form reasonably acceptable to the Trust and in
compliance with the requirements of Rules 17a-3 and 17a-4 under the
Securities Exchange Act of 1934, as amended, pursuant to which any
dealer of the Shares must maintain certain records. All such records
maintained by the Agent shall be the property of such dealer and will
be made available for inspection and use by the Trust or such dealer
upon the request of either. The Agent shall file with the Securities
and Exchange Commission and other appropriate governmental authorities,
and furnish to the Trust and any such dealer copies of, all reports and
undertakings as may be reasonably requested by the Trust or such dealer
in order to comply with the said rules. If so requested by any such
dealer, the Agent shall confirm to such dealer its obligations under
this Section 10.2 by a writing reasonably satisfactory to such dealer.
10.3 Identification, Etc. of Records. The Trust shall from
time to time instruct the Agent in writing as to, and the Trust and the
Agent shall periodically review, the records to be maintained and the
procedures to be followed by the Agent in complying with the foregoing
Sections 10.1 and 10.2 and Section 8 to the extent it relates to
record-keeping required under federal securities laws and regulations.
Notwithstanding the provisions of Section 8, the Agent shall be
entitled to rely on such instructions.
10.4 Transfer of Customer Data. In the event this Agreement is
terminated or a successor to the Agent is appointed, the Agent shall,
at the expense of the Trust, transfer to such designee as the Trust may
direct a certified list of the shareholders of the Trust serviced by
the Agent (with name, address and tax identification or Social Security
number, if any), a complete record of the account of each such
shareholder and the status thereof, and all other relevant books,
records, correspondence, and other data established or maintained by
the Agent under this Agreement. In the event this Agreement is
terminated, the Agent will use its best efforts to cooperate in the
orderly transfer of such duties and responsibilities, including
assistance in the establishment of books, records and other data by the
successor.
10.5 Survival of Record-Keeping Obligations. The
record-keeping obligations imposed in this Section 10 shall survive the
termination of this Agreement for a period of three years.
10.6 Obligations Pursuant to Agreement Only. Nothing in this
Section 10 shall be construed to mean that the Agent would, by virtue
of its role hereunder, be required under applicable law to maintain the
records required to be maintained by it under this Section 10, but it
is understood that the Agent has agreed to do so in order to enable the
Trust and its dealer or dealers to comply with laws and regulations
applicable to them.
10.7 Agent's Rights to Copy Records. Anything in this Section 10
to the contrary notwithstanding, except to the extent otherwise
prohibited by law, the Agent shall have the right to copy, maintain and
use any records maintained by the Agent pursuant to this Section 10,
except as otherwise prohibited by Sections 4 and 6 hereof.
11. FORCE MAJEURE. The Agent shall not be liable or
responsible for delays or errors by reason of circumstances beyond its
reasonable control, including, but not limited to, acts of civil or
military authority, national emergencies, labor difficulties, fire,
mechanical breakdown, flood or catastrophe, Acts of God, insurrection,
war, riots or failure of communication or power supply.
12. INDEMNIFICATION.
12.1 Indemnification of the Agent. The Trust will indemnify and
hold the Agent harmless from all losses, claims, damages, liabilities
or expenses (including reasonable counsel fees and expenses) from any
claim, demand, action or suit (collectively, "Claims") (a) arising in
connection with misstatements or omissions in the Trust's Prospectus,
actions or inactions by the Trust or any of its agents or contractors
or the performance of the Agent's obligations hereunder and (b) not
resulting from (i) the bad faith or negligence of the Agent, its
officers, employees or agents, (ii) any breach of applicable law by the
Agent, its officers, employees or agents, (iii) any action of the
Agent, its officers, employees or agents which exceeds the legal
authority of the Agent or its authority hereunder, or (iv) any error or
omission of the Agent, its officers, employees or agents with respect
to the purchase, redemption and transfer of Customers' Shares or the
Agent's verification or guarantee of any Customer signature.
Notwithstanding anything herein to the contrary, the Trust will
indemnify and hold the Agent harmless from any and all losses, claims,
damages, liabilities or expenses (including reasonable counsel fees and
expenses) resulting from any Claim as a result of its acting in
accordance with any written instructions reasonably believed by the
Agent to have been executed by any person duly authorized by the Trust,
or as a result of acting in reliance upon any instrument or stock
certificate reasonably believed by the Agent to have been genuine and
signed, countersigned or executed by a person duly authorized by the
Trust, excepting only the gross negligence or bad faith of the Agent.
In any case in which the Trust may be asked to indemnify or
hold the Agent harmless, the Trust shall be advised of all pertinent
facts concerning the situation in question and the Agent shall use
reasonable care to identify and notify the Trust promptly concerning
any situation which presents or appears likely to present a claim for
indemnification against the Trust. The Trust shall have the option to
defend the Agent against any Claim which may be the subject of
indemnification hereunder. In the event that the Trust elects to defend
against such Claim, the defense shall be conducted by counsel chosen by
the Trust and satisfactory to the Agent. The Agent may retain
additional counsel at its expense. Except with the prior written
consent of the Trust, the Agent shall not confess any Claim or make any
compromise in any case in which the Trust will be asked to indemnify
the Agent.
12.2 Indemnification of the Trust. Without limiting the rights of
the Trust under applicable law, the Agent will indemnify and hold the
Trust harmless from all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) from any
Claim (a) resulting from (i) the bad faith or negligence of the Agent,
its officers, employees or agents, (ii) any breach of applicable law by
the Agent, its officers, employees or agents, (iii) any action of the
Agent, its officers, employees or agents which exceeds the legal
authority of the Agent or its authority hereunder, or (iv) any error or
omission of the Agent, its officers, employees or agents with respect
to the purchase, redemption and transfer of Customers' Shares or the
Agent's verification or guarantee of any Customer signature, and (b)
not resulting from the Agent's actions in accordance with written
instructions reasonably believed by the Agent to have been executed by
any person duly authorized by the Trust, or in reliance upon any
instrument or stock certificate reasonably believed by the Agent to
have been genuine and signed, countersigned or executed by a person
duly authorized by the Trust.
In any case in which the Agent may be asked to indemnify or
hold the Trust harmless, the Agent shall be advised of all pertinent
facts concerning the situation in question and the Trust shall use
reasonable care to identify and notify the Agent promptly concerning
any situation which presents or appears likely to present a claim for
indemnification against the Agent. The Agent shall have the option to
defend the Trust against any Claim which may be the subject of
indemnification hereunder. In the event that the Agent elects to defend
against such Claim, the defense shall be conducted by counsel chosen by
the Agent and satisfactory to the Trust. The Trust may retain
additional counsel at its expense. Except with the prior written
consent of the Agent, the Trust shall not confess any Claim or make any
compromise in any case in which the Agent will be asked to indemnify
the Trust.
12.3 Survival of Indemnities. The indemnities granted by the
parties in this Section 12 shall survive the termination of this
Agreement.
13. NOTICES. All notices or other communications hereunder to
either party shall be in writing and shall be deemed sufficient if
mailed to such party at the address of such party set forth in the
preamble of this Agreement or at such other address as such party may
have designated by written notice to the other.
14. FURTHER ASSURANCES. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate
the purposes hereof.
15. TERMINATION. This Agreement may be terminated by the Trust,
without the payment of any penalty, at any time upon not more than 60
days' nor less than 30 days' notice, by a vote of a majority of the
Board of Trustees of the Trust who are not "interested persons" of the
Trust (as defined in the 1940 Act) and have no direct or indirect
financial interest in the operation of the Administrative Services Plan
(the "Plan"), to which this Agreement is related, this Agreement or any
other agreement related to such Plan, or by "a vote of a majority of
the outstanding voting securities" (as defined in the 1940 Act) of the
Trust. The Agent may terminate this Agreement upon not more than 60
days' nor less than 30 days' notice to the Trust. The period of prior
notice of termination shall be reduced to the extent necessary to
comply with the effective date of any change in applicable laws or
regulations (or interpretations thereof) which prevents or impairs full
performance of the obligations set forth herein. Provided, however, in
the event such period of prior notice is reduced, the terminating party
shall give prompt notice of termination. Notwithstanding anything
herein to the contrary, but except as provided in Section 19 of this
Agreement, this Agreement may not be assigned and shall terminate
automatically without notice to either party upon any assignment. Upon
termination hereof, the Trust shall pay such compensation as may be due
the Agent as of the date of such termination.
16. CHANGES; AMENDMENTS. This Agreement may be changed or
amended only by written instrument signed by both parties.
17. LIMITATION OF SHAREHOLDER LIABILITY. The Agent hereby agrees
that obligations assumed by the Trust pursuant to this Agreement shall
be limited in all cases to the Trust and its assets and that the Agent
shall not seek satisfaction of any such obligation from the
shareholders or any shareholder of the Trust. It is further agreed that
the Agent shall not seek satisfaction of any such obligations from the
Board of Trustees or any individual Trustee of the Trust.
18. DIVIDEND PAYMENT DATES. The Trust hereby agrees, with respect
to any Trust that is a money market fund, that dividends otherwise
payable to any Customer on the last business day of each month shall,
to the extent required by the Agent, be distributed on such other date
in each month as the Agent may designate as the dividend distribution
date with respect to such Customer.
19. SUBCONTRACTING BY AGENT. The Agent may, with the written
approval of the Trust (such approval not to be unreasonably withheld or
delayed), subcontract for the performance of the Agent's obligations
hereunder with any one or more persons, including but not limited to
any one or more persons which is an affiliate of the Agent; provided,
however, that the Agent shall be as fully responsible to the Trust for
the acts and omissions of any subcontractor as it would be for its own
acts or omissions.
20. AUTHORITY TO VOTE. The Trust hereby confirms that, pursuant to
the Declaration of Trust of the Trust, at any meeting of shareholders
of the Trust or of any series of the Trust, the Agent is authorized to
vote any Shares held in accounts serviced by the Agent and which are
otherwise not represented in person or by proxy at the meeting,
proportionately in accordance with the votes cast by holders of all
Shares otherwise represented at the meeting in person or by proxy and
held in accounts serviced by the Agent.
21. COMPLIANCE WITH LAWS AND POLICIES; COOPERATION. The Trust
hereby agrees that it will comply with all laws and regulations
applicable to its operations and the Agent agrees that it will comply
with all laws and regulations applicable to its operations hereunder
and each party agrees from time to time to provide such certificates,
information and access to its books, records and personnel as the other
may reasonably request to confirm the foregoing. Each party understands
that the other may from time to time adopt or modify policies relating
to the subject matter of this Agreement, in which case the party
adopting or modifying such a policy shall notify the other thereof and
the parties shall consider the applicability thereof and endeavor to
comply therewith to the extent not impracticable or unreasonably
burdensome. Each of the parties agrees to cooperate with the other in
connection with the performance of this Agreement and the resolution of
any problems, questions or disagreements in connection herewith.
21.1 Audit. The Trust shall maintain or arrange to be maintained
complete and accurate accounting records, in accordance with generally
accepted accounting principles. The Trust shall retain or arrange to be
retained such records for a period of three years from the termination
of this Agreement. The Agent and its designated certified public
accountants shall have access to such records based on reasonable cause
and professional judgment during normal business hours upon reasonable
notice to the Trust.
21.2 Annual Financial Reports. At least once a year, the Trust
shall send to the owners of its shares and to the Agent the Trust's
audited financial statements.
21.3 Shareholder Updates. The Trust shall give the Agent advance
written notice of any change in the Trust's place of incorporation,
mailing address, management, investment objectives, fees or redemption
rights. The Trust shall give such advance notice to the owners of its
shares to the extent required by federal securities laws or the rules
and regulations of the Securities and Exchange Commission.
21.4. Annual Certification. At least once a year, the parties
shall certify to each other in writing that the certifying party is
conducting its business in accordance with the terms and conditions of
the Agreement and in the case of the Trust, in accordance with the
representations set forth in its then current prospectus.
22. MISCELLANEOUS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the Commonwealth of
Massachusetts. The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
Although this Agreement has been executed by multiple parties, it shall
be construed and enforced as a separate agreement between each Trust
and each Financial Institution acting as Agent for such Trust. The
terms of this Agreement shall become effective with respect to each
Trust and each Financial Institution listed on a signature page hereof
as of the date set forth thereon.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered in their names and on their behalf by the
undersigned, thereunto duly authorized, all as of the day and year set
forth below. The undersigned Trustee of the Trust has executed this
Agreement not individually, but as Trustee under the Trust's
Declaration of Trust, as from time to time amended, and the obligations
of this Agreement are not binding upon any of the Trustees or
shareholders of the Trust individually, but bind only the Trust estate.
Dated as of:
---------------------------
[NAME OF TRUST] CITIBANK, N.A.
[NAME OF SERIES, IF ANY]
By: By:
------------------------------ ---------------------------
Name: Philip W. Coolidge Name:
---------------------------
Title: President Title:
---------------------------
Principal Place of Business: Principal Place of Business:
6 St. James Avenue ---------------------------
Boston, Massachusetts 02116 ---------------------------
---------------------------
SSA/FSB
<PAGE>
EXHIBIT NO. 9(D)(III)
FORM OF
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, by and between: (i) each of the trusts listed on the
signature page hereof or which may be added to this Agreement by execution of a
counterpart signature page hereto at a subsequent date pursuant to a vote of
such trust's Trustees (individually, the "Trust") and (ii) The Landmark Funds
Broker-Dealer Services, Inc. (the "Financial Institution"), a Massachusetts
corporation, with its principal place of business at 6 St. James Avenue, Boston,
Massachusetts 02116, as a shareholder servicing agent hereunder (the "Agent");
WITNESSETH:
WHEREAS, all transactions in Shares of Beneficial Interest of the Trust
or of any series now existing or later created of the Trust ("Shares") may be
made only by investors who are customers of, and using the services of, a
financial institution as defined in the then-current prospectus of the Trust,
which has entered into a shareholder servicing agreement with the Trust; and
WHEREAS, the Financial Institution wishes to make it possible for its
customers (the "Customers") to purchase Shares and wishes to act as the
Customers' agent in performing certain administrative functions in connection
with purchases, exchanges and redemptions of Shares from time to time upon the
order and for the account of Customers and to provide related services to its
Customers in connection with their investments in the Trust; and
WHEREAS, it is in the interest of the Trust to make the services of the
Agent available to Customers who are or may become shareholders of the Trust;
NOW, THEREFORE, the Trust and the Financial Institution hereby agree as
follows:
1. APPOINTMENT. The Financial Institution, as Agent, hereby agrees
to perform certain services for Customers as hereinafter set forth. The
Agent's appointment hereunder is non-exclusive, and the parties
recognize and agree that, from time to time, the Trust may enter into
other shareholder servicing agreements, in writing, with other
financial institutions.
2. SERVICE TO BE PERFORMED.
2.1 Type of Service. The Agent shall be responsible for performing
shareholder account administrative and servicing functions, which shall
include without limitation: (a) answering Customer inquiries regarding
account status and history, the manner in which purchases, exchanges
and redemptions of the Shares may be effected, and certain other
matters pertaining to the Trust; (b) assisting Customers in designating
and changing dividend options, account designations and addresses; (c)
providing necessary personnel and facilities to establish and maintain
certain shareholder accounts and records, as may reasonably be
requested from time to time by the Trust; (d) assisting in processing
purchases, exchange and redemption transactions; (e) arranging for the
wiring of funds; (f) transmitting and receiving funds in connection
with Customer orders to purchase, exchange or redeem Shares; (g)
verifying and guaranteeing Customer signatures in connection with
redemption orders, transfers among and changes in Customer-designated
accounts; (h) providing periodic statements showing a Customer's
account balances and, to the extent practicable, integration of such
information with information concerning other client transactions
otherwise effected with or through the Financial Institution; (i)
furnishing on behalf of the Trust's distributor (either separately or
on an integrated basis with other reports sent to a Customer by the
Agent) periodic statements and confirmations of all purchases,
exchanges and redemptions of Shares in a Customer's account required by
applicable federal or state law, all such confirmations and statements
to conform to Rule 10b-10 under the Securities Exchange Act of 1934 and
other applicable federal or state law; (j) transmitting proxy
statements, annual reports, updating prospectuses and other
communications from the Trust to Customers; (k) receiving, tabulating
and transmitting to the Trust proxies executed by Customers with
respect to annual and special meetings of shareholders of the Trust;
(l) providing reports (at least monthly, but more frequently if so
requested by the Trust's distributor) containing state-by-state
listings of the principal residences of the beneficial owners of the
Shares; and (m) providing such other related services as the Trust or a
Customer may reasonably request. The Agent shall provide all personnel
and facilities to perform the functions described in this paragraph
with respect to its Customers.
2.2 Standard of Services. All services to be rendered by the Agent
hereunder shall be performed in a professional, competent and timely
manner. The details of the operating standards and procedures to be
followed by the Agent in performance of the services described above
shall be determined from time to time by agreement between the Agent
and the Trust. The Trust acknowledges that the Agent's ability to
perform on a timely basis certain of its obligations under this
Agreement depends upon the Trust's timely delivery of certain materials
and/or information to the Agent. The Trust agrees to use its best
efforts to provide such materials to the Agent in a timely manner.
3. FEES.
3.1 Fees from the Trust. In consideration for the services
described in Section 2 hereof and the incurring of expenses in
connection therewith, the Agent shall receive fees to be paid in
arrears periodically (but in no event less frequently than
semi-annually) determined by agreement between the Trust and the Agent.
For purposes of determining the fees payable to the Agent hereunder,
the value of the Trust's net assets shall be computed in the manner
specified in the Trust's then-current prospectus for computation of the
net asset value of the Trust's Shares. The above fees constitute all
fees to be paid to the Agent by the Trust with respect to the
transactions contemplated hereby.
3.2 Fees from Customers. It is agreed that the Financial
Institution may impose certain conditions on Customers, in addition to
or different from those imposed by the Trust, such as requiring a
minimum initial investment or charging Customers direct fees for the
same or similar services as are provided hereunder by the Financial
Institution as Agent (which fees may either relate specifically to the
Financial Institution's services with respect to the Trust or generally
cover services not limited to those with respect to the Trust). The
Financial Institution shall bill Customers directly for such fees. In
the event the Financial Institution charges Customers such fees, it
shall notify the Trust in advance and make appropriate prior written
disclosure (such disclosure to be in accordance with all applicable
laws) to Customers of any such fees charged to the Customer. To the
extent required by applicable rules and regulations of the Securities
and Exchange Commission, the Trust shall make written disclosure of the
fees paid or to be paid to the Agent pursuant to Section 3.1 of this
Agreement. It is understood, however, that in no event shall the
Financial Institution have recourse or access as Agent or otherwise to
the account of any shareholder of the Trust except to the extent
expressly authorized by law or by such shareholder, or to any assets of
the Trust, for payment of any direct fees referred to in this Section
3.2.
4. INFORMATION PERTAINING TO THE SHARES. The Agent and its
officers, employees and agents are not authorized to make any
representations concerning the Trust or the Shares to Customers or
prospective Customers, excepting only accurate communication of any
information provided by or on behalf of any administrator of the Trust
or any distributor of the Shares or any factual information contained
in the then-current prospectus relating to the Trust or to any series
of the Trust. In furnishing such information regarding the Trust or the
Shares, the Agent shall act as agent for the Customer only and shall
have no authority to act as agent for the Trust. Advance copies or
proofs of all materials which are generally circulated or disseminated
by the Agent to Customers or prospective Customers which identify or
describe the Trust shall be provided to the Trust at least 10 days
prior to such circulation or dissemination (unless the Trust consents
in writing to a shorter period), and such materials shall not be
circulated or disseminated or further circulated or disseminated at any
time after the Trust shall have given written notice within such 10 day
period to the Agent of any objection thereto.
Nothing in this Section 4 shall be construed to make the Trust
liable for the use (as opposed to the accuracy) of any information
about the Trust which is disseminated by the Agent.
5. USE OF THE AGENT'S NAME. The Trust shall not use the name of
the Agent, (the Financial Institution or any of its affiliates or
subsidiaries) in any prospectus, sales literature or other material
relating to the Trust in a manner not approved by the Agent prior
thereto in writing; provided, however, that the approval of the Agent
shall not be required for any use of its name which merely refers in
accurate and factual terms to its appointment hereunder or which is
required by the Securities and Exchange Commission or any state
securities authority or any other appropriate regulatory, governmental
or judicial authority; provided, further, that in no event shall such
approval be unreasonably withheld or delayed.
6. USE OF THE TRUST'S NAME. The Agent shall not use the name of
the Trust on any checks, bank drafts, bank statements or forms for
other than internal use in a manner not approved by the Trust prior
thereto in writing; provided, however, that the approval of the Trust
shall not be required for the use of the Trust's name in connection
with communications permitted by Section 4 hereof or (subject to
Section 4, to the extent the same may be applicable) for any use of the
Trust's name which merely refers in accurate and factual terms to the
Trust in connection with the Agent's role hereunder or which is
required by the Securities and Exchange Commission or any state
securities authority or any other appropriate regulatory, governmental
or judicial authority; provided, further, that in no event shall such
approval be unreasonably withheld or delayed.
7. SECURITY. The Agent represents and warrants that to the best
of its knowledge, the various procedures and systems which it has
implemented (including provision for twenty-four hours a day restricted
access) with regard to safeguarding from loss or damage attributable to
fire, theft or any other cause the Trust's records and other data and
the Agent's records, data, equipment, facilities and other property
used in the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as in its
judgment are required for the secure performance of its obligations
hereunder. The parties shall review such systems and procedures on a
periodic basis, and the Trust shall from time to time specify the types
of records and other data of the Trust to be safeguarded in accordance
with this Section 7.
8. COMPLIANCE WITH LAWS. The Agent shall comply with all
applicable federal and state laws and regulations, including securities
laws. The Agent represents and warrants to the Trust that the
performance of all its obligations hereunder will comply with all
applicable laws and regulations, the provisions of its charter
documents and by-laws and all material contractual obligations binding
upon the Agent. The Agent furthermore undertakes that it will promptly,
after the Agent becomes so aware, inform the Trust of any change in
applicable laws or regulations (or interpretations thereof) or in its
charter or by-laws or material contracts which would prevent or impair
full performance of any of its obligations hereunder.
9. REPORTS. To the extent requested by the Trust from time to
time, the Agent agrees that it will provide the Treasurer of the Trust
with a written report of the amounts expended by the Agent pursuant to
this Agreement and the purposes for which such expenditures were made.
Such written reports shall be in a form satisfactory to the Trust and
shall supply all information necessary for the Trust to discharge its
responsibilities under applicable laws and regulations.
10. RECORD KEEPING.
10.1 Section 31(a). The Agent shall maintain records in a form
reasonably acceptable to the Trust and in compliance with applicable
laws and the rules and regulations of the Securities and Exchange
Commission, including but not limited to the record-keeping
requirements of Section 31(a) of the Investment Company Act of 1940, as
amended (the "1940 Act") and the rules thereunder. Such records shall
be deemed to be the property of the Trust and will be made available,
at the Trust's request, for inspection and use by the Trust,
representatives of the Trust and governmental authorities. The Agent
agrees that, for so long as it retains any records of the Trust, it
will meet all reporting requirements pursuant to the 1940 Act and
applicable to the Agent with respect to such records.
10.2 Rules 17a-3 and 17a-4. The Agent shall maintain accurate
and complete records with respect to services performed by the Agent in
connection with the purchase and redemption of Shares. Such records
shall be maintained in form reasonably acceptable to the Trust and in
compliance with the requirements of Rules 17a-3 and 17a-4 under the
Securities Exchange Act of 1934, as amended, pursuant to which any
dealer of the Shares must maintain certain records. All such records
maintained by the Agent shall be the property of such dealer and will
be made available for inspection and use by the Trust or such dealer
upon the request of either. The Agent shall file with the Securities
and Exchange Commission and other appropriate governmental authorities,
and furnish to the Trust and any such dealer copies of, all reports and
undertakings as may be reasonably requested by the Trust or such dealer
in order to comply with the said rules. If so requested by any such
dealer, the Agent shall confirm to such dealer its obligations under
this Section 10.2 by a writing reasonably satisfactory to such dealer.
10.3 Identification, Etc. of Records. The Trust shall from
time to time instruct the Agent in writing as to, and the Trust and the
Agent shall periodically review, the records to be maintained and the
procedures to be followed by the Agent in complying with the foregoing
Sections 10.1 and 10.2 and Section 8 to the extent it relates to
record-keeping required under federal securities laws and regulations.
Notwithstanding the provisions of Section 8, the Agent shall be
entitled to rely on such instructions.
10.4 Transfer of Customer Data. In the event this Agreement is
terminated or a successor to the Agent is appointed, the Agent shall,
at the expense of the Trust, transfer to such designee as the Trust may
direct a certified list of the shareholders of the Trust serviced by
the Agent (with name, address and tax identification or Social Security
number, if any), a complete record of the account of each such
shareholder and the status thereof, and all other relevant books,
records, correspondence, and other data established or maintained by
the Agent under this Agreement. In the event this Agreement is
terminated, the Agent will use its best efforts to cooperate in the
orderly transfer of such duties and responsibilities, including
assistance in the establishment of books, records and other data by the
successor.
10.5 Survival of Record-Keeping Obligations. The record-keeping
obligations imposed in this Section 10 shall survive the termination of
this Agreement for a period of three years.
10.6 Obligations Pursuant to Agreement Only. Nothing in this
Section 10 shall be construed to mean that the Agent would, by virtue
of its role hereunder, be required under applicable law to maintain the
records required to be maintained by it under this Section 10, but it
is understood that the Agent has agreed to do so in order to enable the
Trust and its dealer or dealers to comply with laws and regulations
applicable to them.
10.7 Agent's Rights to Copy Records. Anything in this Section 10
to the contrary notwithstanding, except to the extent otherwise
prohibited by law, the Agent shall have the right to copy, maintain and
use any records maintained by the Agent pursuant to this Section 10,
except as otherwise prohibited by Sections 4 and 6 hereof.
11. FORCE MAJEURE. The Agent shall not be liable or
responsible for delays or errors by reason of circumstances beyond its
reasonable control, including, but not limited to, acts of civil or
military authority, national emergencies, labor difficulties, fire,
mechanical breakdown, flood or catastrophe, Acts of God, insurrection,
war, riots or failure of communication or power supply.
12. INDEMNIFICATION.
12.1 Indemnification of the Agent. The Trust will indemnify
and hold the Agent harmless from all losses, claims, damages,
liabilities or expenses (including reasonable counsel fees and
expenses) from any claim, demand, action or suit (collectively,
"Claims") (a) arising in connection with misstatements or omissions in
the Trust's Prospectus, actions or inactions by the Trust or any of its
agents or contractors or the performance of the Agent's obligations
hereunder and (b) not resulting from (i) the bad faith or negligence of
the Agent, its officers, employees or agents, (ii) any breach of
applicable law by the Agent, its officers, employees or agents, (iii)
any action of the Agent, its officers, employees or agents which
exceeds the legal authority of the Agent or its authority hereunder, or
(iv) any error or omission of the Agent, its officers, employees or
agents with respect to the purchase, redemption and transfer of
Customers' Shares or the Agent's verification or guarantee of any
Customer signature. Notwithstanding anything herein to the contrary,
the Trust will indemnify and hold the Agent harmless from any and all
losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any Claim as a result of its
acting in accordance with any written instructions reasonably believed
by the Agent to have been executed by any person duly authorized by the
Trust, or as a result of acting in reliance upon any instrument or
stock certificate reasonably believed by the Agent to have been genuine
and signed, countersigned or executed by a person duly authorized by
the Trust, excepting only the gross negligence or bad faith of the
Agent.
In any case in which the Trust may be asked to indemnify or hold
the Agent harmless, the Trust shall be advised of all pertinent facts
concerning the situation in question and the Agent shall use reasonable
care to identify and notify the Trust promptly concerning any situation
which presents or appears likely to present a claim for indemnification
against the Trust. The Trust shall have the option to defend the Agent
against any Claim which may be the subject of indemnification
hereunder. In the event that the Trust elects to defend against such
Claim, the defense shall be conducted by counsel chosen by the Trust
and satisfactory to the Agent. The Agent may retain additional counsel
at its expense. Except with the prior written consent of the Trust, the
Agent shall not confess any Claim or make any compromise in any case in
which the Trust will be asked to indemnify the Agent.
12.2 Indemnification of the Trust. Without limiting the rights
of the Trust under applicable law, the Agent will indemnify and hold
the Trust harmless from all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) from any
Claim (a) resulting from (i) the bad faith or negligence of the Agent,
its officers, employees or agents, (ii) any breach of applicable law by
the Agent, its officers, employees or agents, (iii) any action of the
Agent, its officers, employees or agents which exceeds the legal
authority of the Agent or its authority hereunder, or (iv) any error or
omission of the Agent, its officers, employees or agents with respect
to the purchase, redemption and transfer of Customers' Shares or the
Agent's verification or guarantee of any Customer signature, and (b)
not resulting from the Agent's actions in accordance with written
instructions reasonably believed by the Agent to have been executed by
any person duly authorized by the Trust, or in reliance upon any
instrument or stock certificate reasonably believed by the Agent to
have been genuine and signed, countersigned or executed by a person
duly authorized by the Trust.
In any case in which the Agent may be asked to indemnify or hold
the Trust harmless, the Agent shall be advised of all pertinent facts
concerning the situation in question and the Trust shall use reasonable
care to identify and notify the Agent promptly concerning any situation
which presents or appears likely to present a claim for indemnification
against the Agent. The Agent shall have the option to defend the Trust
against any Claim which may be the subject of indemnification
hereunder. In the event that the Agent elects to defend against such
Claim, the defense shall be conducted by counsel chosen by the Agent
and satisfactory to the Trust. The Trust may retain additional counsel
at its expense. Except with the prior written consent of the Agent, the
Trust shall not confess any Claim or make any compromise in any case in
which the Agent will be asked to indemnify the Trust.
12.3 Survival of Indemnities. The indemnities granted by the
parties in this Section 12 shall survive the termination of this
Agreement.
13. NOTICES. All notices or other communications hereunder to
either party shall be in writing and shall be deemed sufficient if
mailed to such party at the address of such party set forth in the
preamble of this Agreement or at such other address as such party may
have designated by written notice to the other.
14. FURTHER ASSURANCES. Each party agrees to perform such
further acts and execute such further documents as are necessary to
effectuate the purposes hereof.
15. TERMINATION. This Agreement may be terminated by the
Trust, without the payment of any penalty, at any time upon not more
than 60 days' nor less than 30 days' notice, by a vote of a majority of
the Board of Trustees of the Trust who are not "interested persons" of
the Trust (as defined in the 1940 Act) and have no direct or indirect
financial interest in the operation of the Administrative Services Plan
(the "Plan"), to which this Agreement is related, this Agreement or any
other agreement related to such Plan, or by "a vote of a majority of
the outstanding voting securities" (as defined in the 1940 Act) of the
Trust. The Agent may terminate this Agreement upon not more than 60
days' nor less than 30 days' notice to the Trust. The period of prior
notice of termination shall be reduced to the extent necessary to
comply with the effective date of any change in applicable laws or
regulations (or interpretations thereof) which prevents or impairs full
performance of the obligations set forth herein. Provided, however, in
the event such period of prior notice is reduced, the terminating party
shall give prompt notice of termination. Notwithstanding anything
herein to the contrary, but except as provided in Section 19 of this
Agreement, this Agreement may not be assigned and shall terminate
automatically without notice to either party upon any assignment. Upon
termination hereof, the Trust shall pay such compensation as may be due
the Agent as of the date of such termination.
16. CHANGES; AMENDMENTS. This Agreement may be changed or
amended only by written instrument signed by both parties.
17. LIMITATION OF SHAREHOLDER LIABILITY. The Agent hereby
agrees that obligations assumed by the Trust pursuant to this Agreement
shall be limited in all cases to the Trust and its assets and that the
Agent shall not seek satisfaction of any such obligation from the
shareholders or any shareholder of the Trust. It is further agreed that
the Agent shall not seek satisfaction of any such obligations from the
Board of Trustees or any individual Trustee of the Trust.
18. DIVIDEND PAYMENT DATES. The Trust hereby agrees, with
respect to any Trust that is a money market fund, that dividends
otherwise payable to any Customer on the last business day of each
month shall, to the extent required by the Agent, be distributed on
such other date in each month as the Agent may designate as the
dividend distribution date with respect to such Customer.
19. SUBCONTRACTING BY AGENT. The Agent may, with the written
approval of the Trust (such approval not to be unreasonably withheld or
delayed), subcontract for the performance of the Agent's obligations
hereunder with any one or more persons, including but not limited to
any one or more persons which is an affiliate of the Agent; provided,
however, that the Agent shall be as fully responsible to the Trust for
the acts and omissions of any subcontractor as it would be for its own
acts or omissions. The Trust hereby approves the use of Boston Data
Financial Services, Inc. as a subcontractor of the Agent hereunder.
20. AUTHORITY TO VOTE. The Trust hereby confirms that,
pursuant to the Declaration of Trust of the Trust, at any meeting of
shareholders of the Trust or of any series of the Trust, the Agent is
authorized to vote any Shares held in accounts serviced by the Agent
and which are otherwise not represented in person or by proxy at the
meeting, proportionately in accordance with the votes cast by holders
of all Shares otherwise represented at the meeting in person or by
proxy and held in accounts serviced by the Agent.
21. COMPLIANCE WITH LAWS AND POLICIES; COOPERATION. The Trust
hereby agrees that it will comply with all laws and regulations
applicable to its operations and the Agent agrees that it will comply
with all laws and regulations applicable to its operations hereunder
and each party agrees from time to time to provide such certificates,
information and access to its books, records and personnel as the other
may reasonably request to confirm the foregoing. Each party understands
that the other may from time to time adopt or modify policies relating
to the subject matter of this Agreement, in which case the party
adopting or modifying such a policy shall notify the other thereof and
the parties shall consider the applicability thereof and endeavor to
comply therewith to the extent not impracticable or unreasonably
burdensome. Each of the parties agrees to cooperate with the other in
connection with the performance of this Agreement and the resolution of
any problems, questions or disagreements in connection herewith.
21.1 Audit. The Trust shall maintain or arrange to be
maintained complete and accurate accounting records, in accordance with
generally accepted accounting principles. The Trust shall retain or
arrange to be retained such records for a period of three years from
the termination of this Agreement. The Agent and its designated
certified public accountants shall have access to such records based on
reasonable cause and professional judgment during normal business hours
upon reasonable notice to the Trust.
21.2 Annual Financial Reports. At least once a year, the Trust
shall send to the owners of its shares and to the Agent the Trust's
audited financial statements.
21.3 Shareholder Updates. The Trust shall give the Agent
advance written notice of any change in the Trust's place of
incorporation, mailing address, management, investment objectives, fees
or redemption rights. The Trust shall give such advance notice to the
owners of its shares to the extent required by federal securities laws
or the rules and regulations of the Securities and Exchange Commission.
21.4. Annual Certification. At least once a year, the parties
shall certify to each other in writing that the certifying party is
conducting its business in accordance with the terms and conditions of
the Agreement and in the case of the Trust, in accordance with the
representations set forth in its then current prospectus.
22. MISCELLANEOUS. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the
Commonwealth of Massachusetts. The captions in this Agreement are
included for convenience of reference only and in no way define or
limit any of the provisions hereof or otherwise affect their
construction or effect. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original,
but all of which taken together shall constitute one and the same
instrument. Although this Agreement has been executed by multiple
parties, it shall be construed and enforced as a separate agreement
between each Trust and the Financial Institution acting as Agent for
such Trust. The terms of this Agreement shall become effective with
respect to each Trust and the Financial Institution listed on a
signature page hereof as of the date set forth thereon.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered in their names and on their behalf by the
undersigned, thereunto duly authorized, all as of the day and year set
forth below. The undersigned officer of the Trust has executed this
Agreement not individually, but as an officer of the Trust pursuant to
the Trust's Declaration of Trust, as from time to time amended, and the
obligations of this Agreement are not binding upon any of the Trustees,
officers or shareholders of the Trust individually, but bind only the
Trust estate.
Dated as of:
---------------------------
[NAME OF TRUST] THE LANDMARK FUNDS BROKER-
[NAME OF SERIES, IF ANY] DEALER SERVICES, INC.
By: By:
------------------------------- -------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------- -------------------------------
Principal Place of Business: Principal Place of Business:
6 St. James Avenue 6 St. James Avenue
Boston, Massachusetts 02116 Boston, Massachusetts 02116
SSA/LFBDS
<PAGE>
EXHIBIT NO. 9(E)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE LANDMARK FUNDS TAX-FREE RESERVES
and
STATE STREET BANK AND TRUST COMPANY
<PAGE>
TABLE OF CONTENTS
Page
Article 1 Terms of Appointment; Duties of the Bank........l
Article 2 Fees and Expenses...............................4
Article 3 Representations and Warranties of the Bank......4
Article 4 Representations and Warranties of the Trust.....5
Article 5 Indemnification.................................5
Article 6 Covenants of the Trust and the Bank.............8
Article 7 Termination of Agreement.......................10
Article 8 Assignment.....................................10
Article 9 Amendment......................................11
Article 10 Massachusetts Law to Apply.....................11
Article 11 Merger of Agreement............................11
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 20th day of August, 1985, by and between THE
LANDMARK FUNDS TAX-FREE RESERVES, a Massachusetts business trust, having its
principal office and place of business at 200 Berkeley Street, Boston,
Massachusetts 02116 (the "Trust"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company having its principal office and place of business at
225 Franklin Street, Boston, Massachusetts 02110 (the "Bank").
WHEREAS, the Trust desires to appoint the Bank as its transfer agent, and
dividend disbursing agent, and the Bank desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
Article 1 Terms of Appointment; Duties of the Bank
1.01 Subject to the terms and conditions set forth in this Agreement, the
Trust hereby employs and appoints the Bank to act as, and the Bank agrees to
act, as the Trust's transfer agent for the Trust's authorized and issued Shares
of beneficial interest ("Shares"), and dividend disbursing agent.
1.02 The Bank agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Trust and the Bank, the Bank shall:
(i) receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation therefor
to the Custodian of the Trust (the "Custodian");
(ii) pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate account of a
Shareholder of the Trust ("Shareholder");
(iii) receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation therefor to
the Custodian;
(iv) at the appropriate time as and when it receives monies paid to it
by the Custodian with respect to any redemption, pay over or
cause to be paid over in the appropriate manner such monies as
instructed by or on behalf of the redeeming Shareholders;
(v) effect transfers of Shares by or on behalf of the registered
owners thereof upon receipt of appropriate instructions;
(vi) prepare and transmit payments for dividends and distributions
declared by the Trust; and
(vii) maintain records of account for and advise the Trust and its
Shareholders as to the foregoing.
(b) In addition to and not in lieu of the services set forth in the above
paragraph (a), the Bank shall: (i) perform all of the customary services of a
transfer agent and dividend disbursing agent, including but not limited to:
maintaining all Shareholder accounts, preparing Shareholder meeting lists,
mailing proxies, receiving and tabulating proxies, mailing Shareholder reports
and prospectuses to current Shareholders, withholding taxes on non-resident
alien accounts, preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect to dividends and distributions by
federal authorities for all Shareholders, preparing and mailing confirmation
forms and statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in Shareholder
accounts, preparing and mailing activity statements for Shareholders, and
providing Shareholder account information and (ii) provide a system which will
enable the Trust to monitor the total number of Shares sold in each State. The
Trust shall (i) identify to the Bank in writing those transactions and assets to
be treated as exempt from blue sky reporting for each State and (ii) verify the
establishment of transactions for each State on the system prior to activation
and thereafter monitor the daily activity for each State. The responsibility of
the Bank for the Trust's blue sky State registration status is solely limited to
the initial establishment of transactions subject to blue sky compliance by the
Trust and the reporting of such transactions to the Trust as provided above.
Procedures applicable to certain of these services may be established from
time to time by agreement between the Trust and the Bank.
Article 2 Fees and Expenses
2.01 For performance by the Bank pursuant to this Agreement, the Trust
agrees to pay the Bank an annual maintenance fee for each Shareholder account as
set out in the initial fee schedule attached hereto. Such fees and out-of-pocket
expenses and advances identified under Section 2.02 below may be changed from
time to time subject to mutual written agreement between the Trust and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the Trust agrees
to reimburse the Bank for out-of-pocket expenses or advances incurred by the
Bank for the items set out in the fee schedule attached hereto. In addition, any
other expenses incurred by the Bank at the request or with the consent of the
Trust, will be reimbursed by the Trust.
2.03 The Trust agrees to pay all fees and reimbursable expenses within five
days following the mailing of the respective billing notice. Postage for mailing
of dividends, proxies, Trust reports and other mailings to all shareholder
accounts shall be advanced to the Bank by the Trust at least seven (7) days
prior to the mailing date of such materials.
Article 3 Representations and Warranties of the Bank
The Bank represents and warrants to the Trust that:
3.01 It is a corporation duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
3.03 It is empowered under applicable laws and by its charter and by-laws
to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
Article 4 Representations and Warranties of the Trust
The Trust represents and warrants to the Bank that;
4.01 It is a business trust duly organized and existing under the laws of
the Commonwealth of Massachusetts.
4.02 It is empowered under applicable laws and by its Declaration of Trust
and By-Laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
4.04 It is an open-end management investment company registered under the
Investment Company Act of 1940.
4.05 A registration statement under the Securities Act of 1933 is currently
effective and will remain effective, and appropriate state securities law
filings have been made and will continue to be made, with respect to all Shares
of the Trust being offered for sale.
Article 5 Indemnification
5.01 The Bank shall not be responsible for, and the Trust shall indemnify
and hold the Bank harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All actions of the Bank or its agent or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken in good
faith and without negligence or willful misconduct.
(b) The Trust's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Trust's lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Trust hereunder.
(c) The reliance on or use by the Bank or its agents or subcontractors of
information, records and documents which (i) are received by the Bank or its
agents or subcontractors and furnished to it by or on behalf of the Trust, and
(ii) have been prepared and/or maintained by the Trust or any other person or
firm on behalf of the Trust.
(d) The reliance on, or the carrying out by the Bank or its agents or
subcontractors of any instructions or requests of the Trust.
(e) The offer or sale of Shares in violation of any requirement under the
federal securities laws or regulations or the securities laws or regulations of
any state that such Shares be registered in such state or in violation of any
stop order or other determination or ruling by any federal agency or any state
with respect to the offer or sale of such Shares in such state.
5.02 The Bank shall indemnify and hold the Trust harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liability arising out of or attributable to any action or failure or
omission to act by the Bank as a result of the Bank's lack of good faith,
negligence or willful misconduct.
5.03 At any time the Bank may apply to any officer of the Trust for
instructions, and may consult with legal counsel for the Trust with respect to
any matter arising in connection with the services to be performed by the Bank
under this Agreement, and the Bank and its agents or subcontractors shall not be
liable and shall be indemnified by the Trust for any action taken or omitted by
it in reliance upon such instructions or upon the opinion of such counsel. The
Bank, its agents and subcontractors shall be protected and indemnified in acting
upon any paper or document furnished by or on behalf of the Trust, reasonably
believed to be genuine and to have been signed by the proper person or persons,
or upon any instruction, information, data, record's or documents provided the
Bank or its agents or subcontractors by machine readable input, telex, CRT data
entry or other similar means authorized by the Trust, and shall not be held to
have notice of any change of authority of any person, until receipt of written
notice thereof from the Trust. The Bank, its agents and subcontractors shall
also be protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signatures of the
officers of the Trust, and the proper countersignature of any former transfer
agent or registrar, or of a co-transfer agent or co-registrar.
5.04 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes.
5.05 Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any act or
failure to act hereunder.
5.06 In order that the indemnification provisions contained in this Article
5 shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
Article 6 Covenants of the Trust and the Bank
6.01 The Trust shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Trust authorizing the appointment of the Bank and the execution and delivery of
this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Trust and all
amendments thereto.
6.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
6.03 The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended, and
the Rules thereunder, the Bank agrees that all such records prepared or
maintained by the Bank relating to the services to be performed by the Bank
hereunder are the property of the Trust and will be preserved, maintained and
made available in accordance with such Section and Rules, and will be
surrendered promptly to the Trust on and in accordance with its request.
6.04 The Bank and the Trust agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
6.05 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, the Bank will endeavor to notify the Trust and
to secure instructions from an authorized officer of the Trust as to such
inspection. The Bank reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such person.
Article 7 Termination of Agreement .
7.01 This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
7.02 Upon termination hereof, the Trust shall pay the Bank such
compensation as may be due to the Bank as of the date of such termination, and
shall likewise reimburse the Bank for any expenses and advances reasonably
incurred by the Bank to such date in the performance of its duties hereunder.
The Bank agrees to cooperate with the Trust and provide all necessary assistance
in effectuating an orderly transition upon termination of this Agreement. Should
the Trust exercise its right to terminate, all out-of-pocket expenses associated
with the movement of records and material will be borne by the Trust.
Additionally, the Bank reserves the right to charge for any other reasonable
out-of-pocket expenses associated with such termination.
Article 8 Assignment
8.01 Except as provided in Section 8.03 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without the
written consent of the other party.
8.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
8.03 The Bank may, without further consent on the part of the Trust,
subcontract for the performance hereof with (i) Boston Financial Data Services,
Inc., a Massachusetts corporation ("BFDS") which is duly registered as a
transfer agent pursuant to Section 17A(c)(l) of the Securities Exchange Act of
1934 ("Section 17A(c)(l)"), or (ii) a BFDS subsidiary duly registered as a
transfer agent pursuant to Section 17A(c)(l); provided, however, that the Bank
shall be as fully responsible to the Trust for the acts and omissions of any
subcontractor as it is for its own acts and omissions.
Article 9 Amendment
9.01 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the Board
of Trustees of the Trust.
Article 10 Massachusetts Law to Apply
10.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
Article 11 Merger of Agreement
11.01 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof whether oral or written.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written. The
undersigned Trustee of the, Trust has executed this Agreement not individually,
but as Trustee under the Trust's Declaration of Trust dated, June 21, 1985, and
the obligations of this Agreement are not binding upon any of the Trustees or
shareholders of the Trust individually but bind only the Trust estate.
THE LANDMARK FUNDS TAX-FREE
RESERVES
BY: /s/Richard B. Bailey
--------------------------
ATTEST:
/s/Philip Coolidge
- -------------------------
STATE STREET BANK AND TRUST COMPANY
BY: /s/ Don McCracken
--------------------------
Vice President
ATTEST:
/s/ Kathy M. Kubit
- --------------------------
Assistant Secretary
<PAGE>
EXHIBIT NO. 9(F)
AMENDED AND RESTATED
EXCHANGE PRIVILEGE AGREEMENT
AMENDED AND RESTATED AGREEMENT, dated as of August 19, 1994, by and among
(i) each of the trusts listed on the signature page hereof or which may be added
to this Agreement by execution of a counterpart signature page hereto at a
subsequent date pursuant to a vote of such trust's Trustees (collectively, the
"Trusts") and (ii) The Landmark Funds Broker-Dealer Services, Inc. ("LFBDS").
Reference is made to Appendix A (as amended from time to time) hereto for
classification of the Trusts or any series thereof as either a "no-load fund" or
a "loaded fund" as such terms are used herein.
WITNESSETH THAT:
WHEREAS, pursuant to the terms of a Distribution Agreement or Placement
Agency Agreement, as the case may be, by and between each Trust and LFBDS, LFBDS
has the exclusive right to offer as agent shares of each Trust or any series
thereof at the public offering price, but subject to the exceptions therein set
forth or referred to;
WHEREAS, the Trusts have differing investment objectives as set out in
their offering prospectuses or private placement memoranda or other offering
documents, as the case may be, and consider it appropriate to make available to
existing and future shareholders of the Trusts the opportunity to implement
changes in their investment strategy through the acquisition, without sales
charge, or restarting the time period used in calculating the amount of the
contingent deferred sales charge assessable upon redemption, of the shares of a
class of any one or more of the Trusts or any series thereof by use of the
proceeds of redemption of shares of the same class of any other Trust or any
series thereof (herein referred to in various grammatical forms of the word
"exchange"), subject to reasonable conditions designed to limit expense and
administrative inconvenience or imposed in the best interest of the other
shareholders of any of the Trusts;
WHEREAS, while the no-load funds offer their respective shares to the
public without a sales charge, each recognizes the utility of permitting its
shares of one class acquired through an exchange from another Trust to be
re-exchanged for shares of the same class of any other Trust or any series
thereof, subject to the restrictions hereinafter set forth;
WHEREAS, LFBDS currently acts as the principal underwriter of each of the
Trusts; and
WHEREAS, each of the Trusts and LFBDS are party to an Exchange Privilege
Agreement dated as of April 16, 1992 (the "Original Agreement"), and the parties
desire to amend and restate the Original Agreement as set forth herein;
NOW, THEREFORE, the parties hereto do hereby amend and restate the
Original Agreement as follows:
1. (a) During the term of this Agreement, shares of each class of each
of the Trusts or any series thereof may, subject to the
restrictions hereinafter set forth, be offered by LFBDS as agent
for each Trust at the public offering price to shareholders of
the same class of each of the other Trusts or any series
thereof, who wish to apply the proceeds of redemption of shares
of the same class of any such Trust or any series thereof. If
the current sales charge of the class of the shares of the
loaded fund being exchanged into is greater than the current
sales charge of the same class of shares of the loaded fund that
is being exchanged out of, a sales charge may be levied in the
amount of the difference. Exchanges shall be effected in
accordance with such rules and procedures as LFBDS may from time
to time establish. In addition, exchanges of shares held through
registered broker-dealers, banks, and financial intermediaries
that have entered into dealer or agency agreements with LFBDS
("Intermediaries") may be limited to the Trusts and series held
by such respective Intermediaries and may be subject to
additional rules and procedures established by such
Intermediaries.
(b) The redemption of shares as part of an exchange will not be
subject to any contingent deferred sales charge that would
otherwise apply. For the purpose of calculating any applicable
contingent deferred sales charge upon the redemption of shares
acquired in an exchange that are subject to such a charge
("redeeming shares"), the purchase of the redeeming shares will
be deemed to have occurred at the time of the purchase of the
original shares exchanged (directly or indirectly) into the
redeeming shares and, in the event the contingent deferred sales
charge applicable to the redeeming shares is less than the
contingent deferred sales charge that would then apply to a
redemption of any shares exchanged (directly or indirectly) for
the redeeming shares (determined on the assumption that the
first shares to be redeemed are those exchanged for shares with
the lowest applicable contingent deferred sales charges), the
contingent deferred sales charge will be calculated at the
higher rate.
(c) Shares of a no-load fund may be exchanged for shares of a loaded
fund in accordance with paragraph 1(a) hereof, but only if they
have been acquired by an exchange effected in accordance with
paragraph 1(a) hereof from another loaded fund or in the form of
dividends on shares so acquired; provided, however, that if the
current sales charge of the loaded fund being exchanged into is
greater than the current sales charge of such other loaded fund,
a sales charge may be levied in the amount of the difference.
Shares of a no-load fund acquired through direct purchase or in
the form of dividends on shares so acquired may not be exchanged
for shares of a loaded fund.
2. Each Trust or any series thereof shall process all exchanges in the
usual manner as though they were unrelated purchases and sales. Each
Trust or any series thereof may charge the shareholder a reasonable
amount for effecting the exchange. LFBDS shall report daily to the
Trusts concerning all exchanges made pursuant to this Agreement.
LFBDS will not seek reimbursement from the Trusts for any expenses
incurred by it in connection with any such purchases.
3. Each of the Trusts on behalf of any series thereof may, by written
notice to each of the other Trusts and LFBDS, terminate its exchange
offer provided by this Agreement and require LFBDS and the other
Trusts to terminate the exchange offer in respect of the shares of
the Trust or any series thereof with respect to which such notice was
given. LFBDS may, by written notice to any Trust on behalf of any
series thereof, terminate its services in effecting such exchanges on
behalf of such Trust. The exchange offers with respect to shares of a
Trust or any series thereof, made by LFBDS to the shareholders of the
other Trusts or any series thereof pursuant to this Agreement shall
in any event be terminated effective upon the termination of the
services of LFBDS as principal underwriter of the shares of such
Trust or such series.
4. Nothing in this Agreement shall modify or reduce the obligations of a
Trust or LFBDS contained in the Distribution Agreement or Agreements,
if any, between LFBDS and such Trust (or the Placement Agency
Agreement, as the case may be) as the same may from time to time be
modified or amended.
5. To the extent that a Trust's effective prospectus, or private
placement memoranda or other offering document, as the case may be,
contains provisions that are inconsistent with the terms of this
Agreement, the terms of the prospectus or other offering document
shall be controlling.
6. The terms of this Agreement shall become effective with respect to
LFBDS and the Trusts or series thereof listed on the signature page
hereto as of the date first above written or with respect to any
Trust or series thereof which subsequently becomes a party hereto as
of the applicable date as set forth on the counterpart signature page
hereto, as the case may be, whereupon this Agreement, along with all
counterparts, will become a binding agreement on all parties hereto
as of such date in accordance with its terms.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year set forth below. The
undersigned Trustee of each Trust has executed this Agreement not individually,
but as Trustee under the Trust's Declaration of Trust, as from time to time
amended, and the obligations of this Agreement are not binding upon any of the
Trustees or shareholders of the Trust individually, but bind only the Trust
estate.
Dated as of: May 5, 1995
LANDMARK TAX FREE RESERVES
LANDMARK MULTI-STATE TAX FREE FUNDS
LANDMARK FUNDS I
LANDMARK FUNDS II
LANDMARK FUNDS III
LANDMARK PREMIUM FUNDS
LANDMARK INTERNATIONAL FUNDS
LANDMARK INSTITUTIONAL FUNDS I
LANDMARK FIXED INCOME FUNDS
LANDMARK TAX FREE INCOME FUNDS
LANDMARK INSTITUTIONAL TRUST
By: /s/ Philip W. Coolidge
Trustee and President
THE LANDMARK FUNDS BROKER-DEALER SERVICES, INC.
By: /s/ Philip W. Coolidge
Chief Executive Officer
<PAGE>
APPENDIX A
NO-LOAD FUNDS
As of April 16, 1992
Landmark Tax Free Reserves
Landmark California Tax Free Reserves
Landmark New York Tax Free Reserves
Landmark Cash Reserves
Landmark U.S. Treasury Reserves
Premium U.S. Treasury Reserves
Premium Liquid Reserves
Landmark Premium Tax Free Reserves
Institutional Cash Management Fund
As of August 10, 1992
Institutional Liquid Reserves
Institutional U.S. Treasury Reserves
LOADED FUNDS
As of May 1, 1992
Landmark Balanced Fund
Landmark Equity Fund
As of June 12, 1992
Landmark New York Tax Free Income Fund
Landmark U.S. Government Income Fund
<PAGE>
As of July 1, 1992
Landmark International Equity Fund
As of July 16, 1992
Landmark Intermediate Income Fund
As of October 21, 1993
Landmark Long-Term U.S. Government Income Fund
Landmark Global Governments Income Fund
Landmark National Tax-Free Income Fund
As of August 19, 1994
Landmark Earnings Growth Equity Fund
Landmark Small Cap Equity Fund
As of May 5, 1995
Landmark Emerging Asian Markets Equity Fund
<PAGE>
[Letterhead of Bingham, Dana & Gould]
EXHIBIT 10
January 2, 1990
Landmark Tax Free Reserves
6 St. James Avenue
Boston, Massachusetts 02116
Dear Ladies and Gentlemen:
We have acted as counsel to Landmark Tax Free Reserves, a Massachusetts
business trust (the "Trust"), in connection with the Trust's Amendment to its
Registration Statement on Form N-1A filed with the Securities and Exchange
Commission on January 2, 1990 (the "Registration Statement"), with respect to
its Shares of Beneficial Interest (without par value) (the "Shares").
We have made such investigations and have examined and relied upon the
originals or copies, certified or otherwise identified to our satisfaction, of
such records, instruments, certificates, memoranda and other documents as we
have deemed necessary or advisable for the purposes of this opinion. In that
examination, we have assumed the genuineness of all signatures, the authenticity
and completeness of all documents purporting to be originals (whether reviewed
by us in original or copy form) and the conformity to the originals of all
documents purporting to be copies.
This opinion is limited solely to the laws of the Commonwealth of
Massachusetts as applied by courts in Massachusetts.
Based upon and subject to the foregoing, please be advised that it is
our opinion that the Shares, when issued and sold in accordance with the Trust's
Declaration of Trust, By-Laws and Registration Statement will be legally issued,
fully paid and non-assessable, except that, as set forth in the Registration
Statement, shareholders of the Trust may under certain circumstances be held
personally liable for its obligations.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bingham, Dana & Gould
-------------------------
BINGHAM, DANA & GOULD
<PAGE>
EXHIBIT NO. 15
DISTRIBUTION PLAN
DISTRIBUTION PLAN, dated as of August 20, 1985, of The Landmark Funds
Tax Free Reserves, a Massachusetts business trust (the Fund).
WITNESSETH:
WHEREAS, the Fund is engaged in business as an open-end management
investment company and is registered under the Investment Company Act of 1940
(collectively with the rules and regulations promulgated thereunder, the 1940
Act); and
WHEREAS, the Fund intends to distribute the shares of Common Stock
(without par value) of the Fund (the Shares) in accordance with Rule 12b-1 under
the 1940 Act (Rule 12b-1), and desires to adopt this Distribution Plan (the
Plan) as a plan of distribution pursuant to such Rule; and
WHEREAS, the Fund desires to engage either Massachusetts Financial
Services Company, a Delaware corporation (MFS), or The Landmark Funds
Broker-Dealer Services, Inc., a Massachusetts corporation and wholly-owned
subsidiary of MFS (LFBDS), to provide certain distribution services for the Fund
(the Distributor); and
WHEREAS, the Fund desires to enter into a distribution agreement (in
such form as may from time to time be approved by the Board of Directors of the
Fund in the manner specified in Rule 12b-1) with the Distributor, whereby the
Distributor will provide facilities and personnel and render services to the
Fund in connection with the offering and distribution of the Shares (the
Distribution Agreement); and
WHEREAS, the Fund recognizes and agrees that the Distributor will
retain the services of Suncan Equity Services Company, a Delaware corporation
and an affiliate of MFS and LFBDS (Sunesco), to act as dealer of the Shares in
connection with the offering of the Shares, and the Distributor may make
periodic payments, out of the fee paid to the Distributor, its profits or any
other source available to it, to such broker-dealer for such services; and
WHEREAS, the Board of Directors, in considering whether the Fund should
adopt and implement this Plan, has evaluated such information as it deemed
necessary to an informed determination as to whether this Plan should be adopted
and implemented and has considered such pertinent factors as it deemed necessary
to form the basis for a decision to use assets of the Fund for such purposes,
and has determined that there is a reasonable likelihood that the adoption and
implementation of this Plan will benefit the Fund and its shareholders.
NOW, THEREFORE, the Board of Directors hereby adopts this Plan for the
Fund as a plan for distribution in accordance with Rule 12b-1, on the following
terms and conditions:
1. As specified in the Distribution Agreement, the Distributor
shall provide facilities, personnel and a program with respect
to the offering and sale of the Shares to customers of
financial institutions which have entered into shareholder
servicing agreements with the Fund. Among other things, the
Distributor shall be responsible for all expenses of printing
(excluding typesetting) and distributing prospectuses to
prospective shareholders and providing such other related
services as are reasonably necessary in connection therewith.
2. The Distributor shall bear all distribution-related expenses
described in paragraph 1, including, without limitation, the
compensation of personnel necessary to provide such services
and all costs of travel, office expenses (including rent and
overhead), equipment, printing, delivery and mailing costs.
3. As consideration for all services performed and expenses
incurred in the performance of its obligation under the
Distribution Agreement, except in connection with print or
electronic media advertising, the Fund shall pay the
Distributor a distribution fee (the Basic Distribution Fee)
periodically at an annual rate of 0.10% of the Funds average
daily net assets for its then-current fiscal year. The Fund
shall pay the Distributor an additional fee at an annual rate
not to exceed 0.10% of the Funds average daily net assets for
its then-current fiscal year in anticipation of, or as
reimbursement for, expenses incurred by the Distributor in
connection with print or electronic media advertising in
connection with the sale of Shares.
4. The Fund understands that an agreement between the Distributor
and Sunesco may provide for a portion (which may be
substantially all) of the fees payable to the Distributor
under the Distribution Agreement to be paid by the Distributor
to Sunesco in consideration of Sunescos services as the dealer
of the Shares. Nothing in this Plan shall be construed as
requiring the Fund to make any payment to Sunesco or to have
any obligation to Sunesco in connection with its services as
dealer of the Shares. The Distributor agrees and hereby
undertakes that any agreement entered into between the
Distributor and Sunesco shall provide that Sunesco shall look
solely to the Distributor for compensation for its services
thereunder and that in no event shall Sunesco seek any payment
from the Fund or its shareholders.
5. The Fund shall pay all fees and expenses of any independent
auditor, legal counsel, administrator, transfer agent,
custodian, shareholder servicing agent, registrar or dividend
disbursing agent of the Fund; expenses of distributing and
redeeming Shares and servicing shareholder accounts; expenses
of preparing, printing and mailing prospectuses, shareholder
reports, notices, proxy statements and reports to governmental
officers and commissions and to shareholders of the Fund,
except that the Distributor shall be responsible for the
expenses of printing (excluding typesetting) and distributing
prospectuses to prospective shareholders as provided in
paragraphs 1 and 2 hereof; expenses connected with the
execution, recording and settlement of portfolio security
transactions; insurance premiums; expenses of calculating the
net asset value of Shares; expenses of shareholder meetings;
and expenses relating to the issuance, registration and
qualification of Shares.
6. Nothing herein contained shall be deemed to require the Fund
to take any action contrary to its Articles of Incorporation
or By-Laws or any applicable statutory or regulatory
requirement to which it is subject or by which it is bound, or
to relieve or deprive the Board of Directors of the
responsibility for and control of the conduct of the affairs
of the Fund.
7. This Plan shall become effective upon (a) approval by a vote
of at least a majority of the outstanding voting securities of
the Fund, and (b) approval by a vote of the Board of Directors
and vote of a majority of the Directors who are not interested
persons of the Fund and who have no direct or indirect
financial interest in the operation of the Plan or in any
agreement related to the Plan (the Qualified Directors), such
votes to be cast in person at a meeting called for the purpose
of voting on this Plan.
8. This Plan shall continue in effect indefinitely; provided,
however, that such continuance is subject to annual approval
by a vote of the Board of Directors and a majority of the
Qualified Directors, such votes to be cast in person at a
meeting called for the purpose of voting on continuance of
this Plan. If such annual approval is not obtained, this Plan
shall expire on the date which is 15 months after the date of
the last approval.
9. This Plan may be amended at any time by the Board of Directors
of the Fund, provided that (a) any amendment to increase
materially the amount to be spent for the services described
herein shall be effective only upon approval by a vote of a
majority of the outstanding voting securities of the Fund, and
(b) any material amendment of this Plan shall be effective
only upon approval by a vote of the Board of Directors and a
majority of the Qualified Directors, such votes to be cast in
person at a meeting called for the purpose of voting on such
amendment. This Plan may be terminated at any time by vote of
a majority of the Qualified Directors or by a vote of a
majority of the outstanding voting securities of the Fund.
10. The Fund and the Distributor each shall provide the Board of
Directors, and the Board of Directors shall review, at least
quarterly, a written report of the amounts expended under the
Plan and the purposes for which such expenditures were made.
11. While this Plan is in effect, the selection and nomination of
Qualified Directors shall be committed to the discretion of
the Directors who are not interested persons of the Fund.
12. For the purposes of this Plan, the terms, interested persons
and majority of the outstanding voting securities are used as
defined in the 1940 Act. In addition, for purposes of
determining the fees payable to the Distributor, the value of
the Funds net assets shall be computed in the manner specified
in the Funds then-current prospectus for computation of the
net asset value of the Funds Shares.
13. The Fund shall preserve copies of this Plan, and each
agreement related hereto and each report referred to in
paragraph 10 hereof (collectively, the Records) for a period
of six years from the end of the fiscal year in which such
Record was made and each such Record shall be kept in an
easily accessible place for the first two years of said
record-keeping.
14. This Plan shall be construed in accordance with the laws of
the Commonwealth of Massachusetts and the applicable
provisions of the 1940 Act.
15. If any provision of this Plan shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of
the Plan shall not be affected thereby.
16. The Fund will retain the services of MFS pursuant to the
Distribution Agreement covering the period, if any, until the
Fund shall enter into a Distribution Agreement with LFBDS
pursuant to the following sentence. As soon as practicable
after LFBDS shall have effectively become registered as a
broker-dealer pursuant to the Securities Exchange Act of 1934,
as amended, and pursuant to the securities or blue sky laws of
each state or other jurisdiction in which the Fund proposes to
distribute its Shares and in which such registration is
required in order to permit such distribution, the Fund shall
enter into a Distribution Agreement with LFBDS.
DP/LTFR
As Approved 4/18/91
<PAGE>
EXHIBIT 25A
LANDMARK TAX FREE RESERVES
The undersigned hereby constitutes and appoints Philip W. Coolidge, Cynthia J.
Colitti, Thomas M. Lenz and Molly S. Mugler and each of them, with full powers
of substitution as his true and lawful attorneys and agents to execute in his
name and on his behalf in any and all capacities the Registration Statement.on
Form N-1A, and any and all amendments thereto, filed by Landmark Tax Free
Reserves (the "Registrant") with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, and under the Investment Company Act of
1940, as amended, and any and all other instruments which such attorneys and
agents, or any of them, deem necessary or advisable to enable the Registrant to
comply with the Securities Act of 1933, as amended, the Investment Company Act
of 1940, as amended, the rules, regulations and requirements of the Securities
and Exchange Commission, and the securities or Blue Sky laws of any state or
other jurisdiction; and the undersigned hereby ratifies and confirms as his own
act and deed any and all that such attorneys and agents, or any of them, shall
do or cause to be done by virtue hereof. Any one of such attorneys and agents
shall have, and may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 18th day of
April, 1991.
/s/ James B. Craver
--------------------------
James B. Craver
/s/ Philip W. Coolidge
--------------------------
Philip W. Coolidge
/s/ H. B. Alvord
--------------------------
H. B. Alvord
/s/ C. Oscar Morong, Jr.
--------------------------
C. Oscar Morong, Jr.
/s/ E. Kirby Warren
--------------------------
E. Kirby Warren
<PAGE>
EXHIBIT 25B
Tax Free Reserves Portfolio for
LANDMARK TAX FREE RESERVES
PREMIUM TAX FREE RESERVES
The undersigned, a Trustee of Tax Free Reserves Portfolio, hereby constitutes
and appoints Philip W. Coolidge, Cynthia J. Colitti, James B. Craver, Richard S.
Enfield, Barbara M. Cahoon, Donald S. Rumery and Molly S. Mugler and each of
them, with full powers of substitution as his true and lawful attorneys and
agents to execute in his name and on his behalf in any and all capacities the
Registration Statements on Form N-1A, and any and all amendments thereto, filed
by Landmark Tax Free Reserves and Landmark Premium Funds (on behalf of its
series, Premium Tax Free Reserves) ("the Registrants") with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, and under the
Investment Company Act of 1940, as amended, and any and all other instruments
which such attorneys and agents, or any of them, deem necessary or advisable to
enable the Registrants to comply with the Securities Act of 1933, as amended and
the Investment Company Act of 1940, as amended, the rules, regulations and
requirements of the Securities and Exchange Commission, and the securities or
Blue Sky laws of any state or other jurisdiction; and the undersigned hereby
ratifies and confirms as his own act and deed any and all that such attorneys
and agents, or any of them, shall do or cause to be done by virtue hereof. Any
one of such attorneys and agents shall have, and may exercise, all of the powers
hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day of
March, 1993.
/s/ Mark T. Finn
--------------------------------
Mark T. Finn
<PAGE>
Tax Free Reserves Portfolio for
LANDMARK TAX FREE RESERVES
PREMIUM TAX FREE RESERVES
The undersigned, an officer of Tax Free Reserves Portfolio, hereby constitutes
and appoints Philip W. Coolidge, Cynthia J. Colitti and Molly S. Mugler and each
of them, with full powers of substitution as his true and lawful attorneys and
agents to execute in his name and on his behalf in any and all capacities the
Registration Statements on Form N-1A, and any and all amendments thereto, filed
by Landmark Tax Free Reserves and Landmark Premium Funds (on behalf of its
series, Premium Tax Free Reserves) ("the Registrants") with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, and under the
Investment Company Act of 1940, as amended, and any and all other instruments
which such attorneys and agents, or any of them, deem necessary or advisable to
enable the Registrants to comply with the Securities Act of 1933, as amended and
the Investment Company Act of 1940, as amended, the rules, regulations and
requirements of the Securities and Exchange Commission, and the securities or
Blue Sky laws of any state or other jurisdiction; and the undersigned hereby
ratifies and confirms as his own act and deed any and all that such attorneys
and agents, or any of them, shall do or cause to be done by virtue hereof. Any
one of such attorneys and agents shall have, and may exercise, all of the powers
hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 18th day of
April, 1991.
/s/ James B. Craver
-----------------------------------
James B. Craver
/s/ Philip W. Coolidge
-----------------------------------
Philip W. Coolidge
/s/ Elliott J. Berv
-----------------------------------
Elliott J. Berv
/s/ Walter E. Robb III
-----------------------------------
Walter E. Robb III
