<PAGE>
As filed with the Securities and Exchange Commission on August 29, 1996
File Nos. 33-38848*
811-5812
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
POST-EFFECTIVE AMENDMENT NO. 8*
AND
REGISTRATION STATEMENT UNDER
THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 15
LANDMARK PREMIUM FUNDS
(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 29,
1996, pursuant to paragraph (b) of Rule 485.
U.S. Treasury Reserves Portfolio and Cash Reserves Portfolio have
executed this Registration Statement.
Pursuant to Rule 24f-2, Registrant has registered an indefinite number
of its Shares of Beneficial Interest ($0.00001 par value) under the Securities
Act of 1933 and has filed a Rule 24f-2 Notice on October 30 and 31, 1995 for
Registrant's fiscal year ended August 31, 1995.
- -------------------------------------------------------------------------------
* Pursuant to Rule 429 under the Securities Act of 1933, this Post-Effective
Amendment also serves as Post-Effective Amendment No. 7 to Registrant's
Registration Statement under the Securities Act of 1933 at File No. 33-28844.
<PAGE>
LANDMARK PREMIUM FUNDS
(PREMIUM LIQUID RESERVES AND
PREMIUM U.S. TREASURY 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. 33-38848) as filed with the
Securities and Exchange Commission on December 28, 1995 and to the
Registration Statement on Form N-1A (File No. 33-28844) as filed
with the Securities and Exchange Commission on the EDGAR system on
or about December 28, 1995 (Accession Number 950156-95-000895).
STATEMENT OF
ADDITIONAL
PART B INFORMATION
Items Incorporated by reference to the Registrant's Registration
10-23 Statement on Form N-1A (File No. 33-38848) as filed with the
Securities and Exchange Commission on December 28, 1995
and to the Registration Statement on Form N-1A (File No.
33-28844) as filed with the Securities and Exchange
Commission on the EDGAR system on or about December 28,
1995 (Accession Number 950156-95-000895).
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.
(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 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
**11 Consents of Deloitte & Touche LLP, Price Waterhouse LLP
and Price Waterhouse, 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 U.S. Treasury Reserves Portfolio
**, or filed 25(c) Powers of Attorney for Cash Reserves Portfolio
herewith
- ---------------------
* 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. 7 to the
Registrant's Registration Statement on Form N-1A (File No. 33-38848) as filed
with the Securities and Exchange Commission on December 28, 1995 and
Post-Effective Amendment No. 6 to the Registrant's Registration Statement on
Form N-1A (File No. 33-28844) as filed with the Securities and Exchange
Commission on December 28, 1995.
Item 25. Persons Controlled by or under Common Control with Registrant.
Not applicable.
Item 26. Number of Holders of Securities.
Title of Class Number of Record Holders
-------------- -----------------------
Shares of Beneficial Interest As of August 27, 1996
(without par value)
Premium Liquid Reserves 4
Premium U.S. Treasury Reserves 4
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), Tax Free 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:
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
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, Landmark Tax Free
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, Tax Free 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:
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. -- 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
The Landmark Funds Broker-Dealer Services, Inc. 6 St. James Avenue
Boston, MA 02116
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 Premium U.S. Treasury Reserves and Premium Liquid
Reserves is delivered with a copy of the Funds' latest Annual
Reports 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 27th day of August, 1996.
LANDMARK PREMIUM FUNDS
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 27, 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
Mark T. Finn* Trustee
- -------------------------
Mark T. Finn
Donald B. Otis* Trustee
- -------------------------
Donald B. Otis
William S. Woods, Jr.* Trustee
- -------------------------
William S. Woods, Jr.
*By: Philip W. Coolidge
- -------------------------
Philip W. Coolidge
Executed by Philip W. Coolidge on behalf of those indicated pursuant to Powers
of Attorney.
<PAGE>
SIGNATURES
U.S. Treasury Reserves Portfolio has duly caused this Post-Effective
Amendment to the Registration Statement on Form N-1A of Landmark Premium Funds
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Boston and Commonwealth of Massachusetts on the 27th day of
August, 1996.
U.S. TREASURY RESERVES PORTFOLIO
By: Philip W. Coolidge
----------------------------------
Philip W. Coolidge
President
This Post-Effective Amendment to the Registration Statement on Form
N-1A of Landmark Premium Funds has been signed by the following persons in the
capacities indicated on August 27, 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>
SIGNATURES
Cash Reserves Portfolio has duly caused this Post-Effective Amendment
to the Registration Statement on Form N-1A of Landmark Premium Funds to be
signed on its behalf by the undersigned, thereunto duly authorized, in George
Town, Grand Cayman, British West Indies on the 27th day of August, 1996.
CASH RESERVES PORTFOLIO
By: Susan Jakuboski
-----------------------------------
Susan Jakuboski, Assistant Treasurer of
Cash Reserves Portfolio
This Post-Effective Amendment to the Registration Statement on Form
N-1A of Landmark Premium Funds has been signed by the following persons in the
capacities indicated on August 27, 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: Susan Jakuboski
- -------------------------
Susan Jakuboski
Executed by Susan Jakuboski on behalf of those indicated as attorney in fact.
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No.: Description
- ------- -----------
<C> <S>
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 U.S. Treasury Reserves Portfolio
25(c) Powers of Attorney for Cash Reserves Portfolio
</TABLE>
<PAGE>
EXHIBIT 1(A)
LANDMARK PREMIUM FUNDS
(formerly Landmark Institutional Cash Reserves)
AMENDED AND RESTATED DECLARATION OF TRUST
Dated as of December 12, 1989
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I--Name and Definitions 1
Section 1.1 Name 1
Section 1.2 Definitions 1
ARTICLE II--Trustees 3
Section 2.1 Number of Trustees 3
Section 2.2 Term of Office of Trustees 3
Section 2.3 Resignation and Appointment of Trustees 3
Section 2.4 Vacancies 4
Section 2.5 Delegation of Power to Other Trustees 4
ARTICLE III--Powers of Trustees 4
Section 3.1 General 4
Section 3.2 Investments 5
Section 3.3 Legal Title 6
Section 3.4 Issuance and Repurchase of Securities 6
Section 3.5 Borrowing Money; Lending Trust Property 6
Section 3.6 Delegation; Committees 6
Section 3.7 Collection and Payment 6
Section 3.8 Expenses 7
Section 3.9 Manner of Acting; By-Laws 7
Section 3.10 Miscellaneous Powers 7
Section 3.11 Principal Transactions 7
Section 3.12 Trustees and Officers as Shareholders 8
ARTICLE IV--Investment Adviser, Distributor, Administrator,
Transfer Agent and Shareholder Servicing Agents 8
Section 4.1 Investment Adviser 8
Section 4.2 Distributor 9
Section 4.3 Administrator 9
Section 4.4 Transfer Agent and Shareholder Servicing Agents 9
Section 4.5 Parties to Contract 9
ARTICLE V--Limitations of Liability of Shareholders, Trustees and Others 10
Section 5.1 No Personal Liability of Shareholders,
Trustees, etc. 10
Section 5.2 Non-Liability of Trustees, etc. 10
Section 5.3 Mandatory Indemnification 11
Section 5.4 No Bond Required of Trustees 12
Section 5.5 No Duty of Investigation; Notice in Trust
Instruments, etc. 12
Section 5.6 Reliance on Experts, etc. 13
ARTICLE VI--Shares of Beneficial Interest 13
Section 6.1 Beneficial Interest 13
Section 6.2 Rights of Shareholders 13
Section 6.3 Trust Only 13
Section 6.4 Issuance of Shares 14
Section 6.5 Register of Shares . 14
Section 6.6 Transfer of Shares 14
Section 6.7 Notices 15
Section 6.8 Voting Powers 15
Section 6.9 Series Designation 15
ARTICLE VII--Redemptions 18
Section 7.1 Redemptions 18
Section 7.2 Suspension of Right of Redemption 18
Section 7.3 Redemption of Shares; Disclosure of Holding 18
Section 7.4 Redemptions of Accounts of Less than
Minimum Amount 19
ARTICLE VIII--Determination of Net Asset Value,
Net Income and Distributions 19
ARTICLE IX--Duration; Termination of Trust: Amendment; Mergers, etc. 19
Section 9.1 Duration 19
Section 9.2 Termination of Trust 20
Section 9.3 Amendment Procedure 20
Section 9.4 Merger, Consolidation and Sale of Assets 22
Section 9.5 Incorporation, Reorganization 22
Section 9.6 Incorporation or Reorganization of Series 22
ARTICLE X--Reports to Shareholders and Shareholder Communications 23
ARTICLE XI--Miscellaneous 23
Section 11.1 Filing 23
Section 11.2 Governing Law 23
Section 11.3 Counterparts 23
Section 11.4 Reliance by Third Parties 23
Section 11.5 Provisions in Conflict with Law or Regulations 24
Section 11.6 Principal Office 24
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
OF
LANDMARK PREMIUM FUNDS
-----------------------------
Dated as of December 12, 1989
-----------------------------
WHEREAS, the Trustees have previously established a trust through a
Declaration of Trust dated May 23, 1989 for the investment and reinvestment of
funds contributed thereto; and
WHEREAS, no shares having ever been issued pursuant to such Declaration of
Trust, the Trustees hereby amend and restate such Declaration of Trust; and
WHEREAS, the Trustees desire that the beneficial interest in the trust
assets be divided into transferable Shares of Beneficial Interest (par value
$0.00001 per share) ("Shares") issued in one or more series as hereinafter
provided; and
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 issued
hereunder and subject to the provisions hereof.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name. The name of the trust is amended herby to be is
"Landmark Premium Funds".
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
that (a) 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) 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) any Trustee
who has attained a mandatory retirement age established pursuant to any written
policy adopted from time to time by at least two thirds of the Trustees shall,
automatically and without action of such Trustee or the remaining Trustees, be
deemed to have retired in accordance with the terms of such policy, effective as
of the date determined in accordance with such policy; (d) any Trustee who has
become incapacitated by illness or injury as determined by a majority of the
other Trustees, may be retired by written instrument signed by a majority of the
other Trustees, specifying the date of his retirement; and (e) a Trustee may be
removed at any meeting of Shareholders by a vote of two thirds of the
outstanding Shares of each series. For purposes of the foregoing clause (b), the
term "cause" shall include, but not be limited to, failure to comply with such
written policies as may from time to time be adopted by at least two thirds of
the Trustees with respect to the conduct of Trustees and attendance at meetings.
Upon the resignation, retirement 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,
retiring 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 l940 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 the 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, any form of option contract,
contracts for the future acquisition or delivery of fixed income or other
securities, shares of, or any other interest in, any investment company as
defined in the Investment Company Act of 1940, 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, trust, partnership or other 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 to 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.
(c) Notwithstanding any other provision of this Declaration to the
contrary, the Trustees shall have the power in their discretion without any
requirement of approval by shareholders to either invest all or a portion of the
Trust Property, or sell all or a portion of the Trust Property and invest the
proceeds of such sales, in another investment company that is registered under
the l940 Act.
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 Acting: 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 a majority of 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 any Investment Adviser,
Administrator, Custodian, Distributor, Transfer Agent, Shareholder Servicing
Agent and any dealer, to such extent as the Trustees shall determine; (g)
guarantee indebtedness or contractual obligations of others; (h) determine and
change the fiscal year of the Trust and the method by which its accounts shall
be kept; and (i) 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 any
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 current prospectus or statement of
additional information for the Shares being purchased; or
(d) The Investment Adviser, the Distributor, the Administrator, 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 administrative services 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 or to shareholders of 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. Except as
otherwise provided in the applicable shareholder servicing contract, a
Shareholder Servicing Agent shall be deemed to be the record owner of
outstanding Shares beneficially owned by customers of such Shareholder Servicing
Agent for whom it is acting pursuant to such shareholder servicing contract.
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 as
described in Article X of the By-Laws 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 this
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 as described in Article X of the By-Laws, 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 l. 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.l 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 that series.
Section 5.2. Non-Liability of Trustees, etc. No Trustee, officer, employee
or agent of the Trust shall be liable to the Trust 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 a 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, Shareholder Servicing Agent, 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, 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, any Shareholder Servicing Agent, 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, which may be divided into one
or more series as provided in Section 6.9 hereof. Each such series shall have
such class or classes of Shares as the Trustees may from time to time determine.
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 the
Shareholders. 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, 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 l/l,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, Shareholder Servicing 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. 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. The By-Laws may include further provisions for Shareholder
votes and meetings and related matters.
Section 6.9. Series Designation. As set forth in Appendix I hereto, the
Trustees have authorized the division of Shares into series, as designated and
established pursuant to the provisions of Appendix I and this Section 6.9. The
Trustees, in their discretion, may authorize the division of Shares into one or
more additional series, and the different series shall be established and
designated, and the variations in the relative rights, privileges and
preferences as between the different series shall be fixed and determined by the
Trustees 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 issuance or sale of
Shares of a particular series, together with all assets in which such
consideration is invested or reinvested, all income and earnings thereon,
profits therefrom, 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,
proceeds, funds or payments which are not readily identifiable as belonging to
any particular series, the Trustees shall allocate them 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 such allocation by the Trustees shall be conclusive and binding
upon the Shareholders of all series for all purposes. No Shareholder 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 Shareholders 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, expenses,
costs, charges or reserves 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 monthly or otherwise, pursuant to a standing vote or
votes adopted only once or with such frequency as the Trustees may determine, to
the Shareholders 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 Shareholders of that series in proportion
to the number of Shares of that series held by such Shareholders 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 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.
(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 Commission.
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 certificate, 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
which is the agent of record for such Shareholder, or at the office of any bank
or trust company, either in or outside of the Commonwealth 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 per Share thereof, next determined after such deposit as provided in
Section 8.1 hereof. 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 events 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 which the Commission for the protection of
Shareholders by order permits the 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 has or may become concentrated in any Person to an extent
which would disqualify the Trust, or any series of the Trust, as a regulated
investment company under the Internal Revenue Code of 1986, 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 of
Shares of the Trust, or such series of the Trust, sufficient to maintain or
bring the direct or indirect ownership of Shares of the Trust, or such series of
the Trust, into conformity with the requirements for such qualification, and
(ii) to refuse to transfer or issue Shares of the Trust, or such series of the
Trust, to any Person whose acquisition of the Shares of the Trust, or such
series of the Trust, 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 Shareholders of the Trust shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of Shares
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 Minimum Amount. The
Trustees shall have the power, and any Shareholder Servicing Agent with whom the
Trust has so agreed (or a subcontractor of such Shareholder Servicing Agent)
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 owned by such Shareholder is
less than a minimum amount as determined from time to time and disclosed in a
prospectus of the Trust or in the Shareholder Servicing Agent's (or
subcontractor's) agreement with its customer. A Shareholder shall be notified
that the aggregate value of his Shares is less than such minimum amount and
allowed 60 days to make an additional investment before redemption is processed.
ARTICLE VIII
DETERMINATION OF NET ASSET VALUE,
NET INCOME AND DISTRIBUTIONS
The Trustees, in their absolute discretion, may prescribe and shall
set forth in the By-Laws or in a duly adopted vote or votes of the Trustees such
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.
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 its Shareholders, 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 Shareholders 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, collect the assets of the Trust or series of the Trust, sell, convey,
assign, exchange, transfer or otherwise dispose of all or any part of the
remaining Trust Property of the Trust or series of the Trust 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
the liabilities of the Trust or series of the Trust, and to do all other acts
appropriate to liquidate the business of the Trust or series of the Trust;
provided, that any sale, conveyance, assignment, exchange, transfer or other
disposition of all or substantially all of the Trust Property of the Trust or
series of the Trust shall require Shareholder approval in accordance with
Section 9.4 or 9.6 hereof, respectively; 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 of the Trust or series of the Trust, in
cash or in kind or partly in cash and partly in kind, among the Shareholders of
the Trust or series of the Trust according to their respective rights.
(b) After termination of the Trust or series of the Trust and distribution
to the Shareholders of the Trust or series of the Trust 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 of the Trust, and the rights and
interests of all Shareholders of the Trust or series of the Trust shall
thereupon cease.
Section 9.3. Amendment Procedure. (a) This Declaration may be amended by a
Majority Shareholder Vote of the Shareholders 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 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
1986, as amended, or to (i) change the state or other jurisdiction designated
herein as the state or other jurisdiction whose laws shall be the governing law
hereof, (ii) effect such changes herein as the Trustees find to be necessary or
appropriate (A) to permit the filing of this Declaration under the laws of such
state or other jurisdiction applicable to trusts or voluntary associations, (B)
to permit the Trust to elect to be treated as a "regulated investment company"
under the applicable provisions of the Internal Revenue Code of 1986, as
amended, or (C) to permit the transfer of shares (or to permit the transfer of
any other beneficial interests or shares in the Trust, however denominated), and
(iii) in conjunction with any amendment contemplated by the foregoing clause (i)
or the foregoing clause (ii) to make any and all such further changes or
modifications to this Declaration as the Trustees find to be necessary or
appropriate, any finding of the Trustees referred to in the foregoing clause
(ii) or clause (iii) to be conclusively evidenced by the execution of any such
amendment by a majority of the Trustees, but the Trustees shall not be liable
for failing so to do.
(b) No amendment which the Trustees have determined would affect the
rights, privileges or interests of holders of a particular series of Shares, but
not the rights, privileges or interests of holders of all series of Shares
generally, and which would otherwise require a Majority Shareholder Vote under
paragraph (a) of this Section 9.3, may be made except with the vote or consent
by a Majority Shareholder Vote of Shareholders of such series.
(c) Notwithstanding any other provision of this Declaration to the
contrary, the Trustees shall have the power in their discretion without any
requirement of approval by shareholders to either invest all or a portion of the
Trust Property, or sell all or a portion of the Trust Property and invest the
proceeds of such sales, in another investment company that is registered under
the 1940 Act.
(d) 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.
(e) 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, and executed by a majority of the Trustees, shall be
conclusive evidence of such amendment when lodged among the records of the
Trust.
(f) Notwithstanding any other provision hereof, until such time as a
Registration Statement under the Securities Act of 1933, as amended, covering
the first public offering of Shares of the Trust shall have become effective,
this Declaration may be 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.
<PAGE>
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.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Filing. This Declaration and any 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 state or
be accompanied by a certificate signed and acknowledged by a Trustee stating
that such action was duly taken in the 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, is 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 relates
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 such provision is in conflict
with the 1940 Act, the regulated investment company provisions of the Internal
Revenue Code of 1986, 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.
Section 11.6. Principal Office. The principal office of the Trust is 6 St.
James Avenue, 9th Floor, Boston, Massachusetts, 02116.
IN WITNESS WHEREOF, the undersigned have executed this instrument as of this
12th day of December, 1989.
/s/ Cynthia J. Colitti
-------------------------
Cynthia J. Colitti
as Trustee
and not individually
6 St. James Avenue
Boston, Massachusetts
/s/ Philip W. Coolidge
-------------------------
Philip W. Coolidge
as Trustee
and not individually
6 St. James Avenue
Boston, Massachusetts
/s/ Gail E. McHugh
-------------------------
Gail E. McHugh
as Trustee
and not individually
6 St. James Avenue
Boston, Massachusetts
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS.
December 12, 1989
Then personally appeared the above-named Cynthia J. Colitti, Philip W.
Coolidge and Gail E. McHugh, who severally acknowledged the foregoing instrument
to be their free act and deed.
Before me,
/s/ Molly S. Mugler
------------------------
Notary Public
My commission expires: 4/27/90
<PAGE>
Appendix I
LANDMARK PREMIUM FUNDS
Establishment and
Designation of Series of Shares of
Beneficial Interest (par value $0.00001 per share)
Pursuant to Section 6.9 of the Amended and Restated Declaration of Trust
dated as of December 12, 1989 (the "Declaration of Trust"), of the Landmark
Premium Funds (the "Trust"), the Trustees of the Trust hereby establish and
designate one series of Shares (as defined in the Declaration of Trust) (the
"Fund") to have the following special and relative rights:
l. The Fund shall be designated as follows:
Landmark Premium Cash Reserves
2. The Fund shall be authorized to hold cash, invest in securities,
instruments and other properties and use investment techniques as from time to
time described in the Trust's then currently effective registration statement
under the Securities Act of 1933 to the extent pertaining to the offering of
Shares of such Fund. Each Share of the Fund shall be redeemable, shall be
entitled to one vote (or fraction thereof in respect of a fractional share) on
matters on which Shares of the Fund shall be entitled to vote, shall represent a
pro rata beneficial interest in the assets allocated or belonging to the Fund,
and shall be entitled to receive its pro rata share of the net assets of the
Fund upon liquidation of the Fund, all as provided in Section 6.9 of the
Declaration of Trust. The proceeds of sales of Shares of the Fund, together with
any income and gain thereon, less any diminution or expenses thereof, shall
irrevocably belong to the Fund, unless otherwise required by law.
3. Shareholders of the Fund shall vote separately as a class on any matter
to the extent required by, and any matter shall be deemed to have been
effectively acted upon with respect to such Fund as provided in, Rule 18f-2, as
from time to time in effect, under the Investment Company Act of 1940, as
amended, or any successor rule, and by the Declaration of Trust.
4. The assets and liabilities of the Trust shall be allocated among the
Fund as set forth in Section 6.9 of the Declaration of Trust.
5. Subject to the provisions of Section 6.9 and Article IX of the
Declaration of Trust, the Trustees (including any successor Trustees) shall have
the right at any time and from time to time to reallocate assets and expenses or
to change the designation of the Fund now or hereafter created, or to otherwise
change the special and relative rights of the Fund.
<PAGE>
EXHIBIT 1(B)
LANDMARK PREMIUM FUNDS
Establishment and
Designation of Series of Shares of
Beneficial Interest (par value $0.00001 per share)
Pursuant to Section 6.9 of the Amended and Restated Declaration of Trust,
dated as of December 12, 1989, (the "Declaration of Trust"), of the Landmark
Premium Funds (the "Trust"), the Trustees of the Trust hereby establish and
designate two initial series of Shares (as defined in the Declaration of Trust)
(each, a "Fund") to have the following special and relative rights:
1. Each Fund shall be designated as follows:
Landmark Premium Cash Reserves
Landmark Premium Tax Free Reserves
2. Each Fund shall be authorized to hold cash, invest in securities,
instruments and other property and use investment techniques as from time to
time described in the Trust's then currently effective registration statement
under the Securities Act of 1933 to the extent pertaining to the offering of
Shares of such Fund. Each Share of each Fund shall be redeemable, shall be
entitled to one vote (or fraction thereof in respect of a fractional share) on
matters on which Shares of each Fund shall be entitled to vote, shall represent
a pro rata beneficial interest in the assets allocated or belonging to each
Fund, and shall be entitled to receive its pro rata share of the net assets of
each Fund upon liquidation of each Fund, all as provided in Section 6.9 of the
Declaration of Trust. The proceeds of sales of Shares of each Fund, together
with any income and gain thereon, less any diminution or expenses thereof, shall
irrevocably belong to each Fund, unless otherwise required by law.
3. Shareholders of each Fund shall vote separately as a class on any matter
to the extent required by, and any matter shall be deemed to have been
effectively acted upon with respect to such Fund as provided in, Rule 18f-2, as
from time to time in effect, under the Investment Company Act of 1940, as
amended, or any successor rule, and by the Declaration of Trust.
4. The assets and liabilities of the Trust shall be allocated among each
Fund as set forth in Section 6.9 of the Declaration of Trust.
5. Subject to the provisions of Section 6.9 and Article IX of the
Declaration of Trust, the Trustees (including any successor Trustees) shall have
the right at any time and from time to time to reallocate assets and expenses or
to change the designation of each Fund now or hereafter created, or to otherwise
change the special and relative rights of each fund,
IN WITNESS WHEREOF, the undersigned have executed this instrument this 13
day of December 1989.
/s/ Philip W. Coolidge
-------------------------
Philip W. Coolidge
/s/ Riley C. Gilley
-------------------------
Riley C. Gilley
/s/ William S. Woods
-------------------------
William S. Woods
<PAGE>
LANDMARK PREMIUM FUNDS
Establishment and
Designation of Series of Shares of
Beneficial Interest (par value $0.00001 per share)
The Establishment and Designation of Series of Shares filed on June 15,
1990 is hereby amended and restated as follows: Pursuant to Section 6.9 of the
Amended and Restated Declaration of Trust, dated as of December 12, 1989, (the
"Declaration of Trust"), of the Landmark Premium Funds (the "Trust"), the
Trustees of the Trust hereby establish and designate the following series of
Shares (as defined in the Declaration of Trust) (each, a "Fund") to have the
following special and relative rights:
1. Each Fund shall be designated as follows:
Premium Liquid Reserves
Premium U.S. Treasury Reserves
Landmark Premium Tax Free Reserves
2. Each Fund shall be authorized to hold cash, invest in securities,
instruments and other property and use investment techniques as from time to
time described in the Trust's then currently effective registration statement
under the Securities Act of 1933 to the extent pertaining to the offering of
Shares of such Fund. Each share of each Fund shall be redeemable, shall be
entitled to one vote (or a fraction thereof in respect of a fractional share) on
matters on which Shares of each Fund shall be entitled to vote, shall represent
a pro rata beneficial interest in the assets allocated or belonging to each
Fund, and shall be entitled to receive its pro rata share of the net assets of
each Fund upon liquidation of each Fund, all as provided in Section 6.9 of the
Declaration of Trust. The proceeds of sales of Shares of each Fund, together
with any income and gain thereon, less any diminution or expenses thereof, shall
irrevocably belong to each Fund, unless otherwise required by law.
3. Shareholders of each Fund shall vote separately as a class on any matter
to the extent required by, and any matter shall have been deemed effectively
acted upon with respect to such Fund as provided in, Rule 18f-2, as from time to
time in effect, under the Investment Company Act of 1940, as amended, or any
successor rule, and by the Declaration of Trust.
4. The assets and liabilities of the Trust shall be allocated among each
Fund as set forth in Section 6.9 of the Declaration of Trust except that all
existing assets and liabilities of Landmark Premium Cash Reserves and Landmark
Premium Tax Free Reserves as of the date of this Designation of Series shall be
deemed to be the assets and liabilities of Premium Liquid Reserves and Landmark
Premium Tax Free Reserves, respectively, and all shares of Landmark Premium Cash
Reserves and Landmark Premium Tax Free Reserves outstanding as of the date of
this Designation of Series shall be deemed to be outstanding shares of Premium
Liquid Reserves and Landmark Premium Tax Free Reserves, respectively.
5. Subject to the provisions of Section 6.9 and Article IX of the
Declaration of Trust, the Trustees (including any successor Trustees) shall have
the right at any time and from time to time to reallocate assets and expenses or
to change the designation of each Fund now or hereafter created, or to otherwise
change the special and relative rights of each Fund.
IN WITNESS WHEREOF, the undersigned has executed this instrument on behalf
of the Board of Trustees this 1st day of February, 1991, as authorized and
directed by the Board of Trustees at a meeting of such Board on January 17,
1991.
/s/ Cynthia J. Colitti
-------------------------
Cynthia J. Colitti
Secretary
<PAGE>
LANDMARK PREMIUM FUNDS
ESTABLISHMENT AND
DESIGNATION OF SERIES OF SHARES OF
BENEFICIAL INTEREST (PAR VALUE $0.00001 PER SHARE)
The Establishment and Designation of Series of Shares filed on June 15,
1990 is hereby amended and restated as follows: Pursuant to Section 6.9 of the
Amended and Restated Declaration of Trust dated as of December 12, 1989, (the
"Declaration of Trust"), of the Landmark Premium Funds (the "Trust"), the
Trustees of the Trust hereby establish and designate the following series of
Shares (as defined in the Declaration of Trust) (each, a "Fund") to have the
following special and relative rights:
1. Each Fund shall be designated as follows:
Premium Liquid Reserves
Premium U.S. Treasury Reserves
Landmark Premium Tax Free Reserves
Premium Small Cap Equity Fund
Premium Earnings Growth Equity Fund
2. Each Fund shall be authorized to hold cash, invest in securities,
instruments and other property and use investment techniques as from time to
time described in the Trust's then currently effective registration statement
under the Securities Act of 1933 to the extent pertaining to the offering of
Shares of such Fund. Each share of each Fund shall be redeemable, shall be
entitled to one vote (or a fraction thereof in respect of a fractional share) on
matters on which Shares of each Fund shall be entitled to vote, shall represent
a pro rata beneficial interest in the assets allocated or belonging to each
Fund, and shall be entitled to receive its pro rata share of the net assets of
each Fund upon liquidation of each Fund, all as provided in Section 6.9 of the
Declaration of Trust. The proceeds of sales of Shares of each Fund, together
with any income and gain thereon, less any diminution or expenses thereof, shall
irrevocably belong to each Fund, unless otherwise required by law.
3. Shareholders of each Fund shall vote separately as a class on any
matter to the extent required by, and any matter shall have been deemed
effectively acted upon with respect to such Fund as provided in, Rule 18f-2, as
from time to time in effect, under the Investment Company Act of 1940, as
amended, or any successor rule and by the Declaration of Trust.
4. The assets and liabilities of the Trust shall be allocated among each
Fund as set forth in Section 6.9 of the Declaration of Trust except that all
existing assets and liabilities of Landmark Premium Cash Reserves and Landmark
Premium Tax Free Reserves as of the date of this Designation of Series shall be
deemed to be the assets and liabilities of Premium Liquid Reserves and Landmark
Premium Tax Free Reserves, respectively, and all shares of Landmark Premium Cash
Reserves and Landmark Premium Tax Free Reserves outstanding as of the date of
this Designation of Series shall be deemed to be outstanding shares of
Premium Liquid Reserves and Landmark Premium Tas Free Reserves, respectively.
5. Subject to the provisions of Section 6.9 and Article IX of the
Declaration of Trust, the Trustees (including any successor Trustees) shall have
the right at any time and from time to time to reallocate assets and expenses or
to change the designation of each Fund now or hereafter created, or to otherwise
change the special and relative rights of each Fund.
IN WITNESS WHEREOF, the undersigned has executed this instrument on
behalf of the Board of Trustees this 19th day of August, 1994.
/s/ Philip W. Coolidge /s/ Donald B. Otis
--------------------- --------------------------
Philip W. Coolidge Donald B. Otis
/s/ Mark T. Finn /s/ William S. Woods, Jr.
--------------------- --------------------------
Mark T. Finn William S. Woods, Jr.
<PAGE>
LANDMARK PREMIUM FUNDS
Certificate of Amendment
to Declaration of Trust
The undersigned, constituting a majority of the Trustees of Landmark
Premium Funds (the "Trust"), a business trust organized under the laws of the
Commonwealth of Massachusetts pursuant to a Declaration of Trust, dated May 23,
1989, as amended (the "Declaration"), do hereby certify, as provided by the
provisions of Section 9.3(e) 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/ Philip W. Coolidge
---------------------
Philip W. Coolidge
/s/ Mark T. Finn
---------------------
Mark T. Finn
/s/ Donald B. Otis
--------------------------
Donald B. Otis
/s/ William S. Woods, Jr.
--------------------------
William S. Woods, Jr.
<PAGE>
EXHIBIT NO. 2(A)
AMENDED AND RESTATED
BY-LAWS
of
LANDMARK PREMIUM FUNDS
(FORMERLY LANDMARK INSTITUTIONAL CASH 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 Premium Funds, as
amended and restated as of December 13, 1989 and dated May 23, 1989, 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. A meeting 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 the Shareholders. 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, cabled or
wirelessed 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 TrusteesO 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 a
President, a Treasurer and a Secretary, each of whom 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, each of 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 is 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,
cabled or wirelessed for the purposes of these By-Laws when it has been
delivered to a representative of any telegraph, cable or wireless company with
instruction that it be telegraphed, cabled or wirelessed. Any notice shall be
deemed to be given at the time when the same shall be mailed, telegraphed,
cabled or wirelessed.
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 and the net asset value of Shares;
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 with 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
These By-Laws, or any of them, may be altered, amended or repealed, or new
By-Laws may be adopted (a) by the Shareholders by a 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
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of December 13, 1989, by and between
LANDMARK PREMIUM FUNDS, 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 shares of Beneficial Interest (par value $0.00001 per
share) of the Trust (the "Shares") are divided into one or more separate series
(together with any series which may in the future be established, the "Series");
WHEREAS, the Board of Trustees of the Trust has adopted a Distribution
Plan, dated as of December 13, 1989, as amended (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 of each Series, 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 each Series 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 of each Series.
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 of each Series placed with the
Distributor, 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 Series. The price which shall be paid to
the Trust for the Shares of each Series so purchased shall be the net
asset value per Share as determined in accordance with the provisions
of the 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 12:00 o'clock noon of each business day, or as
soon thereafter as the orders placed with the Distributor have been
compiled, of the number of Shares of each Series and the prices thereof
which have been ordered through the Distributor since 12:00 o'clock
noon of 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 any Series 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 each Series 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 any investor or to or through any dealer having a sales
agreement with the Distributor, upon the following terms and
conditions:
The public offering price of Shares of each Series, 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 of each Series shall be
determined by the Trust, or by an agent of the Trust, as of 12:00
o'clock 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 of any Series 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 of each Series 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 person 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,
claims 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 person's 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,
with respect to such Shares, 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 in connection with the sale of Shares of any
Series, other than those contained in the Registration Statement or
Prospectus or Statement of Additional Information relating to such
Series.
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 with
respect to Shares of each Series, 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 with respect to Shares of each Series);
(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) subject to the Distribution Plan, a distribution
fee from the assets of each Fund to the Distributor not to
exceed 0.10% of the Trust's average daily net assets
pertaining to such Series for its then-current fiscal year in
anticipation of, or as reimbursement for, expenses incurred by
the Distributor in connection with the sale of Shares or
required to be borne by the Distributor hereunder, including,
without limitation, advertising expenses and the expenses of
printing (excluding typesetting) and distributing prospectuses
and reports used for sales purposes, expenses of preparing and
printing sales literature and other distribution-related
expenses whether or not specifically required to be made by
the Distributor pursuant to the terms of this Agreement;
(v) all fees and disbursements of the Transfer Agent and
Custodian with respect to each Series, 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 each Series
(pursuant to the Investment Advisory Agreement with such
Adviser).
The Distributor agrees that, with respect to the sale of
Shares of each Series, subject to the Trust's obligations under clause
(iv) above, (a) after the Prospectus and Statement of Additional
Information and periodic reports with respect to such Series 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 ordered by it which are to be used in connection with the
offering or sale of Shares of such Series to any dealer or prospective
investor, (b) 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 of such Series for sale to the public and any expense of sending
confirmations and statements to any dealer having a sales agreement
with the Distributor, and (c) it will bear the expenses of
qualification of Shares of such Series 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 of any Series, 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 of any Series 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 of such Series, 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" 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 by the Board of Trustees 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. If such annual approval is not
obtained, this Agreement shall terminate on the date which is 15 months
after the date of the last approval.
This Agreement may be terminated as to any Series at any time
by (i) the Trust, (a) by the vote of a majority of the Trustees of the
Trust who are not "interested persons" of the Trust or the Distributor,
(b) by the vote of the Board of Trustees of the Trust, or (c) by the
"vote of a majority of the outstanding voting securities" of the Trust,
or (ii) by the Distributor, in any case 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. 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.
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
Declaration of Trust, dated May 23, 1989, 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 PREMIUM FUNDS THE LANDMARK FUNDS BROKER-
DEALER SERVICES, INC.
By: /s/ Philip W. Coolidge By: /s/ Philip W. Coolidge
------------------------ ------------------------
Title: President Title: Chief Executive Officer
<PAGE>
EXHIBIT NO. 7
CUSTODIAN CONTRACT
Between
LANDMARK PREMIUM FUNDS
and
STATE STREET BANK AND TRUST COMPANY
21E1089
WP1080C
<PAGE>
TABLE OF CONTENTS
Page
1. Employment of Custodian and Property to be Held By It...................1
2. Duties of the Custodian with Respect to Property
of the Fund Held by the Custodian in the United States...............3
2.1 Holding Securities ...............................................3
2.2 Delivery of Securities ...........................................3
2.3 Registration of Securities .......................................8
2.4 Bank Accounts ....................................................9
2.5 Availability of Federal Funds ...................................10
2.6 Collection of Income ............................................10
2.7 Payment of Fund Monies ..........................................11
2.8 Liability for Payment in Advance of Receipt of Securities
Purchased .......................................................14
2.9 Appointment of Agents ...........................................15
2.10 Deposit of Fund Assets in Securities System......................15
2.10A Fund Assets Held in the Custodian's Direct Paper System .........l8
2.11 Segregated Account...............................................20
2.12 Ownership Certificates for Tax Purposes..........................21
2.13 Proxies..........................................................22
2.14 Communications Relating to Portfolio Securities..................22
3. Duties of the Custodian with Respect to Property of the Fund Held
Outside of the United States...........................................23
3.1 Appointment of Foreign Sub-Custodians ...........................23
3.2 Assets to be Held ...............................................23
3.3 Foreign Securities Depositories .................................24
3.4 Segregation of Securities .......................................24
3.5 Agreements with Foreign Banking Institutions ....................25
3.6 Access of Independent Accountants of the Fund ...................25
3.7 Reports by Custodian ............................................26
3.8 Transactions in Foreign Custody Account .........................26
3.9 Liability of Foreign Sub-Custodians .............................27
3.10 Liability of Custodian...........................................28
3.11 Reimbursement for Advances.......................................29
3.12 Monitoring Responsibilities......................................29
3.13 Branches of U.S. Banks...........................................30
4. Payments for Sales or Repurchase or Redemptions of Shares of the Fund 31
5. Proper Instructions....................................................32
6. Actions Permitted Without Express Authority ...........................32
7. Evidence of Authority .................................................33
8. Duties of Custodian With Respect to the Books of Account
and Calculation of Net Asset Value and Net Income .....................34
9. Records................................................................34
10. Opinion of Fund's Independent Accountants..............................35
11. Reports to Fund by Independent Public Accountants......................35
12. Compensation of Custodian..............................................36
13. Responsibility of Custodian............................................36
14. Effective Period, Termination and Amendment............................38
15. Successor Custodian....................................................40
16. Interpretive and Additional Provisions.................................41
17. Additional Funds.......................................................42
18. Massachusetts Law to Apply.............................................42
19. Prior Contracts........................................................42
20. Limitation of Liability of the Trustees and Shareholders...............43
<PAGE>
CUSTODIAN CONTRACT
This Contract between Landmark Premium Funds, a business trust organized
and existing under the laws of the Commonwealth of Massachusetts, having its
principal place of business at 6 St. James Avenue, Boston, Massachusetts,
hereinafter called the "Fund", and State Street Bank and Trust Company, a
Massachusetts trust company, having its principal place of business at 225
Franklin Street, Boston, Massachusetts, 02110, hereinafter called the
"Custodian",
WITNESSETH.
WHEREAS, the Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets; and
WHEREAS, the Fund initially offers shares in one series, the Landmark
Premium Cash Reserves (such series together with all other series subsequently
established by the Fund and trade subject to this Contract in accordance with
paragraph 17, being herein referred to as the "Portfolio(s)");
NOW THEREFOR, 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 the assets of the
Portfolios of the Fund, including securities which the Fund, on behalf of the
applicable Portfolio desires to be held in places within the United States
("domestic securities") and securities it desires to be held outside the United
States ("foreign securities") pursuant to the provisions of the Declaration of
Trust. The Fund on behalf of the Portfolio(s) agrees to deliver to the Custodian
all securities and cash of the Portfolios, and all payments of income, payments
of principal or capital distributions received by it with respect to all
securities owned by the Portfolio(s) from time to time, and the cash
consideration received by it for such new or treasury shares of beneficial
interest of the Fund representing interests in the Portfolios, ("Shares") as may
be issued or sold from time to time. The Custodian shall not be responsible for
any property of a Portfolio held or received by the Portfolio and not delivered
to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of Article 5),
the Custodian shall on behalf of the applicable Portfolio(s) from time to time
employ one or more sub-custodians, located in the United States but only in
accordance with an applicable vote by the Board of Trustees of the Fund on
behalf of the applicable Portfolio(s), 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. The Custodian may employ as sub-custodian
for the Funds foreign securities on behalf of the applicable Portfolio(s) the
foreign banking institutions and foreign securities depositories designated in
Schedule A hereto but only in accordance with the provisions of Article 3.
2. Duties of the Custodian with Respect to Property of the Fund Held By the
Custodian in the United States
2.1 Holding Securities. The Custodian shall hold and physically segregate for
the account of each Portfolio all non-cash property, to be held by it in
the United States including all domestic securities owned by such
Portfolio, other than (a) securities which are maintained pursuant to
Section 2.10 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" and (b) commercial
paper of an issuer for which State Street Bank and Trust Company acts as
issuing and paying agent ("Direct Paper") which is deposited and/or
maintained in the Direct Paper System of the Custodian pursuant to Section
2.10A.
2.2 Delivery of Securities. The Custodian shall release and deliver domestic
securities owned by a Portfolio held by the Custodian or in a Securities
System account of the Custodian or in the Custodian's Direct Paper book
entry system account ("Direct Paper System Account") only upon receipt of
Proper Instructions from the Fund on behalf of the applicable Portfolio,
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 Portfolio 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 Portfolio;
3) In the case of a sale effected through a Securities System, in
accordance with the provisions of Section 2.10 hereof;
4) To the depository agent in connection with tender or other similar
offers for securities of the Portfolio;
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
Portfolio 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 2.9 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) Upon the sale of such securities for the account of the Portfolio, to
the broker or its clearing agent, against a receipt, for examination in
accordance with "street delivery" custom; provided that in any such
case, the Custodian shall have no responsibility or liability for any
loss arising from the delivery of such securities prior to receiving
payment for such securities except as may arise from the Custodian's
own negligence or willful misconduct;
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
Portfolio, but only against receipt of adequate collateral as agreed
upon from time to time by the Custodian and the Fund on behalf of the
Portfolio, 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
Portfolio prior to the receipt of such collateral;
11) For delivery as security in connection with any borrowings by the Fund
on behalf of the Portfolio requiring a pledge of assets by the Fund on
behalf of the Portfolio, but only against receipt of amounts borrowed;
12) For delivery in accordance with the provisions of any agreement among
the Fund on behalf of the Portfolio, 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
Portfolio of the Fund;
13) For delivery in accordance with the provisions of any agreement among
the Fund on behalf of the Portfolio, 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 Portfolio of 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 currently effective prospectus and statement
of additional information of the Fund, related to the Portfolio
("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 from the Fund on behalf of the
applicable Portfolio, a certified copy of a resolution of the Board of
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 of the Portfolio to be delivered, setting forth the
purpose for which such delivery is to be made, declaring such purpose
to be a proper corporate purpose, and naming the person or persons to
whom delivery of such securities shall be made.
2.3 Registration of Securities. Domestic securities held by the Custodian
(other than bearer securities) shall be registered in the name of the
Portfolio or in the name of any nominee of the Fund on behalf of the
Portfolio or of any nominee of the Custodian which nominee shall be
assigned exclusively to the Portfolio, 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
Portfolio, or in the name or nominee name of any agent appointed pursuant
to Section 2.9 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 Portfolio under the terms of this Contract shall be in
"street name" or other good delivery form. If, however, the Fund directs
the Custodian to maintain securities in "street name", the Custodian shall
utilize its best efforts only to timely collect income due the Fund on such
securities and to notify the Fund on a best efforts basis only of relevant
corporate actions including, without limitation, pendency of calls,
maturities, tender or exchange offers.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts in the United States in the name of each Portfolio 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 Portfolio, other than cash maintained by the Portfolio 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 a Portfolio
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 on
behalf of each applicable Portfolio be approved by vote of a majority of
the Board of 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 Availability of Federal Funds. Upon mutual agreement between the Fund on
behalf of each applicable Portfolio and the Custodian, the Custodian shall,
upon the receipt of Proper Instructions from the Fund on behalf of a
Portfolio, make federal funds available to such Portfolio 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 such Portfolio which are
deposited into the Portfolio's account.
2.6 Collection of Income. Subject to the provisions of Section 2.3, the
Custodian shall collect on a timely basis all income and other payments
with respect to registered domestic securities held hereunder to which each
Portfolio 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 domestic securities if, on the date
of payment by the issuer, such securities are held by the Custodian or its
agent thereof and shall credit such income, as collected, to such
Portfolio'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 each Portfolio 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 Portfolio is properly entitled.
2.7 Payment of Fund Monies. Upon receipt of Proper Instructions from the Fund
on behalf of the applicable Portfolio, which may be continuing instructions
when deemed appropriate by the parties, the Custodian shall Pay out monies
of a Portfolio in the following cases only:
1) Upon the purchase of domestic securities, options, futures contracts or
options on futures contracts for the account of the Portfolio but only
(a) against the delivery of such securities or evidence of title to
such options, 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 Portfolio 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 2.10
hereof; (c) in the case of a purchase involving the Direct Paper
System, in accordance with the conditions set forth in Section 2.10A;
(d) in the case of repurchase agreements entered into between the Fund
on behalf of the Portfolio 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
Portfolio of securities owned by the Custodian along with written
evidence of the agreement by the Custodian to repurchase such
securities from the Portfolio or (e) for transfer to a time deposit
account of the Fund in any bank, whether domestic or foreign; such
transfer may be effected prior to receipt of a confirmation from a
broker and/or the applicable bank pursuant to Proper Instructions from
the Fund as defined in Article 5;
2) In connection with conversion, exchange or surrender of securities
owned by the Portfolio as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued by the Portfolio as
set forth in Article 4 hereof;
4) For the payment of any expense or liability incurred by the Portfolio,
including but not limited to the following payments for the account of
the Portfolio: 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 on Shares of the Portfolio 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 from the Fund on behalf of the Portfolio, a
certified copy of a resolution of the Board of 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.
2.8 Liability for Payment in Advance of Receipt of Securities Purchased. Except
as specifically stated otherwise in this Contract, in any and every case
where payment for purchase of domestic securities for the account of a
Portfolio is made by the Custodian in advance of receipt of the securities
purchased in the absence of specific written instructions from the Fund on
behalf of such Portfolio 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.
2.9 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.
2.10 Deposit of Fund Assets in Securities Systems. The Custodian may deposit
and/or maintain securities owned by a Portfolio 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 Portfolio 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
Portfolio which are maintained in a Securities System shall identify by
book-entry those securities belonging to the Portfolio;
3) The Custodian shall pay for securities purchased for the account of the
Portfolio 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 Portfolio. The Custodian
shall transfer securities sold for the account of the Portfolio 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 Portfolio. Copies of all advices from
the Securities System of transfers of securities for the account of the
Portfolio shall identify the Portfolio, be maintained for the Portfolio
by the Custodian and be provided to the Fund at its request. Upon
request, the Custodian shall furnish the Fund on behalf of the
Portfolio confirmation of each transfer to or from the account of the
Portfolio in the form of a written advice or notice and shall furnish
to the Fund on behalf of the Portfolio copies of daily transaction
sheets reflecting each day's transactions in the Securities System for
the account of the Portfolio.
4) The Custodian shall provide the Fund for the Portfolio 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 from the Fund on behalf of the
Portfolio the initial or annual certificate, as the case may be,
required by Article 14 hereof;
6) Anything to the contrary in this Contract notwithstanding, the
Custodian shall be liable to the Fund for the benefit of the Portfolio
for any loss or damage to the Portfolio 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 Portfolio has not been made whole for any such loss or
damage.
2.10A Fund Assets Held in the Custodian's Direct Paper System. The Custodian may
deposit and/or maintain securities owned by a Portfolio in the Direct
Paper System of the Custodian subject to the following provisions:
1) No transaction relating to securities in the Direct Paper System will
be effected in the absence of Proper Instructions from the Fund on
behalf of the Portfolio;
2) The Custodian may keep securities of the Portfolio in the Direct Paper
System only if such securities are represented in an account
("Account") of the Custodian in the Direct Paper System which shall not
include any assets of the Custodian other than assets held as a
fiduciary, custodian or otherwise for customers;
3) The records of the Custodian with respect to securities of the
Portfolio which are maintained in the Direct Paper System shall
identify by book-entry those securities belonging to the Portfolio;
4) The Custodian shall pay for securities purchased for the account of the
Portfolio upon the making of an entry on the records of the Custodian
to reflect such payment and transfer of securities to the account of
the Portfolio. The Custodian shall transfer securities sold for the
account of the Portfolio upon the making of an entry on the records of
the Custodian to reflect such transfer and receipt of payment for the
account of the Portfolio;
5) The Custodian shall furnish the Fund on behalf of the Portfolio
confirmation of each transfer to or from the account of the Portfolio,
in the form of a written advice or notice, of Direct Paper on the next
business day following such transfer and shall furnish to the Fund on
behalf of the Portfolio copies of daily transaction sheets reflecting
each day's transaction in the Securities System for the account of the
Portfolio;
6) The Custodian shall provide the Fund on behalf of the Portfolio with
any report on its system of internal accounting control as the Fund may
reasonably request from time to time.
2.11 Segregated Account. The Custodian shall upon receipt of Proper Instructions
from the Fund on behalf of each applicable Portfolio establish and maintain
a segregated account or accounts for and on behalf of each such Portfolio,
into which account or accounts may be transferred cash and/or securities,
including securities maintained in an account by the Custodian pursuant to
Section 2.10 hereof, (i) in accordance with the provisions of any
agreement among the Fund on behalf of the Portfolio, 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 Portfolio, (ii) for
purposes of segregating cash or government securities in connection with
options purchased, sold or written by the Portfolio or commodity futures
contracts or options thereon purchased or sold by the Portfolio, (iii) for
the purposes of compliance by the Portfolio 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 from the Fund on
behalf of the applicable Portfolio, a certified copy of a resolution of the
Board of 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.
2.12 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 domestic securities of each Portfolio held by it and in
connection with transfers of securities.
2.13 Proxies. The Custodian shall, with respect to the domestic 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 Portfolio or a nominee of the Portfolio, all proxies, without
indication of the manner in which such proxies are to be voted, and shall
promptly deliver to the Portfolio such proxies, all proxy soliciting
materials and all notices relating to such securities.
2.14 Communications Relating to Portfolio Securities. Subject to the provisions
of Section 2.3, the Custodian shall transmit promptly to the Fund for each
Portfolio all written information (including, without limitation, pendency
of calls and maturities of domestic securities and expirations of rights in
connection therewith and notices of exercise of call and put options
written by the Fund on behalf of the Portfolio and the maturity of futures
contracts purchased or sold by the Portfolio) received by the Custodian
from issuers of the securities being held for the Portfolio. With respect
to tender or exchange offers, the Custodian shall transmit promptly to the
Portfolio 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 Portfolio desires
to take action with respect to any tender offer, exchange offer or any
other similar transaction, the Portfolio shall notify the Custodian at
least three business days prior to the date on which the Custodian is to
take such action.
3. Duties of the Custodian with Respect to Property of the Fund Held Outside
of the United States
3.1 Appointment of Foreign Sub-Custodians. The Fund hereby authorizes and
instructs the Custodian to employ as sub-custodians for the Portfolio's
securities and other assets maintained outside the United States the
foreign banking institutions and foreign securities depositories designated
on Schedule A hereto ("foreign sub-custodians"). Upon receipt of "Proper
Instructions", as defined in Section 5 of this Contract, together with a
certified resolution of the Fund's Board of Trustees, the Custodian and the
Fund may agree to amend Schedule A hereto from time to time to designate
additional foreign banking institutions and foreign securities depositories
to act as sub-custodian. Upon receipt of Proper Instructions, the Fund may
instruct the Custodian to cease the employment of any one or more such
sub-custodians for maintaining custody of the Portfolio's assets.
3.2 Assets to be Held. The Custodian shall limit the securities and other
assets maintained in the custody of the foreign sub-custodians to (a)
"foreign securities", as defined in paragraph (c)(l) of Rule 17f-5 under
the Investment Company Act of 1940, and (b) cash and cash equivalents in
such amounts as the Custodian or the Fund may determine to be reasonably
necessary to effect the Portfolio's foreign securities transactions.
3.3 Foreign Securities Depositories. Except as may otherwise be agreed upon in
writing by the Custodian and the Fund, assets of the Portfolios shall be
maintained in foreign securities depositories only through arrangements
implemented by the foreign banking institutions serving as sub-custodians
pursuant to the terms hereof. Where possible, such arrangements shall
include entry into agreements containing the provisions set forth in
Section 3.5 hereof.
3.4 Segregation of Securities. The Custodian shall identify on its books as
belonging to each applicable Portfolio of the Fund, the foreign securities
of such Portfolios held by each foreign sub-custodian. Each agreement
pursuant to which the Custodian employs a foreign banking institution shall
require that such institution establish a custody account for the Custodian
on behalf of the Fund for each applicable Portfolio of the Fund and
physically segregate in each account, securities and other assets of the
Portfolios, and, in the event that such institution deposits the securities
of one or more of the Portfolios in a foreign securities depository, that
it shall identify on its books as belonging to the Custodian, as agent for
each applicable Portfolio, the securities so deposited.
3.5 Agreements with Foreign Banking Institutions. Each agreement with a foreign
banking institution shall be substantially in the form set forth in Exhibit
1 hereto and shall provide that: (a) the assets of each Portfolio will not
be subject to any right, charge, security interest, lien or claim of any
kind in favor of the foreign banking institution or its creditors or agent,
except a claim of payment for their safe custody or administration; (b)
beneficial ownership for the assets of each Portfolio will be freely
transferable without the payment of money or value other than for custody
or administration; (c) adequate records will be maintained identifying the
assets as belonging to each applicable Portfolio; (d) officers of or
auditors employed by, or other representatives of the Custodian, including
to the extent permitted under applicable law the independent public
accountants for the Fund, will be given access to the books and records of
the foreign banking institution relating to its actions under its agreement
with the Custodian; and (e) assets of the Portfolios held by the foreign
sub-custodian will be subject only to the instructions of the Custodian or
its agents.
3.6 Access of Independent Accountants of the Fund. Upon request of the Fund,
the Custodian will use its best efforts to arrange for the independent
accountants of the Fund to be afforded access to the books and records of
any foreign banking institution employed as a foreign sub-custodian insofar
as such books and records relate to the performance of such foreign banking
institution under its agreement with the Custodian.
3.7 Reports by Custodian. The Custodian will supply to the Fund from time to
time, as mutually agreed upon, statements in respect of the securities and
other assets of the Portfolio(s) held by foreign sub-custodians, including
but not limited to an identification of entities having possession of the
Portfolio(s) securities and other assets and advices or notifications of
any transfers of securities to or from each custodial account maintained by
a foreign banking institution for the Custodian on behalf of each
applicable Portfolio indicating, as to securities acquired for a Portfolio,
the identity of the entity having physical possession of such securities.
3.8 Transactions in Foreign Custody Account.
(a) Except as otherwise provided in paragraph (b) of this Section 3.8, the
provision of Sections 2.2 and 2.7 of this Contract shall apply, mutatis
mutandis to the foreign securities of the Fund held outside the United
States by foreign sub-custodians.
(b) Notwithstanding any provision of this Contract to the contrary,
settlement and payment for securities received for the account of each
applicable Portfolio and delivery of securities maintained for the account
of each applicable Portfolio may be effected in accordance with the
customary established securities trading or securities processing practices
and procedures in the jurisdiction or market in which the transaction
occurs, including, without limitation, delivering securities to the
purchaser thereof or to a dealer therefor (or an agent for such purchaser
or dealer) against a receipt with the expectation of receiving later
payment for such securities from such purchaser or dealer.
(c) Securities maintained in the custody of a foreign sub-custodian may be
maintained in the name of such entity's nominee to the same extent as set
forth in Section 2.3 of this Contract, and the Fund agrees to hold any such
nominee harmless from any liability as a holder of record of such
securities.
3.9 Liability of Foreign Sub-Custodians. Each agreement pursuant to which the
Custodian employs a foreign banking institution as a foreign sub-custodian
shall require the institution to exercise reasonable care in the
performance of its duties and to indemnify, and hold harmless, the
Custodian and each Fund from and against any loss, damage, cost, expense,
liability or claim arising out of or in connection with the institution's
performance of such obligations. At the election of the Fund, it shall be
entitled to be subrogated to the rights of the Custodian with respect to
any claims against a foreign banking institution as a consequence of any
such loss, damage, cost, expense, liability or claim if and to the extent
that the Fund has not been made whole for any such loss, damage, cost,
expense, liability or claim.
3.10 Liability of Custodian. The Custodian shall be liable for the acts or
omissions of a foreign banking institution to the same extent as set forth
with respect to sub-custodians generally in this Contract and, regardless
of whether assets are maintained in the custody of a foreign banking
institution, a foreign securities depository or a branch of a U.S. bank as
contemplated by paragraph 3.13 hereof, the Custodian shall not be liable
for any loss, damage, cost, expense, liability or claim resulting from
nationalization, expropriation, currency restrictions, or acts of war or
terrorism or any loss where the sub-custodian has otherwise exercised
reasonable care. Notwithstanding the foregoing provisions of this paragraph
3.10, in delegating custody duties to State Street London Ltd., the
Custodian shall not be relieved of any responsibility to the Fund for any
loss due to such delegation, except such loss as may result from (a)
political risk (including, but not limited to, exchange control
restrictions, confiscation, expropriation, nationalization, insurrection,
civil strife or armed hostilities) or (b) other losses (excluding a
bankruptcy or insolvency of State Street London Ltd. not caused by
political risk) due to Acts of God, nuclear incident or other losses under
circumstances where the Custodian and State Street London Ltd. have
exercised reasonable care.
3.11 Reimbursement for Advances. If the Fund requires the Custodian to advance
cash or securities for any purpose for the benefit of a Portfolio including
the purchase or sale of foreign exchange or of contracts for foreign
exchange, 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 applicable Portfolio 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 such Portfolios assets
to the extent necessary to obtain reimbursement.
3.12 Monitoring Responsibilities. The Custodian shall furnish annually to the
Fund, during the month of June, information concerning the foreign
sub-custodians employed by the Custodian. Such information shall be similar
in kind and scope to that furnished to the Fund in connection with the
initial approval of this Contract. In addition, the Custodian will promptly
inform the Fund in the event that the Custodian learns of a material
adverse change in the financial condition of a foreign sub-custodian or any
material loss of the assets of the Fund or in the case of any foreign
sub-custodian not the subject of an exemptive order from the Securities and
Exchange Commission is notified by such foreign sub-custodian that there
appears to be a substantial likelihood that its shareholders' equity will
decline below $200 million (U. S. dollars or the equivalent thereof) or
that its shareholders' equity has declined below $200 million (in each case
computed in accordance with generally accepted U. S. accounting
principles).
3.13 Branches of U.S. Banks.
(a) Except as otherwise set forth in this Contract, the provisions hereof
shall not apply where the custody of the Portfolios assets are maintained
in a foreign branch of a banking institution which is a "bank" as defined
by Section 2(a)(5) of the Investment Company Act of 1940 meeting the
qualification set forth in Section 26(a) of said Act. The appointment of
any such branch as a sub-custodian shall be governed by paragraph 1 of this
Contract.
(b) Cash held for each Portfolio of the Fund in the United Kingdom shall be
maintained in an interest bearing account established for the Fund with the
Custodian's London branch, which account shall be subject to the direction
of the Custodian, State Street London Ltd. or both.
4. Payments for Sales or Repurchases or Redemptions of Shares of the Fund
The Custodian shall receive from the distributor for the Shares or from the
Transfer Agent of the Fund and deposit into the account of the appropriate
Portfolio such payments as are received for Shares of that Portfolio issued or
sold from time to time by the Fund. The Custodian will provide timely
notification to the Fund on behalf of each such Portfolio and the Transfer Agent
of any receipt by it of payments for Shares of such Portfolio.
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 Board of
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 a Portfolio, 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.
5. Proper Instructions
Proper Instructions as used throughout this Contract means a writing signed
or initialled by one or more person or persons as the Board of 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 Board of Trustees of the Fund
accompanied by a detailed description of procedures approved by the Board of
Trustees, Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the Board of
Trustees and the Custodian are satisfied that such procedures afford adequate
safeguards for the Portfolios' assets. For purposes of this Section, Proper
Instructions shall include instructions received by the Custodian pursuant to
any three - party agreement which requires a segregated asset account in
accordance with Section 2.11.
6. Actions Permitted without Express Authority
The Custodian may in its discretion, without express authority from the
Fund on behalf of each applicable Portfolio:
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 on behalf of
the Portfolio;
2) surrender securities in temporary form for securities in definitive
form;
3) endorse for collection, in the name of the Portfolio, 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 Portfolio except as otherwise directed by the
Board of Trustees of the Fund.
7. 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 Board of
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 Board of 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.
8. 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 Board of Trustees of the Fund to keep the
books of account of each Portfolio and/or compute the net asset value per share
of the outstanding shares of each Portfolio or, if directed in writing to do so
by the Fund on behalf of the Portfolio, 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 Portfolio as described in the
Fund's currently effective prospectus related to such Portfolio 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 each Portfolio shall be made at the time or times described from
time to time in the Fund's currently effective prospectus related to such
Portfolio.
9. Records
The Custodian shall with respect to each Portfolio 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. 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 each Portfolio 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.
10. Opinion of Fund's Independent Accountant
The Custodian shall take all reasonable action, as the Fund on behalf of
each applicable Portfolio 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.
11. Reports to Fund by Independent Public Accountants
The Custodian shall provide the Fund, on behalf of each of the Portfolios
at such tines 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, 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, the reports shall so state.
12. 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 on
behalf of each applicable Portfolio and the Custodian.
13. 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, including any
futures commission merchant acting pursuant to the terms of a three-party
futures or options agreement. 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.
The Custodian shall be liable for the acts or omissions of a foreign
banking institution appointed pursuant to the provisions of Article 3 to the
same extent as set forth in Article 1 hereof with respect to sub-custodians
located in the United States (except as specifically provided in Article 3.10)
and, regardless of whether assets are maintained in the custody of a foreign
banking institution, a foreign securities depository or a branch of a U. S. bank
as contemplated by paragraph 3.11 hereof, the Custodian shall not be liable for
any loss, damage, cost, expense, liability or claim resulting from, or caused
by, the direction of or authorization by the Fund to maintain custody or any
securities or cash of the Fund in a foreign country including, but not limited
to, losses resulting from nationalization, expropriation, currency restrictions,
or acts of war or terrorism.
If the Fund on behalf of a Portfolio 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 or the Portfolio being liable for the payment
of money or incurring liability of some other form, the Fund on behalf of the
Portfolio, 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 for the benefit of a Portfolio including the purchase or sale of foreign
exchange or of contracts for foreign exchange 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 applicable Portfolio 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 such Portfolio's assets to
the extent necessary to obtain reimbursement.
14. 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 with respect to a Portfolio act under Section 2.10 hereof in
the absence of receipt of an initial certificate of the Secretary or an
Assistant Secretary that the Board of Trustees of the Fund has approved the
initial use of a particular Securities System by such Portfolio and the receipt
of an annual certificate of the Secretary or an Assistant Secretary that the
Board of Trustees has reviewed the use by such Portfolio of such Securities
System, as required in each case by Rule 17f-4 under the Investment Company Act
of 1940, as amended and that the Custodian shall not with respect to a Portfolio
act under Section 2.10A hereof in the absence of receipt of an initial
certificate of the Secretary or an Assistant Secretary that the Board of
Trustees has approved the initial use of the Direct Paper System by such
Portfolio and the receipt of an annual certificate of the Secretary or an
Assistant Secretary that the Board of Trustees has reviewed the use by such
Portfolio of the Direct Paper System; 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 on behalf of one or more of the Portfolios may
at any time by action of its Board of 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 on behalf of each applicable
Portfolio 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.
15. Successor Custodian
If a successor custodian for the Fund, of one or more of the Portfolios
shall be appointed by the Board of 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 of each
applicable Portfolio then held by it hereunder and shall transfer to an account
of the successor custodian all of the securities of each such Portfolio 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 Board of 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 Board of 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,OOO,OOO, all securities, funds and other
properties held by the Custodian on behalf of each applicable Portfolio and all
instruments held by the Custodian relative thereto and all other property held
by it under this Contract on behalf of each applicable Portfolio and to transfer
to an account of such successor custodian all of the securities of each such
Portfolio 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 the vote referred to or of
the Board of 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.
16. Interpretive and Additional Provisions
In connection with the operation of this Contract, the Custodian and the
Fund on behalf of each of the Portfolios, 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.
17. Additional Funds
In the event that the Fund establishes one or more series of Shares in
addition to Landmark Premium Cash Reserves with respect to which it desires to
have the Custodian render services as custodian under the terms hereof, it shall
so notify the Custodian in writing, and if the Custodian agrees in writing to
provide such services, such series of Shares shall become a Portfolio hereunder.
18. 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.
19. Prior Contracts
This Contract supersedes and terminates, as of the date hereof, all prior
contracts between the Fund on behalf of each of the Portfolios and the Custodian
relating to the custody of the Fund's assets.
20. Limitations of Liability of the Trustees and Shareholders
A copy of this Agreement and Declaration of Trust of the Trust is on file
with the Secretary of the Commonwealth of Massachusetts, and notice is hereby
given that this instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of this instrument are
not binding upon any of the Trustees or Shareholders individually but are
binding only upon the assets and property of the Fund.
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 13th day of December, 1989.
ATTEST LANDMARK PREMIUM FUNDS
/s/ Molly S. Mugler By: /s/ Philip Coolidge
- ----------------------------- -------------------------------
Molly S. Mugler Philip Coolidge
ATTEST STATE STREET BANK AND TRUST COMPANY
/s/ Peggy McClure By: /s/ Robert F. Dame
- ----------------------------- -------------------------------
Assistant Secretary Vice President
<PAGE>
EXHIBIT NO. 9(A)
AMENDED AND RESTATED
ADMINISTRATIVE SERVICES PLAN
AMENDED AND RESTATED ADMINISTRATIVE SERVICES PLAN, dated as of December
13, 1989 and amended and restated as of April 15, 1993, of Landmark Premium
Funds, 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 (par value $0.00001 per
share) of the Trust (the "Shares") are divided into one or more separate series
(together with any series which may in the future be established, the "Funds");
and
WHEREAS, the Trust desires to adopt this Amended and Restated
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 (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 with respect
to each Fund (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 each Shareholder
Servicing Agent will, as agent for its customers, provide certain services to
shareholders of one or more Funds (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 each Fund 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 act as dividend disbursing agent for the Trust and perform
transfer agency functions for each Fund. The Trust shall pay to the
Transfer Agent such compensation from the assets of each Fund 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 each Fund, handle
receipt and delivery of securities for each Fund, determine income and
collect interest on the investments of each Fund, maintain books of
original entry for Fund and Trust accounting and other required books
and accounts, calculate the daily net asset value of Shares of each
Fund and, in general, act as the custodian of the assets of the Trust
pertaining to each Fund, 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 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 and
minutes of meetings of Trustees, committees of Trustees and
shareholders; arranging for computation of performance statistics with
respect to each Fund 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 each Fund 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 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 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 and redemption transactions; arranging
for the wiring of funds; transmitting and receiving funds in connection
with customer orders to purchase and redeem Shares; verifying and
guaranteeing shareholder signatures in connection with redemption
orders and transfers and changes in shareholder-designated accounts;
furnishing periodic statements showing customer 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 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 shareholders of such Fund; 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 each such Fund 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 a Fund to the Administrator pursuant to the
Administrative Services Agreement, the fees payable from such Fund 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 such Fund to the Distributor pursuant
to the Trust's Distribution Plan may not exceed an amount equal to .45%
of such Fund's average daily net assets on an annualized basis for the
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 each
Fund, 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 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 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 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 any Fund by vote of a majority
of the Qualified Trustees or by a vote of a "majority of the
outstanding voting securities" of 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 a 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 that Fund for the computation of the net
asset value of Shares of that Fund.
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.
<PAGE>
EXHIBIT NO. 9(B)
ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT, dated as of April 15, 1993, by and
between Landmark Premium Funds, 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") are
divided into one or more separate series (together with any series which may in
the future be established, the "Funds");
WHEREAS, the Board of Trustees of the Trust has adopted an Administrative
Services Plan, dated as of December 13, 1989 (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 TrustOs assets or the rendering of
investment advice and supervision with respect thereto or the distribution
of Shares of any Fund, 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 each Fund'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 each Fund; expenses of shareholder meetings; and
expenses relating to the issuance, registration and qualification of shares
of each Fund.
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 each Fund 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 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 and the name of each Fund 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 willful 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 indefinitely, provided that its continuance 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 each Fund 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 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 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 Trust's Declaration of Trust,
dated May 23, 1989, 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 PREMIUM FUNDS 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 December 13, 1989 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 Premium Funds (the
"Trust"); and
WHEREAS, as permitted by Section 7 of the Administrative Agreement,
Citibank desires to subcontract some or all of the performance of the
Administrator's 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/ Peter P. Capaccio
--------------------------
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
LANDMARK PREMIUM FUNDS
and
STATE STREET BANK AND TRUST COMPANY
<PAGE>
TABLE OF CONTENTS
Page
Article 1 Terms of Appointment; Duties of the Bank..................2
Article 2 Fees and Expenses.........................................6
Article 3 Representations and Warranties of the Bank................7
Article 4 Representations and Warranties of the Fund................7
Article 5 Indemnification...........................................8
Article 6 Covenants of the Fund and the Bank.......................11
Article 7 Termination of Agreement.................................12
Article 8 Additional Funds.........................................13
Article 9 Assignment...............................................13
Article 10 Amendment................................................14
Article 11 Massachusetts Law to Apply...............................14
Article 12 Merger of Agreement......................................14
Article 13 Limitations of Liability of the Trustees and
the Shareholders.........................................14
Article 14 Counterparts.............................................14
<PAGE>
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 13th day of December 1989, by and between LANDMARK
PREMIUM FUNDS, a Massachusetts business trust, having its principal office and
place of business at 6 St. James Avenue, Boston, Massachusetts (the "Fund"), 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 Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets; and
WHEREAS, the Fund initially offers shares in one series, the Landmark
Premium Cash Reserves (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Article 8, being herein referred to as a "Portfolio", and
collectively as the "Portfolios");
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the Bank
as its transfer agent, dividend disbursing agent, custodian of certain
retirement plans and agent in connection with certain other activities 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 Fund, on behalf of the Portfolios, hereby employs and appoints
the Bank to act as, and the Bank agrees to act as its transfer agent for the
authorized and issued shares of beneficial interest of the Fund representing
interests in each of the respective Portfolios ("Shares"), dividend disbursing
agent, custodian of certain retirement plans and agent in connection with any
accumulation, open-account or similar plans provided to the shareholders of each
of the respective Portfolios of the Fund "Shareholders") and set out in the
currently effective prospectus and statement of additional information
("prospectus") of the Fund on behalf of the applicable Portfolio, including
without limitation any periodic investment plan or periodic withdrawal program.
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 Fund on behalf of each of the Portfolios, as applicable
and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the purchase of Shares,
and promptly deliver payment and appropriate documentation
thereof to the Custodian of the Fund authorized pursuant to
the Declaration of Trust of the Fund (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder
account;
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof
to the Custodian;
(iv) In respect to the transactions in items (i), (ii) and (iii)
above, the Bank shall execute transactions directly with
broker-dealers authorized by the Fund who shall thereby be
deemed to be acting on behalf of the Fund;
(v) 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 the redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of the
applicable Portfolio;
(viii) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon receipt
by the Bank of indemnification satisfactory to the Bank and
protecting the Bank and the Fund, and the Bank at its
option, may issue replacement certificates in place of
mutilated stock certificates upon presentation thereof and
without such indemnity;
(ix) Report abandoned property to the various states as
authorized by the Fund per policies and principles agreed
upon by the Fund and the Bank;
(x) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(xi) Record the issuance of Shares of the Fund and maintain
pursuant to SEC Rule 17Ad-lO(e) a record of the total number
of Shares which are authorized, based upon data provided to
it by the Fund, and issued and outstanding. The Bank shall
also provide the Fund on a regular basis with the total
number of Shares which are authorized and issued and
outstanding and shall have no obligation, when recording the
issuance of Shares, to monitor the issuance of such Shares
or to take cognizance of any laws relating to the issue or
sale of such Shares, which functions shall be the sole
responsibility of the Fund.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Bank shall: (i) perform the
customary services of a transfer agent, dividend disbursing agent, custodian of
certain retirement plans and, as relevant, agent in connection with
accumulation, open-account or similar plans (including without limitation any
periodic investment plan or periodic withdrawal program), 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 U.S.
resident and 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 nailing 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 Fund to monitor the total number of Shares sold
in each State.
(c) In addition, the Fund 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 systems prior to activation and thereafter monitor the daily activity for
each State. The responsibility of the Bank for the Fund's blue sky State
registration status is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Fund and the reporting of
such transactions to the Fund as provided above.
(d) Procedures as to who shall provide certain of these services in
Article 1 may be established from time to time by agreement between the Fund on
behalf of each Portfolio and the Bank per the attached service responsibility
schedule. The Bank may at times perform only a portion of these services and the
Fund or its agent nay perform these services on the Fund's behalf.
Article 2 Fees and Expenses
2.01 For performance by the Bank pursuant to this Agreement, the
Fund agrees on behalf of each of the Portfolios 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 Fund and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the Fund
agrees on behalf of each of the Portfolios 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 Fund, will be reimbursed by
the Fund on behalf of the applicable Portfolio.
2.03 The Fund agrees on behalf of each of the Portfolios to pay all
fees and reimbursable expenses within five days following the mailing of the
respective billing notice. Postage for mailing of dividends, proxies, Fund
reports and other mailings to all Shareholder accounts shall be advanced to the
Bank by the Fund 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 Fund that:
3.01 It is a trust company 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 Fund
The Fund represents and warrants to the Bank that:
4.01 It is a business trust duly organized and existing and in good
standing 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 and diversified management investment company
registered under the Investment Company Act of 1940, as amended.
4.05 A registration statement under the Securities Act of 1933, as
amended on behalf of each of the Portfolios 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 Fund being
offered for sale.
Article 5 Indemnification
5.01 The Bank shall not be responsible for, and the Fund shall on
behalf of the applicable Portfolio 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 Fund's lack of good faith, negligence or willful misconduct
which arise out of the breach of any representation or warranty of the Fund
hereunder.
(c) The reliance on or use by the Bank or its agents or
subcontractors of information, records and documents or services which (i) are
received or relied upon by the Bank or its agents or subcontractors and/or
furnished to it or performed by or on behalf of the Fund, and (ii) have been
prepared, maintained and/or performed by the Fund or any other person or firm on
behalf of the Fund.
(d) The reliance on, or the carrying out by the Bank or its agents
or subcontractors of any instructions or requests of the Fund on behalf of the
applicable Portfolio.
(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 Fund 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 Fund for
instructions, and may consult with legal counsel 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 Fund on behalf of the applicable Portfolio 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 Fund, reasonably believed to be genuine and to have been signed
by the proper person or persons, or upon any instruction, information, data,
records 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 Fund, and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Fund. 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 Fund, and the proper
countersignature of any former transfer agent or former 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
consequential damages arising out of any act or failure to act hereunder.
5.06 In order that the indemnification provisions contained in this
Article S 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 hare 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 Fund and the Bank
6.01 The Fund shall on behalf of each of the Portfolios promptly
furnish to the Bank the following
(a) A certified copy of the resolution of the Trustees of the Fund
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 Fund and
all amendments thereto
6.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund 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,
ant 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 Fund and will be preserved, maintained ant
made available in accordance with such Section and Rules, ant will be
surrendered promptly to the Fund on ant in accordance with its request
6.04 The Bank ant the Fund 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 ease of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the Fund and
to secure instructions from an authorized officer of the Fund 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 Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Fund on behalf of the applicable Portfolio(s) Additionally, the
Bank reserves the right to charge for any other reasonable expenses associated
with such termination and/or a charge equivalent to the average of three (3)
months' fees
Article 8 Additional Funds
8.01 In the event that the Fund establishes one or more series of
Shares in addition to Landmark Premium Cash Reserves with respect to which it
desires to have State Street render services as transfer agent under the terns
hereof, it shall so notify State Street in writing, and if State Street agrees
in writing to provide such services, such series of Shares shall become a
Portfolio hereunder.
Article 9 Assignment
9.01 Except as provided in Section 9.03 below, neither this
Agreement nor any rights or ent obligations hereunder may be assigned by either
party without the written consent of the other party.
9.02 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
9.03 The Bank say, without further consent on the part of the Fund,
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)(1) of the Securities Exchange Act of
1934, as amended ("Section 17A(c)(l)"), (ii) a BFDS subsidiary duly registered
as a transfer agent pursuant to Section 17A(c)(l) or (iii) a BFDS affiliate;
provided, however, that the Bank shall be as fully responsible to the Fund for
the acts and omissions of any subcontractor as it is for its own acts and
omissions.
Article 10 Amendment
10.01 This Agreement may be amended or modified by a written
agreement executed by both parties ant authorized or approved by a resolution of
the Trustees of the Fund
Article 11 Massachusetts Law to Apply
11.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts
Article 12 Merger of Agreement
12.01 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
Article 13 Limitations of Liability of the Trustees and Shareholders
13.01 A copy of this Agreement and Declaration of Trust of the Trust
is on file with the Secretary of the Commonwealth of Massachusetts, and notice
is hereby given that this instrument is executed on behalf of the Trustees of
the Trust as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees or Shareholders individually
but are binding only upon the assets and property of the Fund.
Article 14 Counterparts
14 01 This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one ant the same instrument
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by ant through their duly
authorized officers, as of the day and year first above written
LANDMARK PREMIUM FUNDS
BY: /s/Philip Coolidge
ATTEST
/s/ Molly S. Mugler
STATE STREET BANK AND TRUST COMPANY
By: [ illegible]
Vice President
ATTEST
[illegible]
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>
EXHIBIT 10
BINGHAM, DANA & GOULD
150 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110
February 5, 1991
Landmark Premium Funds
6 St. James Avenue
Boston, Massachusetts 02116
Ladies and Gentlemen:
We have acted as counsel to Landmark Premium Funds, a Massachusetts
business trust (the "Trust"), in connection with the Trust's Registration
Statement on Form N-1A to be filed with the Securities and Exchange Commission
(the "Commission") on February 6, 1991 (the "Registration Statement"), with
respect to an indefinite number of Shares of Beneficial Interest (par value
$0.00001 per share) of its series designated as Premium U.S. Treasury Reserves
(the "Shares").
In connection with this opinion, we have examined the following
described documents:
(a) the Registration Statement;
(b) a certificate of the Secretary of State of the Commonwealth of
Massachusetts as to the existence of the Trust;
(c) copies, certified by the Secretary of State of the Commonwealth of
Massachusetts, of the Trust's Declaration of Trust and of all amendments thereto
on file in the office of the Secretary of State; and
(d) a Certificate executed by Cynthia J. Colitti, the Secretary of the
Trust, certifying as to, and attaching copies of, the Trust's Declaration of
Trust, as amended, and By-Laws and certain votes of the Trustees of the Trust
authorizing the issuance of the Shares covered by the Registration Statement.
In such examination, we have assumed the genuineness of all signatures,
tbe conformity to the originals of all of the documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form and the legal competence of each individual
executing any document.
This opinion is based entirely on our review of the documents
listed above. We have made no other review or investigation of any kind
whatsoever, and we have assumed, without independent inquiry, the accuracy of
the information set forth in such documents.
This opinion is limited solely to the laws of the Commonwealth of
Massachusetts as applied by courts in such Commonwealth.
We understand that all of the foregoing assumptions and limitations are
acceptable to you.
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
Registration Statement and the Trust's Declaration of Trust and By-Laws, 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
RESTATED
DISTRIBUTION PLAN
DISTRIBUTION PLAN, dated as of December 13, 1989, and restated as of
April 18, 1991, of Landmark Premium Funds (formerly, Landmark Institutional Cash
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 (par value $0.00001 per
share) of the Trust (the "Shares") are divided into one or more separate series
(together with any series which may in the future be established, the "Series");
and
WHEREAS, the Trust intends to distribute the Shares of each Series 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 Trust desires to engage The Landmark Funds Broker-Dealer
Services, Inc., a Massachusetts corporation ("LFBDS"), to provide certain
distribution services for the Trust (the "Distributor"); and
WHEREAS, the Trust desires to enter into a distribution agreement (in
such form as may from time to time be approved by the Board of Trustees of the
Trust in the manner specified in Rule 12b-1 (the "Distribution Agreement")) with
the Distributor, whereby the Distributor will provide facilities and personnel
and render services to the Trust in connection with the offering and
distribution of the Shares of each Series; 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 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 Series
and its shareholders;
NOW, THEREFORE, the Board of Trustees hereby adopts this Plan for the
Trust 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 Shares of each Series to customers
of financial institutions which have entered into shareholder
servicing agreements with the Trust applicable to such Series.
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) and equipment.
3. As consideration for all services performed, the Trust may pay
the Distributor from the assets of each Series a fee at an
annual rate not to exceed 0.10% of the average daily net
assets of such Series for its then-current fiscal year in
anticipation of, or as reimbursement for, expenses incurred by
the Distributor in connection with the sale of Shares of such
Series such as advertising expenses and the expenses of
printing (excluding typesetting) and distributing prospectuses
and reports used for sales purposes, expenses of preparing and
printing sales literature and other distribution-related
expenses.
4. The Trust 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 Trust; 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 Trust;
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.
5. 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 responsibility for and
control of the conduct of the affairs of the Trust.
6. This Plan shall become effective upon (a) approval by a vote
of at least a "majority of the outstanding voting securities"
of the Trust, and (b) approval by a vote of the Board of
Trustees 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 agreement 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.
7. This Plan shall continue in effect indefinitely; provided,
however, that such continuance is subject to annual approval
by a vote of the Board of Trustees 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 date which is 15 months after the date of
the last approval.
8. 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 any
Series for the services described herein shall be effective
only upon approval by a vote of a "majority of the outstanding
voting securities" of such Series, and (b) any material
amendment of this Plan shall be effective only upon approval
by a vote of the Board of Trustees 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 any
Series by vote of a majority of the Qualified Trustees or by a
vote of a "majority of the outstanding voting securities" of
such Series.
9. The Trust and the Distributor each shall provide the Board of
Trustees, and the Board of Trustees shall review, at least
quarterly, a written report of the amounts expended under the
Plan and the purposes for which such expenditures were made.
10. 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.
11. 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 Trust's net assets of any Series shall be computed in the
manner specified in the Trust's then-current prospectus and
statement of additional information applicable to Shares of
such Series.
12. The Trust shall preserve copies of this Plan, and each
agreement related hereto and each report referred to in
paragraph 9 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.
13. This Plan shall be construed in accordance with the laws of
the Commonwealth of Massachusetts and the applicable
provisions of the 1940 Act.
14. 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 25(A)
LANDMARK PREMIUM FUNDS
The undersigned hereby constitutes and appoints Philip W. Coolidge, Richard S.
Enfield, Barbara M. O'Dette, 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 Statement on Form N-1A, and any and all amendments thereto, filed
by Landmark Premium Funds (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 15th day of
July, 1993.
/s/ James B. Craver /s/ Donald B. Otis
----------------------------- --------------------------
James B. Craver Donald B. Otis
/s/ Philip W. Coolidge /s/ William S. Woods, Jr.
----------------------------- --------------------------
Philip W. Coolidge William S. Woods, Jr.
/s/ Mark T. Finn
-----------------------------
Mark T. Finn
<PAGE>
EXHIBIT 25B
U.S. Treasury Reserves Portfolio for
LANDMARK U.S. TREASURY RESERVES
PREMIUM U.S. TREASURY RESERVES
LANDMARK INSTITUTIONAL U.S. TREASURY RESERVES
The undersigned, a Trustee of U.S. Treasury Reserves Portfolio, hereby
constitutes and appoints Philip W. Coolidge, James B. Craver, Richard S.
Enfield, Barbara M. Cahoon, Donald S. Rumery, Cynthia J. Collitti 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 Funds III (on behalf of its series, Landmark U.S.
Treasury Reserves), Landmark Premium Funds (on behalf of its series, Premium
U.S. Treasury Reserves) and Landmark Institutional Trust (on behalf of its
series, Landmark Institutiona1 U.S. Treasury 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 Commision,
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>
U.S. Treasury Reserves Portfolio for
LANDMARK U.S. TREASURY RESERVES
PREMIUM U.S. TREASURY RESERVES
LANDMARK INSTITUTIONAL U.S. TREASURY RESERVES
The undersigned hereby constitutes and appoints Philip W. Coolidge, Richard S.
Enfield, Barbara M. Cahoon, Donald S. Rumery, 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 Funds III (on behalf of its series, Landmark U.S.
Treasury Reserves), Landmark Premium Funds (on behalf of its series, Premium
U.S. Treasury Reserves) and Landmark Institutional Trust (on behalf of its
series, Landmark Institutiona1 U.S. Treasury 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 Commision,
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 5th day of
October, 1992.
/s/ James B. Craver
---------------------------------
James B. Craver
/s/ Philip W. Coolidge
---------------------------------
Philip W. Coolidge
<PAGE>
U.S. Treasury Reserves Portfolio for
LANDMARK U.S. TREASURY RESERVES
PREMIUM U.S. TREASURY RESERVES
LANDMARK INSTlTUTIONAL U.S. TREASURY RESERVES
The undersigned, a Trustee of U.S. Treasury Reserves Portfolio, hereby
constitutes and appoints Philip W. Coolidge, James B. Craver, Richard S.
Enfield, Barbara M. Cahoon, Donald S. Rumery, 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 Funds III (on behalf of its series, Landmark U.S.
Treasury Reserves), Landmark Premium Funds (on behalf of its series, Premium
U.S. Treasury Reserves) and Landmark Institutional Trust (on behalf of its
series, Landmark Institutiona1 U.S. Treasury 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 Commision,
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 24th day of
August, 1992.
/s/ Walter E. Robb, III
--------------------------------
Walter E. Robb, III
<PAGE>
U.S. Treasury Reserves Portfolio for
LANDMARK U.S. TREASURY RESERVES
PREMIUM U.S. TRESURY RESERVES
LANDMARK INSTITUTIONAL U.S. TREASURY RESERVES
The undersigned, a Trustee of U.S. Treasury Reserves Portfolio, hereby
constitutes and appoints Philip W. Coolidge, James B. Craver, Richard S.
Enfield, Barbara M. Cahoon, Donald S. Rumery, 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 Funds III (on behalf of its series, Landmark U.S.
Treasury Reserves), Landmark Premium Funds (on behalf of its series, Premium
U.S. Treasury Reserves) and Landmark Institutional Trust (on behalf of its
series, Landmark Institutiona1 U.S. Treasury 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 Commision,
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 7th day of
July, 1992.
/s/ Elliott J. Berv
-----------------------------------
Elliott J. Berv
<PAGE>
EXHIBIT 25C
Cash Reserves Portfolio
and
The Premium Portfolios
(each a "Portfolio" and collectively the "Portfolios")
By individual powers of attorney (the "Powers of Attorney"), the undersigned
James B. Craver has been appointed by each Trustee of each Portfolio as such
Trustee's attorney-in-fact, with full power of substitution, to execute, in the
name of and on behalf of such Trustee, each Registration Statement on Form N-1A,
and any and all amendments thereto, filed by each Portfolio or other investment
company with the Securities and Exchange Commission under the Investment Company
Act of 1940. Pursuant to the aforementioned power of substitution, the
undersigned hereby constitutes and appoints Susan Jakuboski as attorney-in-fact
for each such Trustee to execute documents which may be executed by the
undersigned under the Powers of Attorney.
The undersigned further hereby constitutes and appoints Susan Jakuboski as
attorney-in-fact for the undersigned to execute, in the name of and on behalf of
the undersigned, each such Registration Statement, and any and all amendments
thereto, as aforesaid.
Executed by the Undersigned in Nassau, the Bahamas, on September 25, 1994.
/s/ James B. Craver
----------------------
James B. Craver
<PAGE>
Cash Reserves Portfolio for
LANDMARK CASH RESERVES
PREMIUM LIQUID RESERVES
INSTITUTIONAL CASH MANAGEMENT FUND
LANDMARK INSTITUTIONAL LIQUID RESERVES
EXCELSIOR INSTITUTIONAL MONEY FUND
The undersigned, a Trustee of Cash Reserves Portfolio, hereby constitutes and
appoints Philip W. Coolidge, James B. Craver, Laura R. Young, Barbara M.
O'Dette, 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 Funds III (on
behalf of its series Landmark Cash Reserves), Landmark Premium Funds (on behalf
of its series Premium Liquid Reserves), Landmark Institutional Funds I (on
behalf of its series Institutional Cash Management Fund), Landmark Institutional
Trust (on behalf of its series Landmark Institutional Liquid Reserves) and
Excelsior Funds (on behalf of its series Excelsior Institutional Money Fund)
(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 Funds 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 6th day of
May, 1994 in Tuckers Town, Bermuda.
/s/ Elliott J. Berv
-------------------------
Elliott J. Berv
<PAGE>
Cash Reserves Portfolio for
LANDMARK CASH RESERVES
PREMIUM LIQUID RESERVES
INSTITUTIONAL CASH MANAGEMENT FUND
LANDMARK INSTITUTIONAL LIQUID RESERVES
EXCELSIOR INSTITUTIONAL MONEY FUND
The undersigned hereby constitutes and appoints Philip W. Coolidge, Cheri J.
Baumann, Barbara M. O'Dette, 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 Funds III (on behalf of its series Landmark Cash Reserves), Landmark
Premium Funds (on behalf of its series Premium Liquid Reserves), Landmark
Institutional Funds I (on behalf of its series Institutional Cash Management
Fund), Landmark Institutional Trust (on behalf of its series Landmark
Institutional Liquid Reserves) and Excelsior Funds (on behalf of its series
Excelsior Institutional Money Fund) (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 Funds to comply with the Securities Act of 1933, as amended, and
under 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 21st day of
October, 1993 in Toronto, Ontario, Canada.
/s/ Philip W. Coolidge
------------------------
Philip W. Coolidge
/s/ Elliott J. Berv
------------------------
Elliott J. Berv
/s/ Mark T. Finn
------------------------
Mark T. Finn
/s/ Walter E. Robb III
------------------------
Walter E. Robb III
