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<PAGE> PAGE 21
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<PAGE> PAGE 22
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<PAGE> PAGE 25
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<PAGE> PAGE 26
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<PAGE> PAGE 27
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<PAGE> PAGE 28
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<PAGE> PAGE 29
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<PAGE> PAGE 30
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<PAGE> PAGE 31
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<PAGE> PAGE 32
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<PAGE> PAGE 33
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<PAGE> PAGE 34
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<PAGE> PAGE 35
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<PAGE> PAGE 36
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<PAGE> PAGE 37
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<PAGE> PAGE 38
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<PAGE> PAGE 39
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<PAGE> PAGE 40
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<PAGE> PAGE 41
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<PAGE> PAGE 42
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<PAGE> PAGE 44
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<PAGE> PAGE 47
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SIGNATURE DAVID GOLDSTEIN
TITLE SECRETARY
To the Board of Trustees and Partners
Core Trust (Delaware)
In planning and performing our audit of the financial
statements of Index Portfolio, Income Equity Portfolio,
Disciplined Growth Portfolio, Large Company Growth
Portfolio, Small Cap Index Portfolio, Small Cap Value
Portfolio, Small Company Value Portfolio, Small
Company Growth Portfolio, International Portfolio and
International Equity Portfolio, ten portfolios of Core
Trust (Delaware) (the Trust), for the four month period
ended September 30, 1999, we considered its internal
control, including procedures for safeguarding securities,
in order to determine our auditing procedures for the
purpose of expressing our opinion on the financial
statements and to comply with the requirements of Form
N-SAR, not to provide assurance on internal control.
The management of the Trust is responsible for
establishing and maintaining internal control. In fulfilling
this responsibility, estimates and judgments by
management are required to assess the expected benefit
and related costs of controls. Generally, controls that are
relevant to an audit pertain to the entitys objective of
preparing financial statements for external purposes that
are fairly presented in conformity with generally accepted
accounting principles. Those controls include the
safeguarding of assets against unauthorized acquisition,
use, or disposition.
Because of inherent limitations in internal control, errors
or irregularities may occur and not be detected. Also,
projection of any evaluation of internal control to future
periods is subject to the risk that it may become
inadequate because of changes in conditions or that the
effectiveness of the design and operation may deteriorate.
Our consideration of the internal control would not
necessarily disclose all matters in internal control that
might be material weaknesses under standards established
by the American Institute of Certified Public
Accountants. A material weakness is a condition in
which the design or operation of any specific internal
control component does not reduce to a relatively low
level the risk that errors or irregularities in amounts that
would be material in relation to the financial statements
being audited may occur and not be detected within a
timely period by employees in the normal course of
performing their assigned functions. However, we noted
no matters involving internal control, including controls
over safeguarding securities, that we consider to be
material weaknesses as defined above as of September
30, 1999.
This report is intended solely for the information and use
of management, the Board of Trustees of Core Trust
(Delaware) and the Securities and Exchange Commission
and is not intended to be and should not be used by
anyone other than those specified parties.
/s/KPMG LLP
Boston, Massachusetts
November 18, 1999
Page
CORE TRUST (DELAWARE)
TRUST INSTRUMENT
AS AMENDED AND RESTATED ON NOVEMBER 1,1999
TABLE OF CONTENTS
Page
ARTICLE I -- THE TRUST
Section 1.1 Name 1
Section 1.2 Definitions 1
ARTICLE II -- TRUSTEES AND OFFICERS
Section 2.1 Number and Qualification 3
Section 2.2 Term and Election 3
Section 2.3 Resignation and Removal 3
Section 2.4 Vacancies 3
Section 2.5 Meetings 3
Section 2.6 Committees 4
Section 2.7 By-Laws 5
Section 2.8 Officers of the Trust 5
Section 2.9 Election, Tenure and
Removal of Officers 5
Section 2.10 Chairman, President
and Vice Presidents 5
Section 2.11 Secretary 5
Section 2.12 Treasurer 6
Section 2.13 Other Officers and Duties 6
ARTICLE III -- POWERS OF TRUSTEES
Section 3.1 General 6
Section 3.2 Investments 6
Section 3.3 Legal Title 7
Section 3.4 Sale of Interests 7
Section 3.5 Borrow Money 7
Section 3.6 Delegation 7
Section 3.7 Collection and Payment 7
Section 3.8 Expenses 7
Section 3.9 Miscellaneous Powers 7
Section 3.10 Further Powers 8
Section 3.11 Principal Transactions 8
ARTICLE IV -- INVESTMENT MANAGEMENT, CUSTODIAL AND
PRIVATE PLACEMENT ARRANGEMENTS
Section 4.1 Investment Management
and Other Arrangements 8
Section 4.2 Custodial Arrangements 9
Section 4.3 Parties to Contract 9
Section 4.4 Compliance with 1940 Act 9
ARTICLE V -- LIMITATIONS OF LIABILITY
Section 5.1 No Personal Liability of
Trustees, Holders 9
Section 5.2 Indemnification 10
Section 5.3 No Bond Required of Trustees 11
Section 5.4 No Duty of Investigation; Notice
in Trust Instruments, etc. 11
Section 5.5 Reliance on Experts, etc 11
Section 5.6 Holder Offering Documents 12
ARTICLE VI -- INTERESTS OF THE TRUST
Section 6.1 Interests 13
Section 6.2 Rights of Holders 13
Section 6.3 Purchase of or Increase in
Interests 13
Section 6.4 Register of Interests 14
Section 6.5 Non-Transferability 14
Section 6.6 Notices 14
Section 6.7 Assent to Trust Instrument 14
Section 6.8 Establishment of Series 14
Section 6.9 Assets and Liabilities of Series 14
ARTICLE VII -- DECREASES AND WITHDRAWALS
Section 7.1 Decreases and Withdrawals 15
ARTICLE VIII -- DETERMINATION OF BOOK CAPITAL ACCOUNT
BALANCES, NET ASSET VALUE, ALLOCATIONS
AND DISTRIBUTIONS
Section 8.1 Book Capital Account Balances 15
Section 8.2 Net Asset Value 16
Section 8.3 Allocation of Net Profits
and Net Losses 16
Section 8.4 Distributions 17
Section 8.5 Power to Modify Foregoing
Procedures 17
ARTICLE IX -- HOLDERS
Section 9.1 Meetings of Holders 17
Section 9.2 Notice of Meetings 17
Section 9.3 Record Date for Meetings 17
Section 9.4 Proxies, etc. 18
Section 9.5 Inspectors of Election 18
Section 9.6 Inspection of Records 18
Section 9.7 Holder Action by Written Consent 18
Section 9.8 Voting Powers 18
ARTICLE X -- DURATION; TERMINATION; DISSOLUTION; AMENDMENT;
MERGERS; ETC.
Section 10.1 Termination of Trust or
any Series 19
Section 10.2 Dissolution 19
Section 10.3 Amendment Procedure 20
Section 10.4 Merger, Consolidation or
Asset Sale 20
Section 10.5 Incorporation 20
ARTICLE XI -- MISCELLANEOUS
Section 11.1 Governing Law 21
Section 11.2 Counterparts 21
Section 11.3 Reliance by Third Parties 21
Section 11.4 Provisions in Conflict with
Law on Regulations 21
Section 11.5 Signatures 22
Section 11.6 Seal22
Section 11.7 Fiscal Year 22
Section 11.8 Waivers of Notice 22
Section 11.9 Reports 22
CORE TRUST (DELAWARE)
This TRUST INSTRUMENT of CORE TRUST (DELAWARE)
is restated and amended this 1st day of November,
1999 by the parties signatory hereto, as Trustees.
WHEREAS, having formed a business trust under the
law of Delaware for the investment and reinvestment
of the Trust's assets the Trustees do desire to
amend and restate the Trust Instrument executed on
September 1, 1994; and
WHEREAS, it is proposed that the trust assets be
composed of money and property contributed hereto
by the holders of interests in the trust entitled
to ownership rights in the trust;
NOW, THEREFORE, the Trustees hereby declare that
they will hold in trust all money and property
contributed to the trust fund to manage and dispose
of the same for the benefit of the holders of
interests in the trust and subject to the provisions
hereof, to wit:
ARTICLE I
The Trust
1.1. Name. The name of the trust created hereby
(the Trust) shall be Core Trust (Delaware), and
so far as may be practicable the Trustees shall
conduct the Trust's activities, execute all documents
and sue or be sued under that name, which name (and
the word Trust wherever hereinafter used) shall
refer to the Trustees as Trustees, and not
individually, and shall not refer to the officers,
agents, employees or holders of interests in the Trust.
However, should the Trustees determine that the use of
the name of the Trust is not advisable, they may select
such other name for the Trust as they deem proper and
the Trust may hold its property and conduct its
activities under such other name.
1.2. Definitions. As used in this Trust Instrument,
the following terms shall have the following meanings:
The terms Affiliated Person, Assignment and
Interested Person shall have the meanings given them in
the 1940 Act, as modified by any applicable order or
orders of the Commission or interpretive releases of the
Commission thereunder.
Book Capital Account shall mean, for any Holder of
Interests in a particular Series at any time, the Book
Capital Account of the Holder with respect to that Series
for such day, determined in accordance with Article VIII
of this Instrument.
Code shall mean the Internal Revenue Code of 1986,
as amended.
Commission shall mean the Securities and Exchange
Commission.
Delaware Act shall mean Chapter 38 of Title 12 of the
Delaware Code entitled Treatment of Delaware Business
Trusts, as it may be amended from time to time.
Fiscal Year shall mean, with respect to any Series,
an annual period as determined by the Trustees.
Holders shall mean as of any particular time all
holders of record of Interests of a Series of the Trust
at such time.
Instrument shall mean this Trust Instrument as amended
from time to time. References in this Instrument to
Instrument, hereof, herein and hereunder shall be
deemed to refer to the Instrument rather than the article
or section in which such words appear.
Interest(s) shall mean, with respect to each Series or
the Trust, the interest of a Holder in that Series or the
Trust, as applicable, including all rights, powers and
privileges accorded to such Holders in this Instrument,
which interest (i) in a Series, may be expressed as a
percentage, determined by calculating, at such times and
on such basis, as the Trustees shall from time to time
determine, the ratio of each Holder's Book Capital Account
balance to the total of all Holders' Book Capital Account
balances in that Series and (ii) in the Trust, may be
expressed as a percentage, determined by calculating,
at such times and on such basis, as the Trustees shall from
time to time determine, the ratio of each Holder's
aggregate capital account balance in all Series of the
Trust to the total of all Holders' capital account balances
in all Series of the Trust. Reference herein to a
specified percentage in, or fraction of, Interests of the
Holders in a Series means Holders whose combined Book
Capital Accounts represent such specified percentage or
fraction of the Book Capital Accounts of all Holders in
that Series.
Investment Manager shall mean any person furnishing
services to the Trust or any Series pursuant to any
investment management contract as described in
Section 4.1 hereof.
Majority Interests Vote shall mean, with respect to
the Trust or a Series thereof, the vote, at a meeting
of the Holders of the Trust or Series, as the case may
be, of (i) 67% or more of the Interests present or
represented at such meeting, if the Holders of more than
50% of the Interests of the Trust or Series, as the case
may be, are present or represented by proxy or (ii) more
than 50% of the Interests of the Trust or Series, as the
case may be, whichever is less.
Net Asset Value shall have the meaning assigned to that
term in Section 8.2 hereof.
Person shall mean and include individuals, corporations,
partnerships, trusts, associations, joint ventures and
other entities, whether or not legal entities, and
governments and agencies and political subdivisions thereof.
Registration Statement shall mean the Registration
Statement of the Trust under the 1940 Act, as amended
from time to time.
Series shall mean a series of Interests of the Trust
established in accordance with the provisions of
Article VI, Section 6.8 hereof.
Trustees shall mean the signatories to this Instrument,
so long as they shall continue in office in accordance with
the terms hereof, and all other persons who at the time in
question have been duly elected or appointed and have
qualified as trustees in accordance with the provisions
hereof and are then in office, who are herein referred to as
the Trustees, and reference in this Instrument to a Trustee
or Trustees shall refer to such person or persons in their
capacity as trustees hereunder.
Trust Property shall mean as of any particular time any and
all property, real or personal, tangible or intangible, which
at such time is owned or held by or for the account of the
Trust or any Series, or the Trustees on behalf of the Trust
or any Series.
The 1940 Act refers to the Investment Company Act of 1940,
as amended from time to time, and the rules and regulations
thereunder.
ARTICLE II
Trustees and Officers
2.1. Number and Qualification. The number of Trustees shall
be fixed from time to time by the Trustees then in office,
provided, however, that the number of Trustees shall in no event
be less than three or more than twelve. Any vacancy created by
an increase in Trustees may be filled by the appointment of an
individual having the qualifications described in this Article.
Any such appointment shall not become effective, however, until
the individual appointed shall have accepted such appointment
and agreed to be bound by the terms of this Instrument. No
reduction in the number of Trustees shall have the effect of
removing any Trustee from office. Whenever a vacancy in the
number of Trustees shall occur, until such vacancy is filled
as provided in Section 2.4 hereof, the Trustees in office,
regardless of their number, shall have all the powers granted
to the Trustees and shall discharge all the duties imposed
upon the Trustees by this Instrument.
2.2. Term and Election. Each Trustee named herein, or
elected or appointed hereunder, shall (except in the event
of resignations or removals or vacancies pursuant to Section
2.3 or 2.4 hereof) hold office until the Trustee's successor
has been elected and has qualified to serve as Trustee.
Beginning with the Trustees elected at the first meeting of
Holders, each Trustee shall hold office during the lifetime of
this Trust and until its termination as hereinafter provided
unless such Trustee resigns or is removed as provided in
Section 2.3 below.
2.3. Resignation and Removal. Any Trustee may resign their
trust (without need for prior or subsequent accounting) by an
instrument in writing signed by him and delivered or mailed to
the Chairman, if any, the President or the Secretary and such
resignation shall be effective upon such delivery, or at a later
date according to the terms of the instrument. Any of the
Trustees may be removed by the affirmative vote of the Holders
of two-thirds (2/3) of the Interests or (provided the aggregate
number of Trustees, after such removal and after giving effect
to any appointment made to fill the vacancy created by such
removal, shall not be less than the number required by Section
2.1 hereof) with cause, by the action of two-thirds of the
remaining Trustees. Removal with cause includes, but is not
limited to, the removal of a Trustee due to physical or mental
incapacity. Upon the resignation or removal of a Trustee, or the
Trustee's otherwise ceasing to be a Trustee, the Trustee shall
execute and deliver such documents as the remaining Trustees
shall require for the purpose of conveying to the Trust or the
remaining Trustees any Trust Property held in the name of the
resigning or removed Trustee. Upon the death of any Trustee or
upon removal or resignation due to any Trustee's incapacity to
serve as trustee, the Trustee's legal representative shall
execute and deliver on the Trustee's behalf such documents as
the remaining Trustees shall require as provided in the
preceding sentence.
2.4. Vacancies. The term of office of a Trustee shall
terminate and a vacancy shall occur in the event of the death,
resignation, adjudicated incompetence or other incapacity to
perform the duties of the office, or removal, of a Trustee
or increase in the number of Trustees. No such vacancy shall
operate to annul this Instrument or to revoke any existing
agency created pursuant to the terms of this Instrument. In
the case of a vacancy, the Holders of at least a majority of
the Interests entitled to vote, acting at any meeting of the
Holders held in accordance with Section 9.1 hereof, or a
majority vote of the Trustees continuing in office, may fill
such vacancy, and any Trustee so elected by the Trustees or
the Holders shall hold office as provided in this Instrument.
2.5. Meetings.
(a) Meetings of the Trustees shall be held from time to
time upon the call of the Chairman, if any, the President,
the Secretary, or any two Trustees. The Trustees may act
with or without a meeting. A quorum for all meetings of the
Trustees shall be a majority of the Trustees. Unless
provided otherwise in this Instrument, any action of the
Trustees may be taken by vote of a majority of the Trustees
present (a quorum being present) at a meeting duly called or
by unanimous written consent of the Trustees without a meeting.
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.
The Trustees by majority vote may delegate to any one or more
of their number their authority to approve particular matters
or take particular actions on behalf of the Trust.
(b) Regular meetings of the Trustees may be held without
call or notice at a time and place fixed by the Trustees.
Notice of any other meeting shall be given by mail, facsimile
or telegram (which term shall include a cablegram) or delivered
personally, which shall include by telephone. Notice of a
meeting designating the time, date and place of such meeting
shall be mailed not less than 72 hours or otherwise given not
less than 24 hours before the meeting but may be waived in
writing by any Trustee either before or after such meeting.
The attendance of a Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Trustee attends
a meeting for the express purpose of objecting, at the
commencement of such meeting, to the transaction of any
business on the ground that the meeting has not been lawfully
called or convened. Neither the business to be transacted at,
nor the purpose of, any meeting of the Board of Trustees need
be stated in the notice or waiver of notice of such meeting,
and no notice need be given of action proposed to be taken by
unanimous written consent.
(c) All or any one or more Trustees may participate in a
meeting of the Trustees or any committee thereof by means of
a conference telephone or similar communications equipment
by means of which all persons participating in the meeting
can hear each other and participation in a meeting pursuant
to such communications system shall constitute presence in
person at such meeting.
(d) The Chairman, if any, shall act as chairman at
all meetings of the Trustees; in the Chairman's absence the
President shall act as chairman; and, in the absence of the
Chairman and the President, the Trustees present shall elect
one of their number to act as temporary chairman. The
results of all actions taken at a meeting of the Trustees,
or by unanimous written consent of the Trustees, shall be
recorded by the Secretary.
(e) With respect to actions of the Trustees and any
committee of the Trustees, Trustees who are Interested
Persons of the Trust or otherwise interested in any action
to be taken may be counted for quorum purposes under this
Section 2.5, or with respect to committees, Section 2.6 of
this Instrument, and shall be entitled to vote to the extent
permitted by the 1940 Act.
2.6. Committees.
(a) Any committee of the Trustees may act with or
without a meeting. A quorum for all meetings of any
committee shall be a majority of the members thereof or
such lesser number as determined by the Trustees. Unless
provided otherwise in this Instrument, any action of any
committee may be taken by a vote of a majority of the members
present (a quorum being present) at a meeting or by
unanimous written consent of the members without a meeting
or by telephone meeting.
(b) 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 two (2) to hold office
at the pleasure of the Trustees, which shall have the power
to conduct the current and ordinary business of the Trust
while the Trustees are not in session, including the purchase
and sale of securities and the designation of securities to be
delivered upon decrease or withdrawal of Interests of the
Trust or any Series, and such other powers of the Trustees
as the Trustees may, from time to time, delegate to them
except those powers which by law or this Instrument they are
prohibited from 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, the
Committee may elect its own Chairman. 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.
(c) The Trustees may (1) provide for stated meetings of
any Committee; (2) specify the manner of calling and notice
required for special meetings of any Committee; (3) 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;
(4) 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 (5) authorize the
members of a Committee to meet by means of a telephone
conference circuit.
2.7. By-Laws. The Trustees may, but need not, adopt
By-Laws for the conduct of the business of the Trust and
may from time to time amend or repeal any By-Laws.
2.8. Officers of the Trust. The Trustees shall,
from time to time, elect a President, a Secretary and a
Treasurer. The Trustees may elect or appoint, from time
to time, a Chairman of the Board. The Trustees may elect
or appoint such other officers or assistant officers,
including Vice Presidents, as the business of the Trust
may require. The Trustees may delegate to any officer or
committee the power to appoint any subordinate officers or
agents. Any two or more of the offices may be held by the
same person, except that the same person may not be both
President and Secretary. The Trustees may designate a
Vice President as an Executive Vice President and may
designate the order in which the other Vice Presidents
may act. The Chairman and the President shall be Trustees,
but no other officer of the Trust need be a Trustee. Any
officer may be required by the Trustees to be bonded for
the faithful performance of the officer's duties in such
amount and with such sureties as the Trustees may determine.
2.9. Election, Tenure and Removal of Officers. At the
initial organization meeting and thereafter at each annual
meeting of the Trustees, the Trustees shall elect the
Chairman, if any, President, Secretary, Treasurer. The
Trustees may from time to time elect or appoint such other
officers as the Trustees shall deem necessary or appropriate
in order to carry out the business of the Trust and such
officers shall hold office until the next annual meeting of
the Trustees and until their successors have been duly
elected and qualified. The Trustees also may authorize or
appoint the President to appoint such other officers as the
Trustees shall deem necessary or appropriate in order to
carry out the business of the Trust. The Trustees may fill
any vacancy in office or add any additional officers at any
time. Any officer may be removed at any time, with or
without cause, by action of a majority of the Trustees.
This provision shall not prevent the making of a contract
of employment for a definite term with any officer and shall
have no effect upon any cause of action which any officer
may have as a result of removal in breach of a contract of
employment. Any officer may resign at any time by notice
in writing signed by such officer and delivered or mailed
to the Chairman, if any, President, or Secretary, and such
resignation shall take effect immediately, or at a later
date according to the terms of such notice in writing.
2.10. Chairman, President, and Vice Presidents. The
Chairman, if any, shall, if present, preside at all
meetings of the Holders and of the Trustees and shall
exercise and perform such other powers and duties as may
be from time to time assigned to him by the Trustees.
Subject to such supervisory powers, if any, as may be
given by the Trustees to the Chairman, if any, the
President shall be the chief executive officer of the
Trust and, subject to the control of the Trustees, shall
have general supervision, direction and control of the
business of the Trust and of its employees and shall
exercise such general powers of management as are usually
vested in the office of President of a corporation. In
the absence of the Chairman, if any, the President shall
preside at all meetings of the Holders and the Trustees.
Subject to direction of the Trustees, the Chairman, if
any, and the President shall each have power in the name
and on behalf of the Trust to execute any and all loan
documents, contracts, agreements, deeds, mortgages, and
other instruments in writing, and to employ and discharge
employees and agents of the Trust. Unless otherwise
directed by the Trustees, the Chairman, if any, and the
President shall each have full authority and power, on
behalf of all of the Trustees, to attend and to act and
to vote, on behalf of the Trust, at any meetings of
business organizations in which the Trust holds an
interest, or to confer such powers upon any other
persons, by executing any proxies duly authorizing such
persons. The Chairman, if any, and the President shall
have such further authorities and duties as the Trustees
shall from time to time determine. In the absence or
disability of the President, the Vice Presidents in order
of their rank or the Vice President designated by the
Trustees, shall perform all of the duties of President,
and when so acting shall have all the powers of and be
subject to all of the restrictions upon the President.
Subject to the direction of the President, each Vice
President shall have the power in the name and on behalf
of the Trust to execute any and all loan documents,
contracts, agreements, deeds, mortgages and other
instruments in writing, and, in addition, shall have
such other duties and powers as shall be designated
from time to time by the Trustees or by the President.
2.11. Secretary. The Secretary shall keep the minutes
of all meetings of, and record all votes of, Holders,
Trustees and the Executive Committee, if any. The
Secretary shall be custodian of the seal of the Trust,
if any, and the Secretary (and any other person so
authorized by the Trustees) shall affix the seal or,
if permitted, a facsimile thereof, to any instrument
executed by the Trust which would be sealed by a
Delaware corporation executing the same or a similar
instrument and shall attest the seal and the signature
or signatures of the officer or officers executing such
instrument on behalf of the Trust. The Secretary shall
also perform any other duties commonly incident to such
office in a Delaware business corporation, and shall have
such other authorities and duties as the Trustees shall
from time to time determine.
2.12. Treasurer. Except as otherwise directed by the
Trustees, the Treasurer shall have the general supervision
of the monies, funds, securities, notes receivable and
other valuable papers and documents of the Trust, and shall
have and exercise under the supervision of the Trustees and
of the President all powers and duties normally incident to
the President's office. The Treasurer may endorse for
deposit or collection all notes, checks and other instruments
payable to the Trust or to its order. The Treasurer shall
deposit all funds of the Trust as may be ordered by the
Trustees or the Treasurer. The Treasurer shall deliver all
funds of the Trust which may come into the Treasurer's hands
to such Custodian as the Trustees may employ pursuant to
Article V of these By-Laws. The Treasurer shall keep accurate
account of the books of the Trust's transactions which shall
be the property of the Trust, and which together with all other
property of the Trust in the Treasurer's possession, shall be
subject at all times to the inspection and control of the
Trustees. Unless the Trustees shall otherwise determine, the
Treasurer shall be the principal accounting officer of the
Trust and shall also be the principal financial officer of
the Trust. The Treasurer shall have such other duties and
authorities as the Trustees or President shall from time to
time determine. Notwithstanding anything to the contrary
herein contained, the Trustees may authorize any investment
adviser, administrator or manager to maintain bank accounts and
deposit and disburse funds on behalf of the Trust.
2.13. Other Officers and Duties. The Trustees may elect
such other officers and assistant officers as they shall from
time to time determine to be necessary or desirable in order
to conduct the business of the Trust. Assistant officers shall
act generally in the absence of the officer whom they assist and
shall assist that officer in the duties of their office. Each
officer, employee and agent of the Trust shall have such other
duties and authority as may be conferred upon him by the Trustees
or delegated to him by the President.
ARTICLE III
Powers of Trustees
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 this Instrument.
The Trustees may perform such acts as in their sole discretion
are proper for conducting the business of the Trust. The
enumeration of any specific power herein shall not be construed
as limiting the aforesaid power. Such powers of the Trustees
may be exercised without order of or resort to any court.
3.2. Investments. The Trustees shall have power to:
(a) Conduct, operate and carry on the business of an
investment company;
(b) Subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer,
exchange, distribute or otherwise deal in or dispose of any
form of property including United States and foreign currencies
and related instruments including forward contracts, and
securities, including common and preferred stocks, warrants,
bonds, debentures, time notes and all other evidences of
indebtedness, negotiable or non-negotiable instruments,
obligations, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, reverse repurchase
agreements, convertible securities, forward contracts, options,
futures contracts, and other securities, including, without
limitation, those issued, guaranteed or sponsored by any state,
territory or possession of the United States and the District
of Columbia and their political subdivisions, agencies and
instrumentalities, or by the United States Government, any
foreign government, or any agency, instrumentality or
political subdivision of the United States Government or
any foreign government, or international instrumentalities,
or by any bank, savings institution, corporation or other
business entity organized under the laws of the United
States or under foreign laws; 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, firms,
associations or corporations to exercise any of said rights,
powers and privileges in respect of any of said instruments;
and the Trustees shall be deemed to have the foregoing powers
with the respect to any additional securities in which the
Trustees may determine to invest.
The Trustees shall not be limited to investing in 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.
3.3. Legal Title. Legal title to all the Trust Property
shall be vested in the Trustees as joint tenants except that
the Trustees shall have the 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 on behalf of the Trust, 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 Trustee's due election
and qualification. Upon the resignation, removal or death
of a Trustee, the 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.
3.4. Sale of Interests. Subject to the more detailed
provisions set forth in Articles VII and VIII, the
Trustees shall have the power to permit persons to
purchase Interestsand to add to or reduce, in whole or
in part, their Interestin the Trust or any Series thereof.
3.5. Borrow Money. 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 theassets of the Trust, including the lending of
portfolio securities, and to endorse, guarantee or
undertake the performance of any obligation, contract
or engagement of any other person, firm, association or
corporation.
3.6. Delegation. The Trustees shall have power,
consistent with their continuing exclusive authority
over the management of the Trust and the Trust Property,
to delegate from time to time to such of their number or
to officers, employees or agents of the Trust the doing of
such things and the execution of such instruments either in
the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient.
3.7. Collection and Payment. The Trustees shall have
power to collect all property due to the Trust; and 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.
3.8. Expenses. The Trustees shall have power to incur
and pay all expenses which in the opinion of the Trustees
are necessary or incidental to carry out any of the purposes
of this Instrument, and to pay reasonable compensation from
the funds of the Trust or the assets of the appropriate Series
to themselves as Trustees. The Trustees shall fix the
compensation of all officers, employees and Trustees.
The Trustees may pay themselves such compensation for special
services, including legal and brokerage services, as they
in good faith may deem reasonable, and reimbursement for
expenses reasonably incurred by themselves on behalf of the
Trust or any Series thereof.
3.9. 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 and terminate such employees or
contractual relationships as they consider appropriate;
(b) enter into joint ventures, partnerships and any other
combinations or associations; (c) purchase, and pay for
out of Trust Property or the assets of the appropriate
Series, insurance policies insuring the Investment Manager,
placement agent, Holders, Trustees, officers, employees,
agents, 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 the Trust would
have the power to indemnify such Person against such
liability; (d) establish pension, profit-sharing and
other retirement, incentive and benefit plans for any
Trustees, officers, employees and agents of the Trust;
(e) make donations, irrespective of benefit to the Trust,
for charitable, religious, educational, scientific, civic
or similar purposes; (f) to the extent permitted by law,
indemnify any Person with whom the Trust has dealings,
including the Investment Manager, placement agent,
Holders, Trustees, officers, employees, agents or
independent contractors of the Trust, to such extent
as the Trustees shall determine; (g) guarantee
indebtedness or contractual obligations of others;
(h) determine and change the Fiscal Year of each Series
of the Trust and the method in which its accounts shall
be kept; (i) adopt a seal for the Trust, but the absence
of such seal shall not impair the validity of any
instrument executed on behalf of the Trust; (j) establish
separate and distinct Series with separately defined
investment objectives and policies and distinct investment
purposes in accordance with the provisions of Article VI
hereof; (k) subject to the provisions of Section 3804 of
the Delaware Act, allocate assets, liabilities and
expenses of the Trust to a particular Series or apportion
the same between or among two or more Series, provided that
any liabilities or expenses incurred by a particular Series
shall be payable solely out of the assets belonging to that
Series as provided for in Article VI hereof; (l) establish,
from time to time, a minimum investment for Holders in the
Trust or in one or more Series, and require the withdrawal
of any Holder whose investment is less than such minimum
upon giving notice to such Holder and; (m) appoint, or
authorize any officer or officers to appoint, one or
more registrars of the Trust.
3.10. Further Powers. 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, whether within or without the State of Delaware,
in any and all states of the United States of America,
in the District of Columbia, and in any and all
commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities of the United
States of America and of foreign governments, and to do
all such other things and execute all such instruments
as they deem necessary, proper or desirable in order to
promote the interests of the Trust although such things
are not herein specifically mentioned. Any determination
as to what is in the interests of the Trust made by the
Trustees in good faith shall be conclusive. In
construing the provisions of this Instrument, the
presumption shall be in favor of a grant of power to
the Trustees. The Trustees will not be required to
obtain any court order to deal with Trust Property.
3.11. Principal Transactions. The Trustees may, on
behalf of the Trust, buy any securities from or sell
any securities to, or lend any assets of the Trust or
any Series 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 manager, placement agent or transfer
agent for the Trust or with any Interested Person of such
person; and the Trust may employ any such person, or firm
or company in which such person is an Interested Person,
as broker, legal counsel, registrar, investment manager,
placement agent, transfer agent, dividend disbursing
agent, custodian or in any other capacity upon customary
terms.
ARTICLE IV
Investment Management, Custodial
and Private Placement Arrangements
4.1. Investment Management and Other Arrangements.
The Trustees may in their discretion, from time to time,
enter into investment management contracts or placement
agent agreements with respect to the Trust or any Series
whereby the other party to such contract or agreement
shall undertake to furnish the Trustees such investment
management, placement agent and/or other services as the
Trustees shall, from time to time, consider desirable and
all upon such terms and conditions as the Trustees may in
their discretion determine. Notwithstanding any provisions
of this Instrument, the Trustees may authorize any Investment
Manager (subject to such general or specific instruments as
the Trustees may, from time to time, adopt) to effect
purchases, sales, loans or exchanges of Trust Property 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 any such Investment
Manager (and all without further action by the Trustees).
Any such purchases, sales, loans and exchanges shall be
deemed to have been authorized by all of the Trustees.
4.2. Custodial Arrangements.
(a) The Trustees shall at all times employ a bank, a
company that is a member of a national securities exchange,
or a trust company, each having capital, surplus and
undivided profits of at least two million dollars
($2,000,000) as custodian with authority as the Trust's
agent, but subject to such restrictions, limitations and
other requirements as the Trustees shall determine (i) to
hold the securities owned by the Trust and deliver the same
upon written order or oral order confirmed in writing; (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; and (iii) to disburse such funds
upon orders or vouchers.
(b) 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, as amended, or such other
person as may be permitted by the Commission, or otherwise
in accordance with the 1940 Act, pursuant to which system
all securities of any particular class or series of any
issuer deposited within the system are treated as fungible
and may be transferred or pledged by bookkeeping entry
without physical delivery of such securities, provided that
all such deposits shall be subject to withdrawal only upon
the order of the Trust or its custodians, subcustodians or
other agents.
(c) The funds of the Trust shall be deposited in such
depositories as the Trustees shall designate and shall be
drawn out on checks, drafts or other orders signed by such
officer, officers, agent or agents (including any investment
adviser, administrator or manager), as the Trustees may from
time to time authorize.
4.3. Parties to Contract. Any contract may be entered
into with any corporation, firm, trust or association,
although one or more of the Trustees or officers of the
Trust may be an officer, director, trustee, shareholder,
or member of such other party to the contract, and no such
contract shall be invalidated or rendered void or voidable
by reason of the existence of any such relationship, nor
shall any person holding such relationship be disqualified
from voting on or executing the same in the Holder's and/or
Trustee's capacity as Holder and/or Trustee, nor shall any
person holding such relationship be liable merely by reason
of such relationship for any loss or expense to the Trust
under or by reason of said contract or accountable for any
profit realized directly or indirectly therefrom. The same
person (including a firm, corporation, trust, or association)
may be the other party to contracts entered into pursuant to
Sections 4.1 or 4.2 above or otherwise, and any person may be
financially interested or otherwise affiliated with persons
who are parties to any or all of the contracts mentioned in
this Section 4.3.
4.4. Compliance with 1940 Act. Any contract entered into
pursuant to Section 4.1 shall be consistent with and subject
to the requirements of Section 15 of the 1940 Act, as modified
by any applicable order or orders of the Commission or
interpretive releases of the Commission thereunder, with
respect to its continuance in effect, its termination and
the method of authorization and approval of such contract or
renewal thereof.
ARTICLE V
Limitations of Liability
5.1. No Personal Liability of Trustees, Holders. No
Trustee, when acting in such capacity, shall be subject
to any personal liability whatsoever to any Person, other
than the Trust or its Holders, in connection with Trust
Property or the affairs of the Trusts. No Trustee,
when acting in such capacity, shall be subject to any
personal liability whatsoever, provided that nothing
contained herein or in the Delaware Act shall protect
any Trustee against any liability to the Trust or its
Holders to which he would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct
of the office of Trustees hereunder. No Holder shall be
subject to any personal liability whatsoever to any Person
in connection with Trust Property or the affairs of the
Trust. The Trustees shall have no power to bind any Holder
personally or to call upon any Holder for the payment of
any sum of money or assessment whatsoever other than such
as the Holder may at any time personally agree to pay by
way of purchase of or increase in Interests or otherwise.
5.2. Indemnification.
(a) Subject to the exceptions and limitations contained
in Section (b) below:
(i) Every Person who is, or has been, a Trustee
or officer of the Trust (hereinafter referred to as a
Covered Person) shall be indemnified by the Trust to
the fullest extent permitted by law against 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 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 or other, including appeals),
actual or threatened while in office or thereafter, 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 Covered Person:
(i) Who shall have been adjudicated by a
court or body before which the proceeding was brought
(A) to be liable to the Trust or its Holders by reason
of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct
of the Covered Person's office or (B) not to have acted
in good faith in the reasonable belief that Covered
Person's action was in the best interest of the Trust;
or
(ii) In the event of a settlement, unless there
has been a determination that such Trustee or officer did
not engage in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved
in the conduct of the Trustee's or officer's office,
(A) By the court or other body
approving the settlement;
(B) By at least a majority of those
Trustees who are neither Interested
Persons of the Trust nor are parties
to the matter based upon a review of
readily available facts (as opposed to
a full trial-type inquiry); or
(C) By written opinion of independent legal
counsel based upon a review of readily
available facts (as opposed to a full
trial-type inquiry);
provided, however, that any Holder may, by appropriate
legal proceedings, challenge any such determination by
the Trustees or by independent counsel.
(c) The rights of indemnification herein provided
may be insured against by policies maintained by the Trust,
shall be severable, shall not be exclusive of or affect any
other rights to which any Covered Person may now or
hereafter be entitled, shall continue as to a person who
has ceased to be a Covered Person and shall inure to the
benefit of the heirs, executors and administrators of such
a person. Nothing contained herein shall affect any rights
to indemnification to which Trust personnel, other than
Covered Persons, and other persons may be entitled by
contract or otherwise under law.
(d) Expenses in connection with the preparation
and presentation of a defense to any claim, action,
suit or proceeding of the character described in
paragraph (a) of this Section 5.2 may be paid by the
Trust or Series from time to time prior to final
disposition thereof upon receipt of an undertaking
by or on behalf of such Covered Person that such amount
will be paid over by him to the Trust or Series if it
is ultimately determined that he is not entitled to
indemnification under this Section 5.2; provided,
however, that either (a) such Covered Person shall
have provided appropriate security for such undertaking,
(b) the Trust is insured against losses arising out of
any such advance payments or (c) either a majority of
the Trustees who are neither Interested Persons of the
Trust nor parties to the matter, or independent legal
counsel in a written opinion, shall have determined,
based upon a review of readily available facts (as
opposed to a trial-type inquiry or full investigation),
that there is reason to believe that such Covered Person
will be found entitled to indemnification under this
Section 5.2.
(e) Conditional advancing of indemnification monies
under this Section 5.2 for actions based upon the 1940
Act may be made only on the following conditions:
(i) the advances must be limited to amounts used,
or to be used, for the preparation or presentation
of a defense to the action, including costs connected
with the preparation of a settlement; (ii) advances may
be made only upon receipt of a written promise by, or
on behalf of, the recipient to repay that amount of the
advance which exceeds that amount which it is ultimately
determined that he is entitled to receive from the Trust
by reason of indemnification; and (iii) (a) such promise
must be secured by a surety bond, other suitable
insurance or an equivalent form of security which assures
that any repayments may be obtained by the Trust without
delay or litigation, which bond, insurance or other form
of security must be provided by the recipient of the
advance, or (b) a majority of a quorum of the Trust's
disinterested, non-party Trustees, or an independent
legal counsel in a written opinion, shall determine,
based upon a review of readily available facts, that
the recipient of the advance ultimately will be found
entitled to indemnification.
(f) In case any Holder or former Holder of any
Series shall be held to be personally liable solely
by reason of the Holder or former Holder being or
having been a Holder of that Series and not because
of the Holder or former Holder acts or omissions or for
some other reason, the Holder or former Holder (or the
Holder or former Holder's heirs, executors, administrators
or other legal representatives, or, in the case of a
corporation or other entity, its corporate or other
general successor) shall be entitled out of the assets
belonging to the applicable Series to be held harmless
from and indemnified against all loss and expense arising
from such liability. The Trust, on behalf of the affected
Series, shall, upon request by the Holder, assume the
defense of any claim made against the Holder for any act
or obligation of the Series and satisfy any judgment
thereon from the assets of the Series.
5.3. No Bond Required of Trustees. No Trustee shall,
as such, be obligated to give any bond or surety or
other security for the performance of any of the Trustee's
duties hereunder.
5.4. No Duty of Investigation; Notice in Trust
Instruments, etc. No purchaser, lender, 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 or other interest or
undertaking of the Trust or any Series, and every other
act or thing whatsoever executed in connection with the
Trust or any Series, shall be conclusively taken to have
been executed or done by the executors thereof only in
their capacity as Trustees, officers, employees or agents
of the Trust. Every written obligation, contract,
instrument, certificate or other interest or undertaking
of the Trust or any Series made or sold by the Trustees
or by any officer, employee or agent of the Trust, in
their capacity as such, shall contain an appropriate
recital to the effect that the Trustee, officer, employee
and agent of the Trust shall not personally be bound by
or liable thereunder, nor shall resort be had to their
private property for the satisfaction of any obligation
or claim thereunder, and appropriate references shall be
made therein to the Instrument, and may contain any
further recital which they may deem appropriate, but
the omission of such recital shall not operate to impose
personal liability on any of the Trustees, officers,
employees or agents of the Trust. The Trustees may
maintain insurance for the protection of the Trust
Property, its Holders, 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.
5.5. Reliance on Experts, etc. Each Trustee and officer
or employee of the Trust shall, in the performance of the
Trustee's, officer's and employee's 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 or any Series, upon an opinion of counsel, or
upon reports made to the Trust or any Series by any of
its officers or employees or by any Investment Manager,
accountant, appraiser 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.
5.6 Holder Offering Documents. (a) Each Holder
of an Interest shall indemnify and hold harmless the
Trust and each Covered Person against any losses,
claims, damages or liabilities, joint or several,
to which the Trust or such Covered Person may become
subject, under the 1933 Act or otherwise, specifically
including but not limited to losses, claims, damages
or liabilities related to negligence on the part of
the Trust or any Covered Person, insofar as such losses,
claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any Misstatement
in a Holder Statement; and each Holder further agrees to
reimburse the Trust and each Covered Person for any legal
or other expenses reasonably incurred by it in connection
with investigating or defending any such loss, claim,
damage, liability or action; provided, however that the
Holder of an Interest shall not be liable in any such
case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any Misstatement
made in such Holder Statement in reliance upon and in
conformity with written information furnished to such
Holder by the Trust or such Covered Person for use in
the preparation thereof. The foregoing proviso shall
not apply to exculpate a Holder under this Section 5.6(a)
with respect to any losses, claims, damages or liabilities
to which the Trust or any such Covered Person may become
subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out
of or are based upon any Misstatement in any Holder
Statement or portion thereof of such Holder, if such
Misstatement only relates to (i) any investment company
or series thereof that does not and does not propose,
as of the time the Misstatement is made, to invest all
or a portion of its assets in a Series of the Trust or
(ii) to an offering of securities (as defined under the
1933 Act) of such Holder or its affiliates the proceeds
from which are not and are not proposed, as of the time
the Misstatement is made, to be invested in a Series of
the Trust.
The indemnity provisions of this Section 5.6(a) shall
inure to the benefit of each person, if any, who controls
the Trust or any Covered Person within the meaning of the
1933 Act.
(b) The Trust shall indemnify and hold harmless each
Holder against any losses, claims, damages or liabilities,
joint or several, to which such Holder may become subject
under the 1933 Act or otherwise, specifically including
but not limited to losses, claims, damages or liabilities
(or actions in respect thereof) that arise out of or are
based upon any Misstatement in the Holder Statement of
such Holder, in each case to the extent, but only to the
extent, that such Misstatement was made in reliance upon
and in conformity with written information furnished to
such Holder by the Trust for inclusion therein, and will
reimburse such Holder for any legal or other expenses
reasonably incurred by such Holder in connection with
investigating or defending any such loss, claim,
damage, liability or action.
This indemnity provision in this Section 5.6(b) shall
extend upon the same terms and conditions to, and
shall inure to the benefit of, each officer and director
of each Holder and each person, if any, who controls such
Holder within the meaning of the 1933 Act.
(c) Promptly after receipt by an indemnified party
under this Section 5.6 of notice of the commencement of
any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying
party under Section 5.6(a) or 5.6(b), notify the
indemnifying party in writing of the commencement
thereof, but the omission so to notify the indemnifying
party will not relieve it from any liability which it
may have to any indemnified party otherwise than under
Section 5.6(a) or 5.6(b). In case any such action is
brought against any indemnified party, and it notified
the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such
action include both the indemnified parties and the
indemnifying party and the indemnified party shall have
reasonably concluded that there are legal defenses
available to it and/or other indemnified parties that
are different from or additional to those available
to the indemnifying party and that as a result thereof,
the indemnified party shall reasonably conclude that it
is inadvisable for it to be represented by counsel for
the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of the
indemnifying party's election so to assume the defense
of such action and approval by the indemnified party of
counsel (or the unreasonable withholding of such
approval), the indemnifying party will not be liable to
such indemnified party under Section 5.6(a) or 5.6(b) for
any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the
immediately preceding sentence (it being understood,
however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel
approved by the indemnifying party, representing all
the indemnified parties under Section 5.6(a) or 5.6(b)
hereof who are parties to such action), (ii) the
indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable
time after notice of commencement of the action, or
(iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at
the expense of the indemnifying party. In no event
shall any indemnifying party be liable in respect of
any amounts paid in settlement of any action unless
the indemnifying party shall approved the terms of
such settlement; provided, however, that such consent
shall not be unreasonably withheld or delayed.
(d) For purposes of this Section 5.6, the following
terms shall have the following meanings:
Holder Statement shall mean any registration statement
or prospectus, as such terms are defined under the 1933
Act, or any other material or information, written or
oral, distributed or communicated to shareholders or
partners, or prospective shareholders or partners, of
a Holder by or at the direction of such Holder,
including, without limitation, proxies and proxy
statements, as such terms are defined under the 1940
Act and the Securities Exchange Act of 1934, as amended.
Misstatement shall mean, with respect to any Holder
Statement, any untrue statement or alleged untrue
statement of any material fact, or any omission or
alleged omission to state a material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances in which they
were made, not misleading.
1933 Act shall mean the Securities Act of 1933, as
amended, and the rules and regulations thereunder.
1940 Act shall mean the Investment Company Act of
1940, as amended, and the rules and regulations
thereunder.
(e) The provisions of this Section 5.6 shall
apply to each Holder effective on the date such Holder
becomes a shareholder of the Trust and shall survive
after such Holder no longer holds an interest in the
Trust.
(f) Notwithstanding anything else herein, no
amendment to Section 5.6 shall be effective until at
least 30 days after the Trust has delivered all Holders
(as of the date of such notice) written notice of such
amendment.
ARTICLE VI
Interests of the Trust
6.1. Interests. The beneficial interest in the
property of the Trust shall be divided into Interests
of one or more separate and distinct Series as the
Trustees shall from time to time create and establish.
The Trustees may permit the purchase of Interests in
any Series by any number of Persons. Subject to
applicable law and to such restrictions as may be
adopted by the Trustees, a Holder may increase or
decrease its Interest in any Series without limitation.
6.2. Rights of Holders. 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 Holders shall
have no right or title therein other than the
beneficial interest conferred by their Interests and
they shall have no right to call for any partition or
division of any property, profits or rights of the Trust.
The Interests shall be personal property giving only the
rights specifically set forth in this Instrument.
6.3. Purchase of or Increase in Interests. The Trustees,
in their discretion, may, from time to time, without
a vote of the Holders, permit the purchase of
Interests of any Series by such party or parties
(or increase in the Interest of a Holder in any Series)
and for such type of consideration, including cash or
property, at such time or times (including, without
limitation, each business day), 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; provided,
however, that the Trustees may not permit the purchase
of Interests of any Series if any Series would have more
than 500 Holders. The Trustees may make such additional
rules and regulations, not inconsistent with this
Instrument, as they may deem expedient concerning the
purchase or increase of Interests.
6.4. Register of Interests. A register shall be
kept at the principal office of the Trust under the
direction of the Trustees which shall contain the
names and addresses of the Holders of each Series
and the Book Capital Account balances of each Holder
of each Series. Each such register shall be conclusive
as to who are the Holders of each Series of the Trust
and who shall be entitled to payments of distributions
or otherwise to exercise or enjoy the rights of Holders.
No Holder shall be entitled to receive payment of any
distribution, or to have notice given to it as herein
provided, until it has given its address to such officer
or agent of the Trustees as shall keep the said register
for entry thereon.
6.5. Non-Transferability. Interests of a Series
shall not be transferable, unless the prospective
transferor obtains the prior unanimous consent of the
Holders of that Series to the transfer. Except as
otherwise provided by law, the Trust shall be entitled
to recognize the exclusive right of a person in whose
name any Interest stands on the record of Holders as
the holder of such Interest for all purposes, including,
without limitation, the rights to receive distributions,
and to vote as such holder, and the Trust shall not be
bound to recognize any equitable or legal claim to or
interest in any such Interest on the part of any other
person.
6.6. Notices. Any and all notices to which any
Holder hereunder may be entitled and any and all
communications shall be deemed duly served or given
if mailed, postage prepaid, addressed to any Holder
of record at its last known address as recorded on
the register of the Trust.
6.7. Assent to Trust Instrument. Every Holder,
by virtue of having become a Holder, shall be held
to have expressly assented and agreed to the terms
hereof and to have become a party hereto.
6.8. Establishment of Series. The Trust created
hereby shall consist of one or more Series and
separate and distinct records shall be maintained
by the Trust for each Series and the assets associated
with any such Series shall be held and accounted for
separately from the assets of the Trust or any other
Series. The Trustees shall have full power and
authority, in their sole discretion, and without
obtaining any prior authorization or vote of the
Holders of any Series of the Trust, to establish
and designate and to change in any manner any such
Series of Interests and to fix such preferences,
voting powers, right and privileges of such Series
as the Trustees may from time to time determine,
to classify or reclassify any unissued Interests or
any Series into one or more Series, and to take such
other action with respect to the Interests as the
Trustees may deem desirable. The establishment and
designation of any Series shall be effective upon the
adoption of a resolution by a majority of the Trustees
setting forth such establishment and designation and
the relative rights and preferences of the Interests
of such Series. At any time that there are no Interests
outstanding of any particular Series previously
established and designated, the Trustees may by
a majority vote abolish that Series and the
establishment and designation thereof.
All references to Interests in this Trust Instrument
shall be deemed to be Interests of any or all Series,
as the context may require. All provisions herein
relating to the Trust shall apply equally to each
Series of the Trust, except as the context otherwise
requires.
6.9. Assets and Liabilities of Series. All
consideration received by the Trust for the issuance
or sale of Interests of a particular Series, together
with all assets in which such consideration is invested
or reinvested, all income, earnings, profits and
proceeds thereof, including any proceeds derived from
the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of
such proceeds in whatever form the same may be, shall be
held and accounted for separately from the other assets
of the Trust and of every other Series and may be
referred to herein as assets belonging to that Series.
The assets belonging to a particular Series shall belong
to that Series for all purposes, and to no other Series,
subject only to the rights of creditors of that Series.
In addition, any assets, income, earnings, profits or
funds, or payments and proceeds with respect thereto,
which are not readily identifiable as belonging to any
particular Series shall be allocated by the Trustees
between and among one or more of the Series in such
manner as the Trustees, in their sole discretion,
deem fair and equitable. Each such allocation shall
be conclusive and binding upon the Holders of all Series
for all purposes, and such assets, income, earnings,
profits or funds, or payments and proceeds with respect
thereto shall be assets belonging to that Series. The
assets belonging to a particular Series shall be so
recorded upon the books of the Trust, and shall be
held by the Trustees in trust for the benefit of the
Holders of Interests of that Series. The assets
belonging to each particular Series shall be charged
with the liabilities of that Series and all expenses,
costs, charges and reserves attributable to that
Series. 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 between
or among any one or more of the Series in such manner
as the Trustees in their sole discretion deem fair and
equitable. Each such allocation shall be conclusive
and binding upon the Holders of all Series for all
purposes. Without limitation of the foregoing
provisions of this Section 6.9, but subject to the
right of the Trustees in their discretion to allocate
general liabilities, expenses, costs, changes or reserves
as herein provided, the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise
existing with respect to a particular Series shall be
enforceable against assets of such Series only, and not
against the assets of the Trust generally. Notice of
this contractual limitation on inter-Series liabilities
may, in the Trustee's sole discretion, be set forth in
the certificate of trust of the Trust (whether
originally or by amendment) as filed or to be filed in
the Office of the Secretary of State of the State of
Delaware pursuant to the Delaware Act, and upon the
giving of such notice in the certificate of trust,
the statutory provisions of Section 3804 of the
Delaware Act relating to limitations on inter-Series
liabilities (and the statutory effect under Section
3804 of the Delaware Act setting forth such notice
in the certificate of trust) shall become applicable
to the Trust and each Series. Any person extending
credit to, contracting with or having any claim against
any Series may look only to the assets of that Series
to satisfy or enforce any debt with respect to that
Series. No Holder or former Holder of any Series shall
have a claim on or any right to any assets allocated or
belonging to any other Series.
ARTICLE VII
Decreases and Withdrawals
7.1. Decreases and Withdrawals. A Holder shall
have the authority to decrease or withdraw its Interest
in any Series of the Trust, at such Holder's option,
subject to the terms and conditions provided in this
Article VII. The Trust shall, upon application of
any Holder or pursuant to authorization from any
Holder, and subject to this Article VII, decrease or
withdraw such Holder's Interest for an amount (which
shall be treated as a distribution for purposes of
Section 8.1) determined by the application of a formula
adopted for such purpose by resolution of the Trustees;
provided that (a) such amount shall not exceed the
positive balance in such Holder's Book Capital Account
(determined after taking into account such adjustments
as are required by Treasury Department
Regulation 1.704-1(b) (2) (ii) (b) (2) but before
reduction thereof to reflect the distribution of
such amount) and (b) if so authorized by the Trustees,
the Trust may, at any time and from time to time,
charge fees for effecting such decrease or withdrawal,
at such rates as the Trustees may establish, and may,
at any time and from time to time, suspend such right
of decrease or withdrawal. The procedures for effecting
decreases or withdrawals shall be as determined by the
Trustees from time to time.
ARTICLE VIII
Determination of Book Capital Account
Balances, Net Asset Value, Allocations and Distributions
8.1. Book Capital Account Balances. A Book Capital
Account shall be maintained for each Holder of each
Series. With respect to each Series, each Book
Capital Account shall be credited with the amounts of
consideration paid by the Holder to purchase or increase
its Interest in the Series and with its share of the
Series' Net Profits (defined below), shall be charged
with such Holder's share of the Series' Net Losses
(defined below), distributions and withholding taxes
(if any) and shall otherwise appropriately reflect
transactions of the Series and the Holders. No interest
shall be paid on any amount of consideration paid to the
Trust to purchase or increase Interests.
Net Profits of a Series for any given time period shall
mean the excess of the Net Asset Value of the Series
(defined in Section 8.2) at the close of business on the
last day of the period, prior to any distribution being
made with respect to such period, over the Net Asset
Value of the Series as of the opening of business on
the first day of such period, after any additional
contributions made on such date.
Net Losses of a Series for any given time period
shall mean the excess of the Net Asset Value of the
Series as of the opening of business on the first
day of the period, after any additional contributions
made on such date, over the Net Asset Value of the
Series at the close of business on the last day of
such period, prior to any distribution being made
with respect to such period.
The Book Capital Account balances of Holders of
each Series shall be determined periodically at
such time or times as the Trustees may determine.
The power and duty to make calculations necessary
to determine these balances may be delegated by the
Trustees to the Investment Manager, custodian, or such
other person as the Trustees may determine.
Notwithstanding anything herein to the contrary,
the Book Capital Accounts and any related accounts
(including without limitation tax capital accounts,
gross appreciation [unrealized gain] accounts, and
gross depreciation [unrealized loss] accounts) of the
Holders and of any series shall at all times during
the full term of such Series be determined and
maintained in accordance with the rules of Treasury
Department Regulation 1.704-1 (b) (2) (iv).
The Trustees are authorized to prescribe, in their
absolute discretion, such policies for the
establishment and maintenance of such accounts
(Policies) as they, in consultation with the Trust's
professional advisers, consider to be in accordance
with the requirements of such rules.
8.2. Net Asset Value. The term Net Asset Value
shall mean, with respect to any Series, that amount
by which the assets of the Series exceed its liabilities,
all as determined by or under the direction of the
Trustees. In making this determination, the Trustees,
without Holder approval, may alter the method of valuing
portfolio securities insofar as permitted under the 1940
Act and the rules, regulations and interpretations
thereof promulgated or issued by the Commission or
insofar as permitted by any order of the Commission
applicable to the Series. The Trustees may delegate
any of their powers and duties under this Section 8.2
with respect to valuation of assets and liabilities.
8.3. Allocation of Net Profits and Net Losses.
(a) Net Profits and Net Losses of each Series
shall be determined and allocated daily as of the
close of business to and among the Holders of that
Series in proportion to their respective Interests in
the Series, determined as of the opening of business
on such day.
(b) Except as otherwise provided in this
Section 8.3, for each fiscal year, items of income,
deduction, gain, loss or credit that are recognized
by a Series for tax purposes shall be allocated
pursuant to Treasury Department
Regulations 1.704-1(b) in such manner as to
equitably reflect amounts credited or debited to
the Book Capital Account of each Holder of that
Series for such year. Allocations of such items also
shall be made, where appropriate, in accordance with
section 704(c) of the Code and the regulations
thereunder, as may be provided in any Policies
adopted by the Trustees pursuant to Section 8.1.
(c) Expenses of a Series, if any, which are
borne by any Holder of that Series in its individual
capacity shall be specially allocated to that Holder.
(d) Notwithstanding anything in Section 8.3(b)
or (c) to the contrary, in the event any Holder of a
Series unexpectedly receives any adjustments,
allocations or distributions described in Treasury
Department Regulations 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6),
items of income (including gross income) and gain of
that Series shall be specially allocated to such
Holder in an amount and manner sufficient to
eliminate the deficit balance in the Holder's Book
Capital Account (as determined in accordance with
Treasury Department Regulation 1.704-1 (b)(2)(ii)(d))
created by such adjustments, allocations or
distributions as quickly as possible. Any special
allocations of income and gain of a Series pursuant
to this Section 8.3(d) shall be taken into account
0
in computing subsequent allocations of income and
gain of that Series pursuant to this Article VIII,
so that the net amount of any items of that Series
so allocated and the income, gain, loss, deduction
and all other items of that Series allocated to each
Holder pursuant to this Article VIII shall, to the
extent possible, equal the net amount that would have
been allocated to each such Holder pursuant to the
provisions of this Article VIII if such special
allocations had not been made.
8.4. Distributions. The Trustees may from
time to time agree to the payment of distributions
to Holders of a Series. The amount of such
distributions and the payment of them and whether
they are in cash or in any other assets of the Series
shall be wholly in the discretion of the Trustees.
8.5. Power to Modify Foregoing Procedures.
Notwithstanding any of the foregoing provisions of
this Article VIII, the Trustees may prescribe, in
their absolute discretion, such other bases and times
for determining, for financial reporting and/or tax
accounting purposes, (a) the Net Profits, Net Losses,
taxable income, tax loss, and/or net assets of any
Series (or, where appropriate in the Trustees' judgment,
of the Trust as a whole), and/or (b) the allocation of
the Net profits or Net Losses and taxable income or
tax loss so determined among, or the payment of
distributions to, the Holders of any Series as they
deem necessary or desirable to enable the Trust or any
Series to comply with any provision of the 1940 Act,
the Code, any rule or regulation thereunder, or any
order of exemption issued by the Commission, all as
in effect now or as hereafter amended or modified.
ARTICLE IX
Holders
9.1. Meetings of Holders. Meetings of the Holders
of any Series may be called at any time by a majority
of the Trustees and shall be called by any Trustee upon
written request of Holders holding, in the aggregate,
not less than 10% of the Interests of that Series, such
request specifying the purpose or purposes for which
such meeting is to be called. Any such meeting shall be
held within or without the State of Delaware on such day
and at such time as the Trustees shall designate. Holders
of one-third of the Interests entitled to vote, present in
person or by proxy, shall constitute a quorum for the
transaction of any business, except as may otherwise be
required by law or by this Instrument. The Chairman, if
any, shall act as chairman at all meetings of the Holders;
in the Chairman's absence, the President shall act as
chairman; and in the absence of the Chairman and the
President, the Trustee or Trustees present at each meeting
may elect a temporary chairman for the meeting, who may be
one of themselves. Holders may vote either in person or
by duly executed proxy and each Holder shall be entitled
to vote proportionate to the Holder's Interest in the
Trust or affected Series. If a quorum is present at a
meeting, an affirmative vote of a Majority Interest Vote
of the Holders present and entitled to vote thereon,
either in person or by proxy, at such meeting constitutes
the action of the Holders, unless law or this Instrument
requires a greater number of affirmative votes.
9.2. Notice of Meetings. Notice of all meetings of the
Holders of any Series, stating the time, place and purposes
of the meeting, shall be given by the Trustees by mail to
each Holder of that Series, at the Holder's registered
address, mailed at least 10 days and not more than 90
days before the meeting. At any such meeting, any
business properly before the meeting may be considered
whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without
further notice. No notice need be given to any Holder
who shall have failed to inform the Trust of the Holder's
current address or if a written waiver of notice,
executed before or after the meeting by the Holder or
the Holder's attorney thereunto authorized, is filed
with the records of the meeting.
9.3. Record Date for Meetings. For the purpose
of determining the Holders who are entitled to notice
of and to vote at any meeting, including any adjournment
thereof, or to participate in any distribution, or for
the purpose of any other action, the Trustees may from
time to time fix a date, not more than 90 days prior to
the date of any meeting of the Holders or payment of
distributions or other action, as the case may be, as
a record date for the determination of the Persons to
be treated as Holders of record for such purposes.
If the Trustees do not, prior to any meeting of Holders,
so fix a record date, then the date of mailing notice of
the meeting shall be the record date.
9.4. Proxies, etc. At any meeting of Holders,
any Holder 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.
A proxy may be given in writing, by any electronic or
telecommunications device or in any other manner.
Pursuant to a resolution of a majority of the Trustees,
proxies may be solicited in the name of one or more
Trustees or one or more of the officers of the Trust.
Only Holders of record shall be entitled to vote.
Each Holder shall be entitled to a vote proportionate
to its Interest in the Trust or applicable Series, as
the case may be. When Interests are held jointly by
several persons, any one of them may vote at any meeting
in person or by proxy in respect of such Interest, 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 Interest. A proxy purporting to be executed by or
on behalf of a Holder 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 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 its Interest, the Holder may vote by the Holder's
guardian or such other person appointed or having such
control, and such vote may be given in person or by proxy.
No proxy shall be valid after eleven (11) months from the
date of its execution, unless a longer period is
expressly stated in such proxy.
9.5. Inspectors of Election. In advance of any
meeting of Holders, the Trustees may appoint Inspectors
of Election to act at the meeting or any adjournment
thereof. If Inspectors of Election are not so appointed,
the Chairman, if any, of any meeting of Holders may,
and on the request of any Holder or the Holder's
proxy shall, appoint Inspectors of Election of the
meeting. The number of Inspectors shall be either one
or three. If appointed at the meeting on the request of
one or more Holders or proxies, a majority of the
Interests present shall determine whether one or
three Inspectors are to be appointed, but failure
to allow such determination by the Holders shall not
affect the validity of the appointment of Inspectors
of Election. In case any person appointed as Inspector
fails to appear or fails or refuses to act, the vacancy
may be filled by appointment made by the Trustees in
advance of the convening of the meeting or at the meeting
by the person acting as Chairman. The Inspectors of
Election shall determine the percentage of the total
Interests represented at the meeting, the existence of
a quorum, the authenticity, validity and effect of
proxies, shall receive votes, ballots or consents,
shall hear and determine all challenges and questions
in any way arising in connection with the right to
vote, shall count and tabulate all votes or consents,
determine the results, and do such other acts as may
be proper to conduct the election or vote with fairness
to all Holders. If there are three Inspectors of
Election, the decision, act or certificate of a
majority is effective in all respects as the decision,
act or certificate of all. On request of the Chairman,
if any, of the meeting, or of any Holder or a Holder's
proxy, the Inspectors of Election shall make a report
in writing of any challenge or question or matter
determined by them and shall execute a certificate of
any facts found by them.
9.6. Inspection of Records. The records of the
Trust shall be open to inspection by Holders during
normal business hours for any purpose not harmful to
the Trust. At each meeting of the Holders of the Trust
or any Series there shall be open for inspection the
minutes of the last previous meeting of Holders of the
Trust or Series, as the case may be, and a list of the
Holders of the Trust or Series, certified to be true
and correct by the Secretary or other proper agent of
the Trust, as of the record date of the meeting.
Such list of Holders shall contain the name of each
Holder and the address and the percentage of the total
Interests owned by such Holder.
9.7. Holder Action by Written Consent. Any action
which may be taken by Holders may be taken without a
meeting if Holders shall unanimously consent to the
action in writing and the written consents are filed
with the records of the meetings of Holders. Such consent
shall be treated for all purposes as a vote taken at a
meeting of Holders.
9.8. Voting Powers. The Holders shall have power
to vote only (i) for the election of Trustees as
provided in Sections 2.2 and 2.4; (ii) for the removal
of Trustees as provided in Section 2.3; (iii) with
respect to any investment management contract entered
into pursuant to Section 4.1; (iv) with respect to
termination of the Trust as provided in Section 10.1;
and (v) with respect to any such additional matters
relating to the Trust as may be required by this
Instrument or any registration of the Trust as an
investment company under the 1940 Act with the
Commission (or any successor agency) or as the Trustees
may consider necessary or desirable. On any matter
submitted to a vote of the Holders, all Interests shall
be voted separately by individual Series, except
(i) when required by the 1940 Act, Interests shall be
voted in the aggregate and not by individual Series;
and (ii) when the Trustees have determined that the
matter affects the interests of more than one Series,
then the Holders of all such Series shall be entitled
to vote thereon. There shall be no cumulative voting
in the election of Trustees. Until Interests are issued
and at any time wherein no Interests are outstanding,
the Trustees may exercise all rights of Holders and may
take any action required by law or this Instrument to
be taken by Holders.
ARTICLE X
Duration; Termination; Dissolution;
Amendment; Mergers; Etc.
10.1. Termination of Trust or any Series.
(a) The Trust or any Series may be terminated
by (i) a Majority Interests Vote of each Series affected
by the matter or, if applicable, a Majority Interests
vote of the Trust, or (ii) the Trustees by written
notice to the Holders. Upon any such termination,
(i) The Trust or any affected Series
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 any affected Series and
all of the powers of the Trustees under this Instrument
with respect to the Trust or any affected Series shall
continue until the affairs of the Trust or any such
Series shall have been wound up, including the power
to fulfill or discharge the contracts of the Trust or
any such Series, collect its assets, sell, convey,
assign, exchange, or otherwise dispose of all or any
part of the remaining assets of the Trust or any such
Series to one or more persons at public or private sale
for consideration which may consist in whole or in part
of cash, securities or other property of any kind,
discharge or pay its liabilities, and do all other acts
appropriate to liquidate its business.
(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 shall distribute the remaining assets of the
Trust or any affected Series, in cash or in kind or
partly each, among the Holders of the Trust or the
affected Series in proportion to their respective
Interests in the Trust or Series (that is, in accordance
with the positive Book Capital Account balances of the
Holders), after taking into account such adjustments as
are required by Treasury Department Regulation 1.704-1(b)
(2) (ii) (b) (2).
(b) Upon termination of the Trust or any Series
and distribution to the Holders 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. Upon
termination of the Trust or any Series, the Trustees
shall thereupon be discharged from all further
liabilities and duties hereunder with respect to the
Trust or Series, and the rights and interests of all
Holders of the Trust or Series shall thereupon cease.
10.2. Dissolution. Any Series shall be dissolved
120 days after a Holder of an Interest in such Series
either (a) makes an assignment for the benefit of
creditors, (b) files a voluntary petition in bankruptcy,
(c) is adjudicated a bankrupt or insolvent,
(d) files any pleading admitting or failing to contest
the material allegations of a petition filed against it
in any bankruptcy or insolvency proceeding, or (e)
seeks, consents to, or acquiesces in the appointment
of a trustee, receiver, or liquidator of such Holder
or of all or any substantial part of its assets,
unless, within such 120 days, Holders (excluding the
Holder with respect to whom such event occurs) owning
a majority of the Interests in such Series vote to
continue the Series. Upon any dissolution pursuant
to this section, the provisions of Section 10.1(a) (i),
(ii), and (iii) shall apply as if such dissolution were
a termination described in Section 10.1.
10.3. Amendment Procedure.
(a) Except as specifically provided herein, the
Trustees may, without the vote or consent of Holders,
amend or otherwise supplement this Instrument by making
an amendment, a trust instrument supplemental hereto or
an amended and restated trust instrument. Holders shall
have the right to vote (i) on any amendment which would
affect their right to vote granted in Section 9.8,
(ii) on any amendment to this Section 10.3, (iii) on
any amendment as may be required by law or by the Trust's
registration statement filed with the Commission, and
(iv) on any amendment submitted to them by the Trustees.
Any amendment required or permitted to be submitted to
Holders which, as the Trustees determine, shall affect
the Holders of one or more Series shall be authorized
by vote of the Holders of each Series affected, and no
vote of Holders of a Series not affected shall be required.
(b) Notwithstanding anything else herein, any
Amendment to Article 5 hereof shall not limit the rights
to indemnification or insurance provided therein with
respect to action or omission of Covered Persons prior
to such amendment. Nothing contained in this Instrument
shall permit the amendment of this Instrument to impair
the exemption from personal liability of the Holders or
Trustees of the Trust.
(c) Notwithstanding anything else herein, no
amendment to Section 5.6 shall be effective until at
least 30 days after the Trust has delivered all Holders
(as of the date of such notice) written notice of
such amendment.
(c) A certification signed by a majority of the
Trustees setting forth an amendment and reciting
that it was duly adopted by the Holders or by the
Trustees as aforesaid or a copy of the Instrument,
as amended, executed by a majority of the Trustees,
shall be conclusive evidence of such amendment when
lodged among the records of the Trust.
Notwithstanding any other provision hereof,
until such time as Interests are first sold,
this Instrument may be terminated or amended in any
respect by the affirmative vote of a majority of the
Trustees or by an instrument signed by a majority of
the Trustees.
10.4. Merger, Consolidation or Asset Sale.
Notwithstanding anything else herein, the Trustees may,
without the prior consent or vote of the Holders, cause
the Trust or any Series to merge or consolidate with,
or sell substantially all of its assets to, any other
partnership, trust or other organization. Pursuant to
and in accordance with the provisions of Section 3815(f)
of the Delaware Act, and notwithstanding anything to the
contrary contained in this Instrument, any agreement of
merger or consolidation may effect any amendment to the
Instrument or effect the adoption of a new trust
instrument of the Trust if the Trust or Series is
the surviving or resulting entity in the merger or
consolidation.
10.5. Incorporation. Notwithstanding anything
else herein, the Trustees may, without the prior
consent or vote of the Holders, cause to be organized
or assist in organizing a corporation or corporations
under the laws of any jurisdiction or any other trust,
partnership, association or other organization to take
over all of the Trust Property or the assets of any
Series or to carry on any business in which the Trust
or any Series shall directly or indirectly have any
interest, and to sell, convey and transfer the Trust
Property or the assets of any Series to any such
corporation, trust, association or organization in
exchange for the equity interests thereof or otherwise,
and to lend money to, subscribe for the equity interests
of, and enter into any contracts with any such
corporation, trust, partnership, association or
organization, or any corporation, partnership, trust,
association or organization in which the Trust or
any Series holds or is about to acquire equity interests.
The Trustees may also cause a merger or consolidation
between the Trust or any Series or any successor thereto
and any such corporation, trust, partnership, association
or other organization if and to the extent permitted by
law, as provided under the law then in effect. In
addition, nothing contained herein shall be construed
as requiring approval of the Holders 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 or the assets of any Series
to such organizations or entities.
ARTICLE XI
Miscellaneous
11.1. Governing Law. The trust set forth in this
instrument is made in the State of Delaware, and the
Trust and this Instrument, and the rights and
obligations of the Trustees and Holders hereunder,
are to be governed by and construed and administered
according to the Delaware Act and the laws of said
State; provided, however, that there shall not be
applicable to the Trust, the Trustees or this Instrument
(a) the provisions of Section 3540 of Title 12 of the
Delaware Code or (b) any provisions of the laws
(statutory or common) of the State of Delaware
(other than the Delaware Act) pertaining to trusts
which relate to or regulate (i) the filing with any
court or governmental body or agency of trustee
accounts or schedules of trustee fees and charges,
(ii) affirmative requirements to post bonds for trustees,
officers, agents or employees of a trust,
(iii) the necessity for obtaining court or other
governmental approval concerning the acquisition,
holding or disposition of real or personal property,
(iv) fees or other sums payable to trustees, officers,
agents or employees of a trust, (v) the allocation of
receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible
nature, amount or concentration of trust investments
or requirements relating to the titling, storage or
other manner of holding of trust assets, or
(vii) the establishment of fiduciary or other standards
or responsibilities or limitations on the acts or powers
of trustees, which are inconsistent with the limitations
or liabilities or authorities and powers of the Trustees
set forth or referenced in this Instrument. The Trust
shall be of the type commonly called a "business trust,"
and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such
a trust under Delaware law. The trust specifically
reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be
engaged in by trusts under the Delaware Act, and the
absence of a specific reference herein to any such power,
privilege or action shall not imply that the Trust may
not exercise such power or privilege or take such actions.
11.2. Counterparts. This Instrument 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.
11.3. Reliance by Third Parties. Any certificate
executed by an individual who, according to the records
of the Trust or of any recording office in which this
Instrument may be recorded, appears to be a Trustee
hereunder, certifying to: (a) the number or identity
of Trustees or Holders; (b) the due authorization of
the execution of any instrument or writing; (c) the form
of any vote passed at a meeting of Trustees or Holders;
(d) the fact that the number of Trustees or Holders
present at any meeting or executing any written
instrument satisfies the requirements of this Instrument;
(e) the form of any By-Laws adopted by or the identity
of any officers elected by the Trustees, or; (f) the
existence of any fact or facts which in any manner
relate to the affairs of the Trust, shall be
conclusive evidence as to the matters so certified
in favor of any person dealing with the Trustees
and their successors.
11.4. Provisions in Conflict With Law or Regulations.
(a) The provisions of this Instrument are severable,
and if the Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with
any applicable laws or regulations, the conflicting
provision shall be deemed never to have constituted
a part of this Instrument; provided, however, that
such determination shall not affect any of the remaining
provisions of this Instrument or render invalid or
improper any action taken or omitted prior to such
determination.
(b) If any provision of this Instrument shall be
held invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall attach only
to such provision in such jurisdiction and shall not
in any manner affect such provision in any other
jurisdiction or any other provision of this Instrument
in any jurisdiction.
(c) It is intended that each Series of the Trust
be classified as a partnership for federal income
tax purposes. The Trustees, in their sole discretion
and without the vote or consent of the Holders, may
amend this Instrument and do whatever else they determine
to be necessary to ensure that this objective is achieved.
11.5. Signatures. All contracts and other instruments
shall be executed on behalf of the Trust by such officer,
officers, agent or agents, as provided in this Instrument
or as the Trustees may from time to time by resolution
provide.
11.6. Seal. The seal of the Trust, if any, may be
affixed to any document, and the seal and its attestation
may be lithographed, engraved or otherwise printed on any
document with the same force and effect as if it had been
imprinted and attested manually in the same manner and
with the same effect as if done by a Delaware business
corporation.
11.7. Fiscal Year. The fiscal year of the Trust and
each Series shall begin on June 1, provided, however,
that the Trustees may from time to time change the fiscal
year of the Trust or of any Series.
11.8. Waivers of Notice. Whenever any notice
whatever is required to be given by law or this
Instrument, a waiver thereof in writing, signed by the
person or persons entitled to said 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 this Instrument when it has been delivered to a
representative of any telegraph, cable or wireless
company with instructions that it be telegraphed,
cabled or wirelessed.
11.9. Reports. The Trustees shall cause to be
prepared, at least annually, a report of operations
containing those financial statements as may be
required by laws or as the Trustees may direct for
each Series prepared in conformity with generally
accepted accounting principles and an opinion of an
independent public accountant on such financial
statements. The Trustees shall, in addition, furnish
to the Holders of each Series at least semi-annually
interim reports containing unaudited financial statements
as may be required by laws or as the Trustees may direct.
IN WITNESS WHEREOF, the undersigned, being all of the
Trustees of the Trust, have executed this instrument as
of date first written above.
_______________________
Costas Azariadis, as Trustee
and not individually
_______________________
James C. Cheng, as Trustee
and not individually
_______________________
John Y. Keffer, as Trustee
and not individually
________________________
J. Michael Parish, as Trustee
and not individually
APPENDIX A
Portfolios of the Trust
as of November 1, 1999
Prime Money Market Portfolio
Money Market Portfolio
Small Cap Index Portfolio
Small Company Growth Portfolio
Small Company Value Portfolio
Large Company Growth Portfolio
Disciplined Growth Portfolio
Small Cap Value Portfolio
Strategic Value Bond Portfolio
Income Equity Portfolio
Managed Fixed Income Portfolio
Positive Return Bond Portfolio
Stable Income Portfolio
International Portfolio
Index Portfolio
International Equity Portfolio
Treasury Cash Portfolio
Government Cash Portfolio
Cash Portfolio
Government Portfolio
Municipal Cash Portfolio
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