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EXHIBIT 9.4
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this 2nd day of August, 1993 by and among Seattle-First National Bank, as
trustee (the "Trustee") of the Collective Investment Trust for Seafirst
Retirement Accounts ("CIT"), a Washington trust consisting of multiple
investment portfolios including (the Bond Fund, the Money Market Fund, the Asset
Allocation Fund and the Blue Chip Fund (collectively, the "CIT Funds"), Master
Investment Trust, Series I (the "Master Trust"), a Delaware business trust
consisting of multiple investment portfolios including the Investment Grade Bond
Fund, the Asset Allocation Fund and the Blue Chip Fund (collectively, the
"Master Funds"), and Seafirst Retirement Funds ("SRF"), a Delaware business
trust consisting of multiple investment portfolios including the Bond Fund, the
Asset Allocation Fund and the Blue Chip Fund (collectively, the "Seafirst
Funds").
WHEREAS, each of CIT, the Master Trust and SRF is an open-end
management investment company registered or to be registered with the Securities
and Exchange Commission (the "SEC") under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the parties desire that all the assets of each of the CIT
Funds other than the CIT Money Market Fund (collectively, the "CIT Securities
Funds") be transferred to, and acquired by, the Master Funds as stated herein in
exchange for which the CIT Securities Funds shall be entitled to have issued to
them by the Master Trust beneficial interests ("interests") in the Master Funds
as described in this Agreement; and
WHEREAS, the parties desire that immediately thereafter such interests
in the Master Funds to which the CIT Securities Funds are entitled shall be
issued by the Master Trust to, and the liabilities of the CIT Securities Funds
shall be transferred to, and acquired and assumed by, the Seafirst Funds as
stated herein in exchange for shares of beneficial interest ("shares") of the
Seafirst Funds, which shall thereafter be distributed by CIT to its unitholders
as described in this Agreement; and
WHEREAS, the parties intend that the Seafirst Funds will have nominal
assets and liabilities before the transactions described above (the
"Reorganization") and will continue the historic business and investment
operations of the CIT Securities Funds thereafter, and that in this regard
certain additional actions shall be taken as described in this Agreement; and
WHEREAS, the parties intend that in connection with the Reorganization
the CIT Money Market Fund shall be terminated as described in this Agreement;
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WHEREAS, the parties intend that in connection with the Reorganization
CIT shall be terminated and deregistered as described in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and subject to the terms and conditions thereof, the
parties hereto, intending to be legally bound, agree as follows:
1. SALES AND TRANSFERS OF ASSETS.
(a) At the Effective Time (as defined in Section 10 of this
Agreement), all property of every description, and all interests, rights,
privileges and powers or each of the CIT Securities Funds (the "Assets") shall
be transferred and conveyed by each CIT Securities Fund to the corresponding
Master Fund and shall be accepted by the corresponding Master Fund, such that at
and after the Effective Time, all assets of each CIT Securities Fund shall
become and be the assets of the corresponding Master Fund.
(b) In exchange for the transfer of the Assets from the
following CIT Securities Funds, each such CIT Securities Fund shall be entitled
to have simultaneously issued to it by the Master Trust at the Effective Time
full and fractional interests (to the third decimal place) of the following
Master Funds (the "Master Fund Interests"), which Master Fund Interests shall
represent all of the outstanding interests of such Master Funds and which shall
be equal in value to the value of the full and fractional units of beneficial
Interest of such CIT Securities Funds that are outstanding immediately prior to
the Effective Time (the "Units"): (I) CIT's Bond Fund series shall be entitled
to receive Interests in the Master Trust's Bond Fund; (ii) CIT's Asset
Allocation Fund series shall be entitled to receive Interests in the Master
Trust's Asset Allocation Fund; and (iii) CIT's Blue Chip Fund series shall be
entitled to receive Interests in the Master Trust's Blue Chip Fund.
(c) Immediately after the transactions referred to in
paragraphs (a) and (b) hereof, the Master Fund Interests to which the CIT
Securities Funds are entitled shall be issued by the Master Trust to the
following Seafirst Funds and shall be accepted by such Seafirst Funds: (i) to
SRF's Bond Fund series, Interests in the Master Trust's Bond Fund to which the
CIT Bond Fund is entitled; (ii) to SRF's Asset Allocation Fund series, Interests
in the Master Trust's Asset Allocation Fund to which the CIT Asset Allocation
Fund is entitled; and (iii) to SRF's Blue Chip Fund series, Interests in the
Master Trust's Blue Chip Fund to which the CIT Blue Chip Fund is entitled.
(d) In exchange for the issuance of the Master Fund Interests
to which the following CIT Securities Funds are
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entitled, SRF shall simultaneously issue to such CIT Securities Funds full and
fractional shares (to the third decimal place) of beneficial interest of the
following Seafirst Funds (the "Seafirst Shares"), which Seafirst Shares be
accepted by such CIT Securities Funds and shall represent all of the outstanding
shares of such Seafirst Funds, and shall be equal in value to the value of the
full and fractional Master Fund Interests to which such CIT Securities Funds are
entitled: (i) to CIT's Bond Fund series, shares of the Seafirst Bond Fund; (ii)
to CIT's Asset Allocation Fund series, shares of the Seafirst Asset Allocation
Fund; and (iii) to CIT's Blue Chip Fund series, shares or the Seafirst Blue Chip
Fund.
Such Master Fund Interests shall be issued subject to assumption
by the following Seafirst Funds of all liabilities and obligations of each
corresponding CIT Securities Fund (the "Liabilities"), whether accrued,
absolute, contingent or otherwise, which liabilities shall include, without
limitation, all obligations of each of the CIT Securities Funds to indemnify
CIT's Board of Supervisors and officers acting in their capacity or capacities
as such to the fullest extent permitted by law and CIT's Declaration of Trust as
in effect on the date hereof, such that at and after such issuance and
assumption all debts, liabilities, obligations and duties of each of the CIT
Securities Funds shall become the debts, liabilities, obligations and duties of
the corresponding Seafirst Fund and may thenceforth be enforced against such
Seafirst Fund as if the same had been incurred by it, and at and after such time
the liabilities of each CIT Securities Fund shall be enforceable against and be
limited to the corresponding Seafirst Fund and no other person: (i) the
liabilities of the CIT Bond Fund series shall be transferred to and assumed by
the Seafirst Bond Fund; (ii) the liabilities of the CIT Asset Allocation Fund
series shall be transferred to and assumed by the Seafirst Asset Allocation
Fund; and (iii) the liabilities of the CIT Blue Chip Fund series shall be
transferred to and assumed by the Seafirst Blue Chip Fund.
(e) At the Effective Time, the Trustee shall liquidate the
assets of the CIT Money Market Fund and distribute the proceeds, net of all
liabilities attributable to the CIT Money Market Fund, in accordance with the
provisions of Section 2 of this Agreement.
2. LIQUIDATING DISTRIBUTIONS OF CIT.
(a) At the Effective Time, the Trustee shall liquidate and
distribute pro rata to the holders of the Units of record of each CIT Securities
Fund and or the CIT Money Market Fund (the "Record Holders") as of the close of
business on the date of the Effective Time the shares of the corresponding
Seafirst Fund which such CIT Securities Fund will receive from SRF pursuant to
Section 1 of this Agreement or the assets of the CIT Money Market
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Fund, net of its liabilities, as the case may be. Each Record Holder of a CIT
Securities Fund shall be credited with a number of full and fractional shares of
the corresponding Seafirst Fund that are issued by SRF to such CIT Securities
Fund in connection with the Reorganization, which number shall be equal in value
to the value of the proportionate share of the total number of the Units of such
CIT Securities Fund held by such Record Holder immediately prior to the
Effective Time. In addition, each Record Holder shall have the right to receive
any unpaid dividends or other distributions declared prior to the Effective Time
with respect to the Units held by the Record Holder at the Effective Time.
(b) In accordance with instructions it receives from CIT, SRF
shall record on its books the ownership of Seafirst Shares by the Record Holders
of the CIT Securities Funds.
(c) All the issued and outstanding Units representing
interests in CIT shall be cancelled on the books of CIT and CIT's transfer books
shall be closed permanently immediately after the Effective Time. Exchange or
redemption requests received after that time with respect to the CIT Securities
Funds shall be treated as requests for the exchange or redemption or shares of
the respective Seafirst Funds to be distributed to its shareholders. No Units
shall be issued by CIT after the Effective Time.
3. TERMINATION OF CIT.
(a) As soon as practicable after the Effective Time, CIT shall
be terminated pursuant to applicable Washington law and federal regulations,
such that: (i) its affairs are immediately wound up, its contracts discharged
and its business liquidated; and (ii) an instrument in writing setting forth the
fact of such termination is executed and lodged among the records of CIT by an
appropriate officer of CIT.
(b) As promptly as practicable after the Effective Time, the
Trustee shall file an application pursuant to Section 8(f) of the 1940 Act for
an order declaring that CIT has ceased to be an investment company.
4. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS REGARDING CIT.
The Trustee, on behalf of CIT and the CIT Funds, represents and warrants to, and
agrees with, the other parties as follows (said representations, warranties and
agreements being made solely on behalf of each CIT Fund):
(a) CIT is a trust duly created and validly existing under the
laws of the State of Washington.
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(b) This Agreement has been duly authorized, executed and
delivered by the Trustee on behalf of CIT and, subject to the approvals of the
holders of Units of each CIT Fund (the "Participants") pursuant to Section 7 of
this Agreement, represents a valid and binding contract, enforceable against the
assets of CIT in accordance with its terms. The execution and delivery of this
Agreement does not, and, subject to the approvals of Participants pursuant to
Section 7 of this Agreement, the consummation of the transactions contemplated
by this Agreement will not, violate CIT's Amended and Restated Declaration of
Trust, any agreement or arrangement to which it is a party or by which it is
bound, or any order or decree to which it is subject.
(c) CIT is duly registered under the 1940 Act as an open-end
management investment company and such registration has not been revoked or
rescinded and is in full force and effect.
(d) To the Trustee's best knowledge, there are no material
legal, administrative or other proceedings pending or threatened against CIT or
the CIT Funds which could result in liability on the part of the CIT Funds.
(e) At the Effective Time, subject only to the delivery of the
Assets as contemplated by this Agreement, the Master Funds will acquire the
Assets free and clear of all liens, pledges security interests, charges or other
encumbrances of any nature whatsoever and without any restrictions upon the
transfer thereof, except such liabilities as have been imposed by federal or
state securities laws.
(f) No consent, approval, authorization or order of any court
or governmental authority is required for the consummation by CIT of the
transactions contemplated by this Agreement, except such as may be required
under the Securities Act of 1933, as amended ("1933 Act"), the Securities
Exchange Act of 1934, as amended ("1934 Act") or the 1940 Act, and the rules and
regulations thereunder, or state securities laws (which term as used in this
Agreement shall include the laws of the District of Columbia and Puerto Rico).
(g) Insofar as the following relate to CIT. the proxy
materials of CIT filed with the SEC pursuant to Section 14(a) of the 1934 Act
and Section 20(a) of the 1940 Act with respect to the transactions contemplated
by this Agreement, and any supplement or amendment thereto or the documents
appended thereto (the "Proxy Materials"), on the mailing date of the Proxy
Materials, at the time of the Participants' meeting to be held pursuant to
Section 7 of this Agreement and at the Effective Time shall not contain any
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
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provided, that the representations and warranties made by CIT in this subsection
shall not apply to statements in or omissions from the Proxy Materials made in
reliance upon and in conformity with information furnished by SRF or the Master
Trust for use therein as provided in Section 8 of this Agreement.
(h) No Master Fund Interest or Seafirst Share to which CIT is
entitled or which is to be received by CIT in the transactions contemplated
herein shall be sold or otherwise disposed of by CIT, except as contemplated
herein.
(i) SRF and the Master Trust shall be given a reasonable
opportunity to review and comment upon all reports, notices, registration
statements, proxy statements and other material relating to any aspect of this
Agreement or the transactions contemplated hereunder, filed by CIT with the SEC
or with any other federal, state or local authority or to be distributed to the
Participants.
(j) SRF will acquire the Master Fund Interests to which CIT is
entitled free and clear of all liens, pledges, security interests, charges or
other encumbrances of any nature whatsoever and without any restriction on the
transfer thereof (except as set forth in Section 4(h) hereof and in the Master
Trust's Amended and Restated Declaration of Trust).
5. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SRF. SRF on
behalf or itself and the Seafirst Funds, represents and warrants to, and agrees
with, the other parties as follows (said representations, warranties and
agreements being made solely on behalf of each Seafirst Fund):
(a) SRF is a business trust duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) This Agreement has been duly authorized, executed and
delivered by SRF, and represents a valid and binding contract, enforceable
against SRF in accordance with its terms. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated by
this Agreement will not, violate its Declaration of Trust or By-laws, any
agreement or arrangement to which it is a party or by which it is bound, or any
order or decree to which it is subject.
(c) At the Effective Time, SRF will be duly registered under
the 1940 Act as an open-end management investment company and such registration
will not have been revoked or rescinded and will be in full force and effect.
(d) The Seafirst Funds intend to qualify as regulated
investment companies under Part I of Subchapter M of Subtitle A,
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Chapter 1 of the Internal Revenue Code of 1986, as amended (the "Code") after
the Effective Time.
(e) To SRF's best knowledge, there are no material legal,
administrative or other proceedings pending or threatened against SRF or the
Seafirst Funds which could result in liability on the part of the Seafirst
Funds.
(f) At the Effective Time, subject only to the delivery of the
Seafirst Shares as contemplated by this Agreement, such shares will be the only
outstanding shares of SRF, all of which will be duly authorized, validly issued,
fully paid and nonassessable; no shareholder of SRF has any preemptive right to
subscription or purchase in respect thereof; and CIT will acquire the Seafirst
Shares free and clear of all liens, pledges, security interests, charges or
other encumbrances of any nature whatsoever and without any restrictions upon
the transfer thereof (except as set forth in Section 4(h) hereof).
(g) No consent, approval, authorization or order of any court
or governmental authority is required for the consummation by SRF of the
transactions contemplated by this Agreement, except such as may be required
under the 1933 Act, the 1934 Act, or the 1940 Act, the rules and regulations
thereunder, or state securities laws.
(h) The information provided by SRF for inclusion in the Proxy
Materials shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; in the event that SRF becomes aware of any
such untrue statement or omissions, SRF shall promptly notify CIT of such untrue
statement or omission.
(i) As of the Effective Time, the Seafirst Shares will be duly
qualified for offering to the public in all states of the United States in which
such qualification is required or an exemption to such requirement shall have
been obtained.
6. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE MASTER
TRUST. The Master Trust, on behalf of itself and the Master Funds, represents
and warrants to, and agrees with, the other parties as follows (said
representations, warranties and agreements being made solely on behalf of each
Master Fund):
(a) The Master Trust is a business trust duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) This Agreement has been duly authorized, executed and
delivered by the Master Trust, and represents a valid and binding contract,
enforceable against the Master Trust in
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accordance with its terms. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated by this Agreement
will not, violate its Declaration of Trust or By-laws, any agreement or
arrangement to which it is a party or by which it is bound, or any order or
decree to which it is subject.
(c) At the Effective Time, the Master Trust will be duly
registered under the 1940 Act as an open-end management investment company and
such registration will not have been revoked or rescinded and will be in full
force and effect.
(d) To the Master Trust's best knowledge, there are no
material legal, administrative or other proceedings pending or threatened
against the Master Trust, the Master Funds or any other series of the Master
Trust which could result in liability on the part of the Master Funds.
(e) At the Effective Time, subject only to the delivery of the
Master Fund Interests as contemplated by this Agreement, such Interests will be
the only outstanding Interests of the Master Trust, all of which will be duly
authorized, validly issued, fully paid and nonassessable; no interestholder of
the Master Trust has any preemptive right to subscription or purchase in respect
thereof; and CIT will be entitled to, and SRF shall, acquire the Master Fund
Interests free and clear of all liens, pledges, security interests, charges or
other encumbrances of any nature whatsoever and without any restrictions upon
the transfer thereof (except as set forth in Section 4(h) hereof and in the
Master Trust's Amended and Restated Declaration of Trust).
(f) No consent, approval, authorization or order of any court
or governmental authority is required for the consummation by the Master Trust
of the transactions contemplated by this Agreement, except such as may be
required under the 1933 Act, the 1934 Act, or the 1940 Act, the rules and
regulations thereunder, or state securities laws.
(g) The information provided by the Master Trust for inclusion
in the Proxy Materials shall not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; in the event that the Master Trust
becomes aware of any such untrue statement or omissions, the Master Trust shall
promptly notify CIT of such untrue statement or omission.
7. MEETING OF CTI'S PARTICIPANTS.
(a) CIT shall call a meeting of its Participants, as soon as
practicable after the clearance date of the proxy solicitation materials to be
prepared and filed pursuant to
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Section 8 of this Agreement, for the purpose of considering and voting upon:
(i) Approval of this Agreement and the transactions
contemplated hereby, including (A) the transfer of the Assets to the
Master Funds by CIT in exchange for which CIT shall be entitled to have
issued to it by the Master Trust Master Fund Interests, (B) the
issuance to SRF of the Master Fund Interests to which CIT is entitled
in exchange for Seafirst Shares, (C) the termination of the CIT Money
Market Fund, and (D) the liquidation of CIT through the distributions
to its Participants described in this Agreement.
(ii) Approval of modifications to the investment
restrictions of each of the CIT Securities Funds.
(iii) Authorization of the CIT Securities Funds, as the
sole shareholders of the Master Funds immediately prior to the
Reorganization, to approve an Investment Advisory Agreement between the
Master Trust and Bank of America National Trust and Savings Association
("Bank of America") and a Sub-Advisory Agreement between Bank of
America and Seattle Capital Management Company, in substantially the
forms attached to CIT's definitive proxy statement with respect to such
shareholders meeting.
(iv) Such other matters as may be determined by the Board
of Supervisors of CIT and the Boards of Trustees of SRF and the Master
Trust.
(b) Consummation or the Reorganization is contingent upon
approval by the appropriate Participants of each of the matters set forth in
Section 7(a)(i)-(iii) of this Agreement.
8. PROXY SOLICITATION MATERIALS. CIT shall file Proxy Materials with
the SEC relating to the matters described in Section 7 as promptly as
practicable. SRF, the Master Trust and CIT have cooperated and shall continue to
cooperate with each other, and each has furnished and shall continue to furnish
the others with the information relating to itself that is required by the 1933
Act, the 1934 Act, the 1940 Act, the rules and regulations under each or such
Acts and state securities laws, to be included in the Proxy Materials.
9. AMENDMENT TO REGISTRATION STATEMENT.
(a) CIT shall file with the SEC as promptly as practicable a
post-effective amendment to its registration statement on Form N-1A reflecting
the proposed modifications of its investment restrictions and shall use its
best efforts to
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ensure that the SEC will declare effective such amendment immediately prior to
the Effective Time.
(b) SRF shall file with the SEC, as promptly as practicable, a
registration statement on Form N-1A pursuant to Rule 414 under the 1933 Act and
1940 Act adopting CIT's registration statement on Form N-1A as amended, and
shall use its best efforts to ensure that the SEC will declare effective such
registration statement immediately prior to the Effective Time.
10. EFFECTIVE TIME OF THE REORGANIZATION. Delivery of the Assets, the
Master Fund Interests and the Seafirst Shares to be issued pursuant to Section 1
of this Agreement, and the liquidation and termination of CIT, shall occur at
11:00 a.m., at the offices of CIT on September 25, 1993, or at such other place,
time and date as may be agreed to by the Boards of Supervisors or Trustees of
each of the parties. The date and time at which such actions are taken are
referred to herein as the "Effective Time." To the extent any Assets are, for
any reason, not transferred at the Effective Time, the Trustee shall cause such
Assets to be transferred in accordance with this Agreement at the earliest
practicable date thereafter.
11. CONDITIONS PRECEDENT OF SRF.
The obligations of SRF to consummate the transactions
contemplated hereby shall be subject to the following conditions precedent:
(a) SRF shall have received at the Effective Time a
certificate of the Principal Executive Officer or President and the Treasurer of
CIT and the Master Trust dated as of the Effective Time to the effect set forth
in Sections 14(b) and 14(c) of this Agreement with respect to CIT and the Master
Trust.
(b) SRF shall have received an opinion of Xxxxx Xxxxxx
Xxxxxxxx, counsel to CIT, in form reasonably satisfactory to SRF and dated the
Effective Time, to the effect that:
(i) CIT is a trust duly created and validly
existing under the laws of the State of Washington;
(ii) CIT is registered as an open-end management
investment company under the 1940 Act;
(iii) this Agreement has been duly authorized, executed
and delivered by CIT, and represents a valid and binding contract of
CIT, enforceable against CIT in accordance with its terms, subject to
the effect of bankruptcy, insolvency, moratorium, fraudulent conveyance
and similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto, provided
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that such counsel shall express no opinion with respect to the
application of equitable principles in any proceeding whether at law or
in equity;
(iv) the execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated by this
Agreement will not, violate the Amended and Restated Declaration of
Trust or CIT or any material agreement known to such counsel to which
CIT is a party or by which it is bound;
(v) such counsel does not have actual knowledge of
any material suit, action or legal or administrative proceeding pending
or threatened against CIT or the CIT Funds, the unfavorable outcome of
which would materially and adversely affect the CIT Funds, and
(vi) no consent, approval, authorization or order of any
court or governmental authority is required for the consummation by CIT
of the transactions contemplated by this Agreement under the National
Banking Act or the rules and regulations thereunder.
Such opinion: (i) may rely on the opinion of other counsel to the
extent set forth in such opinion, provided such other counsel is reasonably
acceptable to SRF; and (ii) shall state that such opinion is solely for the
benefit of SRF and its trustees and officers.
(c) The Assets to be transferred to the Master Funds under
this Agreement shall include no assets which the Seafirst Funds or Master Funds
may not properly acquire pursuant to their respective investment limitations or
objectives or may not otherwise lawfully acquire, unless SRF and the Master
Trust shall have received a written list of such assets that are to be so
transferred at least ten business days before the Effective Date and SRF and the
Master Trust fail to deliver to the Trustee an objection in writing to such
assets at least five business days before the Effective Date.
(d) The Trustee shall have paid all of the then remaining
unamortized organizational expenses of CIT reflected on its books and records,
except those expenses that are carried forward to, and assumed by, SRF in
accordance with generally accepted accounting principles and the policies of the
SEC.
(e) SRF shall have received an opinion of Drinker Xxxxxx &
Xxxxx, counsel to the Master Trust, in form reasonably satisfactory to SRF and
dated the Effective Time, to the effect that:
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(i) The Master Trust is a business trust duly
organized and validly existing under the laws of the State of Delaware.
(ii) The Master Trust is authorized to issue an unlimited
number of beneficial interests, and each Master Fund Interest upon
issuance to SRF pursuant to this Agreement will be duly authorized,
validly issued, fully paid and non-assessable and to such counsel's
knowledge, no interestholder of the Master Trust has any preemptive
right to subscription or purchase in respect thereof;
(iii) the Master Trust is a diversified, open-end
management investment company registered under the 1940 Act,
(iv) this Agreement has been duly authorized, executed and
delivered by the Master Trust, and represents a valid and binding
contract of the Master Trust, enforceable against the Master Trust in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, moratorium, fraudulent conveyance and similar laws relating
to or affecting creditors' rights generally and court decisions with
respect thereto, provided that such counsel shall express no opinion
with respect to the application of equitable principles in any
proceeding whether at law or in equity;
(v) the execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated by this
Agreement will not, violate the Amended and Restated Declaration of
Trust or By-laws of the Master Trust or any material agreement known to
such counsel to which the Master Trust is a party or by which it is
bound,
(vi) such counsel does not have actual knowledge of any
material suit, action or legal or administrative proceeding pending or
threatened against the Master Trust or any Master Fund, the unfavorable
outcome or which would materially and adversely affect the Master
Funds; and
(vii) no consent, approval, authorization or order of any
court or governmental authority is required for the consummation by the
Master Trust of the transactions contemplated by this Agreement, except
such as have been obtained under the 1933 Act, the 1934 Act, or the
1940 Act, the rules and regulations under such Acts and such as may be
required by state securities laws.
Such opinion (i) may rely on the opinion of other counsel to the extent
set forth in such opinion, provided such other counsel is reasonably acceptable
to SRF; and (ii) shall state that such
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opinion is solely for the benefit of SRF and its trustees and officers.
12. CONDITIONS PRECEDENT OF CIT. The obligations of the Trustee to
consummate the transactions contemplated hereby on behalf of CIT shall be
subject to the following conditions precedent:
(a) SRF and the Master Trust shall each have furnished the
Trustee at the Effective Time with a certificate of its President and Treasurer
dated the Effective Time to the effect set forth in Sections 14(b) and 14(c) of
this Agreement.
(b) The Trustee shall have received an opinion of Drinker
Xxxxxx & Xxxxx, counsel to SRF, in form reasonably satisfactory to CIT and dated
the Effective Time, to the effect that:
(i) SRF is a business trust duly organized and
validly existing under the laws of the State of Delaware;
(ii) SRF is authorized to issue an unlimited number of
shares of beneficial interest, and each Seafirst Share upon issuance to
CIT pursuant to this Agreement will be duly authorized, validly issued,
fully paid and nonassessable and to such counsel's knowledge, no
shareholder of SRF has any preemptive right to subscription or purchase
in respect thereof;
(iii) SRF is a diversified, open-end management investment
company registered under the 1940 Act;
(iv) this Agreement has been duly authorized, executed and
delivered by SRF, and represents a valid and binding contract of SRF,
enforceable against SRF in accordance with its terms, subject to the
effect of bankruptcy, insolvency, moratorium, fraudulent conveyance and
similar laws relating to or affecting creditors' rights generally and
court decisions with respect thereto, provided that such counsel shall
express no opinion with respect to the application of equitable
principles in any proceeding whether at law or in equity;
(v) the execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated by this
Agreement will not, violate the Declaration of Trust or By-laws of SRF
or any material agreement known to such counsel to which SRF is a party
or by which it is bound;
(vi) such counsel does not have actual knowledge of any
material suit, action or legal or administrative
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proceeding pending or threatened against SRF or any Seafirst Fund, the
unfavorable outcome of which would materially and adversely affect the
Seafirst Funds; and
(vii) no consent, approval, authorization or order of any
court or governmental authority is required for the consummation by SRF
of the transactions contemplated by this Agreement, except such as have
been obtained under the 1933 Act, the 1934 Act, or the 1940 Act, the
rules and regulations under such Acts and such as may be required by
state securities laws.
Such opinion (i) may rely on the opinion of other counsel to the extent
set forth in such opinion, provided such other counsel is reasonably acceptable
to CIT; and (ii) shall state that such opinion is solely for the benefit of CIT
and its Supervisors and officers.
(c) CIT shall have received an opinion of Drinker Xxxxxx &
Xxxxx to the effect set forth in Section 11 (e) hereof with respect to the
Master Trust.
(d) The Trustee shall have received from SRF a duly executed
instrument whereby each Seafirst Fund assumes all of the liabilities and
obligations of the corresponding CIT Securities Fund.
13. CONDITIONS PRECEDENT OF THE MASTER TRUST. The obligations of the
Master Trust to consummate the transactions contemplated hereby shall be subject
to the following conditions precedent:
(a) The Trustee shall have furnished the Master Trust with a
statement of Assets, with values determined in accordance with the current
policies and practices of CIT, and with their respective dates of acquisition
and tax costs and holding periods, all as of 4:00 p.m. Eastern time on the day
preceding the Effective Time, certified on its behalf by its President (or any
Vice President) and Treasurer.
(b) The Master Trust shall have received at the Effective Time
a certificate of the President and Treasurer of the Trustee and SRF dated as of
the Effective Time to the effect set forth in Sections 14 (b) and 14(c) of this
agreement with respect to CIT and SRF.
(c) The Master Trust shall have received duly executed bills
of sale, assignments, certificates and other instruments or transfer ("Transfer
Documents") as the Master Trust may reasonably request to transfer all of CIT's
and each CIT Securities Fund's right, title and interest in and to the Assets.
The Assets shall be accompanied by all necessary state stock
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transfer stamps or cash for the appropriate purchase price therefor.
(d) The Master Trust shall have received an opinion of Xxxxx
Xxxxxx Xxxxxxxx, counsel to CIT, to the effect set forth, in Section 11 (b)
hereof.
(e) The Master Trust shall have received an opinion of Drinker
Xxxxxx & Xxxxx, counsel to SRF, to the effect set forth in Section 12(b) hereof.
(f) The Assets to be transferred to the Master Funds under
this Agreement shall include no assets which the Master Funds or SRF may not
properly acquire pursuant to their respective investment limitations or
objectives or may not otherwise lawfully acquire, unless the Master Trust and
SRF shall have received a written list of such assets that are to be so
transferred at least ten business days before the Effective Date and the Master
Trust and SRF fail to deliver to the Trustee an objection in writing to such
assets at least five business days before the Effective Date.
(g) The Trustee shall have paid all of the then remaining
unamortized organizational expenses of CIT reflected on its books and records,
except those expenses that are carried forward to, and assumed by, SRF in
accordance with generally accepted accounting principles and the policies of the
SEC.
14. CONDITIONS PRECEDENT OF EACH PARTY. The obligations of each party
to this Agreement to consummate the transactions contemplated hereby shall be
subject to the following conditions precedent:
(a) Subject to Section 20 hereof, this Agreement shall have
been adopted and the transactions contemplated by this Agreement shall have been
approved by the Participants of CIT, in the manner required by all applicable
laws.
(b) All representations and warranties of each other party
made in this Agreement shall be true and correct at and as of the Effective Time
in all material respects with the same effect as if made at and as of the
Effective Time.
(c) Each other party shall have performed and complied in all
material respects with each of its agreements and covenants required by this
Agreement to be performed or complied with by it prior to or at the Effective
Time.
(d) The parties shall have received all permits and other
authorizations necessary under state securities laws to consummate the
transactions contemplated by this Agreement.
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(e) At the Effective Time, no action, suit or other proceeding
shall be threatened or pending before any court or governmental agency seeking
to restrain or prohibit, or obtain damages or other relief in connection with,
this Agreement or the transactions contemplated herein.
(f) The SEC shall not have issued an unfavorable advisory
report under Section 25(b) of the 1940 Act, nor instituted nor threatened to
institute any proceeding seeking to enjoin consummation of the transactions
contemplated by this Agreement under Section 25(c) of the 1940 Act.
(g) The Trustee, SRF and the Master Trust shall have received
an opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx addressed to the Trustee, SRF
and the Master Trust, in form reasonably satisfactory to them and dated the
Effective Time, to the effect that the Reorganization will not result in any
taxable income for federal income tax purposes to the CIT Securities Funds, the
Master Trust or SRF.
(h) The Trustee, SRF and the Master Trust shall have received
an opinion of Xxxxx Xxxxxx Xxxxxxxx, counsel to CIT, addressed to the Trustee,
SRF and the Master Trust, in form reasonably satisfactory to them and dated the
Effective Date, to the effect that the Reorganization will not constitute a
prohibited transaction resulting in the imposition of any federal excise tax
pursuant to Section 4975 of the Code.
(i) SRF shall have received the written agreement of
Seattle-First National Bank to reimburse expenses of the Seafirst Funds in
excess of the levels referred to in the Proxy Materials.
(j) On the business day prior to the Effective Time, all Units
of CIT Securities Funds held of record by Participants voting against
transactions contemplated hereby shall have been redeemed.
15. ANNOUNCEMENTS. Any announcements or similar publicity with respect
to this Agreement or the transactions contemplated herein shall be at such time
and in such manner as the parties shall agree; provided, that nothing herein
shall prevent any party upon notice to the other parties from making such public
announcements as such party's counsel may consider advisable in order to satisfy
the party's legal and contractual obligations in such regard.
16. EXPENSES. The parties understand that Bank of America has
undertaken to assume all of the legal, accounting, proxy solicitation and
Participants' meetings, printing, mailings, deregistration, termination and
special Trustee and Supervisor meeting expenses and all other expenses arising
in connection with the Reorganization, whether or not the Reorganization is
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consummated, other than SRF's share registration expenses arising in connection
with the Reorganization.
17. FURTHER ASSURANCES. Subject to the terms and conditions herein
provided, each of the parties hereto shall use its best efforts lo take, or
cause to be taken, such actions, to execute and deliver, or cause to be executed
and delivered, such additional documents and instruments and to do, or cause to
be done, all things necessary, proper or advisable under the provisions of this
Agreement and under applicable law to consummate and make effective the
transactions contemplated by this Agreement, including without limitation,
delivering and/or causing to be delivered to the Master Trust each account,
book, record or other document of the CIT Securities Funds required to be
maintained by Section 31(a) of the 1940 Act and Rules 31a-1 to 3la-3 thereunder
(regardless of whose possession they are in). The Trustee has instructed CIT's
service contractors to provide SRF and the Master Trust with access to and
copies of all documents belonging to CIT.
18. TERMINATION OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the parties in this Agreement shall terminate upon the
issuance of the Seafirst Shares to the Trustee on behalf of CIT.
19. TERMINATION OF AGREEMENT. This Agreement may be terminated by a
party at any time at or prior to the Effective Time by a written notice of the
good faith determination of a majority of its Board of Supervisors or Trustees,
as the case may be, that the Reorganization is no longer in the interests of its
respective unitholders, shareholders or interestholders.
20. AMENDMENT AND WAIVER. At any time prior to or (to the fullest
extent permitted by law) after approval of this Agreement by the Participants of
CIT (a) the parties hereto may, by written agreement authorized by their
respective Boards of Supervisors or Trustees and with or without the approval of
their respective unitholders, shareholders or interestholders, amend any of the
provisions of this Agreement, if, in the judgment of such Board, such amendment
will not have a material adverse effect on the interests of the Participants of
CIT, the shareholders of SRF or the interestholders of the Master Trust,
respectively; and (b) any party may waive any breach by any other party or the
failure to satisfy any of the conditions to its obligations (such waiver to be
in writing and authorized by the Board of Supervisors or Trustees of the waiving
party with or without the approval of such party's unitholders, shareholders or
interestholders).
21. FAILURE TO ENFORCE. The failure or any party hereto to enforce at
any time any of the provisions of this Agreement shall in no way be construed to
be a waiver of any such provision, nor in any way to affect the validity of this
Agreement or any part
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hereof or the right of any party thereafter to enforce each and every such
provision. No waiver of any breach of this Agreement shall be held to be a
waiver of any other or subsequent breach.
22. GOVERNING LAW. This Agreement and the transactions contemplated
hereby shall be governed, construed and enforced in accordance with the laws of
the State of Washington, without regard to principles of conflicts of law.
23. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
respective successors and permitted assigns of the parties hereto. This
Agreement and the rights, obligations and liabilities hereunder may not be
assigned by any party without the consent or all other parties.
24. BENEFICIARIES. Nothing contained in this Agreement shall be deemed
to create rights in persons not parties hereto, other than the successors and
permitted assigns of the parties.
25. SRF, CIT, MASTER TRUST AND TRUSTEE LIABILITY. Each party
acknowledges and agrees that the obligations of SRF, the Master Trust, the
Trustee and CIT under this Agreement are binding only with respect to the
Seafirst Funds, the Master Funds and CIT Funds, respectively; and that any
liability of SRF, the Master Trust or CIT under this Agreement with respect to a
Seafirst Fund, Master Fund or CIT Fund, respectively, or in connection with the
transactions contemplated herein with respect to such Seafirst Fund, Master Fund
or CIT Fund, shall be discharged only out of the assets of such Seafirst Fund,
Master Fund or CIT Fund, and no other portfolio of SRF, the Master Trust or CIT
shall be liable with respect to this Agreement or in connection with the
transactions contemplated herein.
26. NOTICES. All notices and other communications required or permitted
herein shall be in writing and shall be deemed to be properly given when
delivered personally or by telecopier (except for legal process) to the party
entitled to receive the notice or communication or when sent by certified or
registered mail, postage prepaid, or delivered to an internationally recognized
overnight courier service, in each case properly addressed to the party entitled
to receive such notice or communication at the address or telecopier number
stated below or to such other address or telecopier number as may hereafter be
furnished in writing by notice similarly given by one party to the other parties
hereto:
IF TO SRF:
Seafirst Retirement Funds
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxxxx 00000
Telecopier number: (000) 000-0000
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Attention: President
With copies to
Xxxxxx X. Xxxxx, Esq. W. Xxxxx XxXxxxxx, III, Esq.
Bank of America National Trust Drinker Xxxxxx & Xxxxx
and Savings Association 1100 Philadelphia National
000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx Xxxx Xxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000 0000 Xxxxxxxx Xxxxxx
Telecopier number: (000) 000-0000 Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier number: (000) 000-0000
IF TO THE TRUSTEE OR CIT:
Collective Investment Trust for Seafirst
Retirement Accounts
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxxxx 00000
Telecopier number: (000) 000-0000
Attention: Principal Executive Officer
With copies to:
Xxxx Xxxxxxxx, Esq. Xxxxxxx X. Xxxxx, Esq.
Seafirst Bank Xxxxx Xxxxxx Xxxxxxxx
000 0xx Xxxxxx, 00xx Xxxxx 0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000 0000 0xx Xxxxxx
Telephone number: (000) 000-0000 Xxxxxxx, Xxxxxxxxxx 00000
Telecopier number: (000) 000-0000
IF TO THE MASTER TRUST:
Master Investment Trust, Series I
P.O. Box 309
Grand Cayman, Cayman Islands
British West Indies
Attention: President
With copies to:
Xxxxxx X. Xxxxx, Esq. W. Xxxxx XxXxxxxx, III, Esq.
Bank of America National Trust Drinker Xxxxxx & Xxxxx
and Savings Association 1100 Philadelphia National
000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx Xxxx Xxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000 0000 Xxxxxxxx Xxxxxx
Telecopier number: (000) 000-0000 Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier number: (000) 000-0000
27. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties hereto and supersedes any
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and all prior agreements, arrangements and understandings relating to
matters provided for herein.
28. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized officers designated below as of the date
first written above.
COLLECTIVE INVESTMENT TRUST FOR
SEAFIRST RETIREMENT ACCOUNTS
ATTEST: By: Seattle-First Bank, as Trustee
/s/ Signature Illegible By:/s/ Xxxxxx X. Xxxxxxxxx
-------------------------- --------------------------------
AVP Title: Senior V.P.
ATTEST: SEAFIRST RETIREMENT FUNDS
/s/ W. Xxxxx XxXxxxxx By:/s/ Xxxxxxx Xxxxxxxxx
-------------------------- --------------------------------
Secretary Title: President
ATTEST: MASTER INVESTMENT TRUST, SERIES I
/s/ W. Xxxxx XxXxxxxx By:/s/ Xxxxxxx X. Xxxxxxxx
-------------------------- --------------------------------
Secretary Title: President
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