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SIGNATURE BRIAN CLARKE
TITLE VP \ CONTROLLER
Exhibit 2
Investment Services for Education Associations Trust
BY-LAWS
These By-laws (the By-laws ) of Investment Services for Education
Associations Trust (the Trust ), a Delaware business trust, are subject
to the Amended and Restated Agreement of Trust of the Trust dated
as of December 11, 1996, as from time to time amended, supple-
mented or restated (the Trust Instrument ). Capitalized terms used
herein which are defined in the Trust Instrument are used as therein
defined.
ARTICLE I
PRINCIPAL OFFICE
The principal office of the Trust shall be located in such location as
the Trustees may from time to time determine. The Trust may
establish and maintain such other offices and places of business as the
Trustees may from time to time determine.
ARTICLE II
OFFICERS AND THEIR ELECTION
3.1 Officers. The officers of the Trust shall be a
President, a Treasurer, a Secretary, and such other officers as the
Trustees may from time to time elect. It shall not be necessary for
any Trustee or other officer to be a holder of Shares in the Trust.
3.2 Election of Officers. Two or more offices may
be held by a single person. Subject to the provisions of Section 2.3
hereof, the officers shall hold office until their successors are chosen
and qualified and serve at the pleasure of the Trustees.
3.3 Resignations. Any officer of the Trust may
resign by filing a written resignation with the President, the Secretary
or the Trustees, which resignation shall take effect on being so filed
or at such later time as may be therein specified.
ARTICLE III
POWERS AND DUTIES OF OFFICERS AND TRUSTEES
3.4 Chief Executive Officer. Unless the Trustees
have designated the Chairman as the chief executive officer of the
Trust, the President shall be the chief executive officer of the Trust
and shall preside at all meetings of the Shareholders.
3.5
3.5 Treasurer. The Treasurer shall be the principal
financial and accounting officer of the Trust. He shall deliver all
funds and securities of the Trust which may come into his hands to
such company as the Trustees shall employ as Custodian in
accordance with the Trust Instrument and applicable provisions of
law. He shall make annual reports regarding the business and
condition of the Trust, which reports shall be preserved in Trust
records, and he shall furnish such other reports regarding the business
and condition of the Trust as the Trustees may from time to time
require. The Treasurer shall perform such additional duties as the
Trustees or the chief executive officer may from time to time
designate.
3.6 Secretary. The Secretary shall record in books
kept for the purpose all votes and proceedings of the Trustees and the
Shareholders at their respective meetings. He shall have the custody
of the seal of the Trust. The Secretary shall perform such additional
duties as the Trustees or the chief executive officer may from time to
time designate.
3.7 Vice President. Any Vice President of the
Trust shall perform such duties as the Trustees or the chief executive
officer may from time to time designate. At the request or in the
absence or disability of the President, the most senior Vice President
present and able to act may perform all the duties of the President
and, when so acting, shall have all the powers of and be subject to all
the restrictions upon the President.
3.8 Assistant Treasurer. Any Assistant Treasurer
of the Trust shall perform such duties as the Trustees or the Treasurer
may from time to time designate, and, in the absence of the
Treasurer, the most senior Assistant Treasurer present and able to act
may perform all the duties of the Treasurer.
3.9 Assistant Secretary. Any Assistant Secretary of
the Trust shall perform such duties as the Trustees or the Secretary
may from time to time designate, and, in the absence of the Secretary,
the most senior Assistant Secretary present and able to act may
perform all the duties of the Secretary.
3.10 Additional Officers. The Trustees from time
to time may appoint such other officers or agents as they may deem
advisable, each of whom shall have such title, hold office for such
period, have such authority and perform such duties as the Trustees
may determine.
3.11 Surety Bonds. The Trustees may require any
officer or agent of the Trust to execute a bond (including, without
limitation, any bond required by the Investment Company Act of 1940
(the 1940 Act ) in such sum and with such surety or sureties as the
Trustees may determine, conditioned upon the faithful performance of
his duties to the Trust including responsibility for negligence and for
the accounting of any of the Trust s property, funds or securities that
may come into his hands.
3.12 Removal. Any officer may be removed from
office at any time by the Trustees.
3.13 Remuneration. The salaries or other
compensation, if any, of the officers of the Trust shall be fixed from
time to time by resolution of the Trustees.
ARTICLE IV
SHAREHOLDERS MEETINGS
3.14 Notices. Notices of any meeting of the
Shareholders shall be given by the Secretary by delivering or mailing,
postage prepaid, to each Shareholder entitled to vote at said meeting,
written or printed notification of such meeting at least seven days
before the meeting, to such address as may be registered with the
Trust by the Shareholder. Notice of any Shareholder meeting need
not be given to any Shareholder if a written waiver of notice,
executed before or after such meeting, is filed with the record of such
meeting, or to any Shareholder who shall attend such meeting in
person or by proxy. Notice of adjournment of a Shareholders
meeting to another time or place need not be given, if such time and
place are announced at the meeting or reasonable notice is given to
persons present at the meeting.
3.15
3.15 Voting-Proxies. Subject to the provisions of
the Trust Instrument, Shareholders entitled to vote may vote either in
person or by proxy, provided that either (i) an instrument authorizing
such proxy to act is executed by the Shareholder in writing and dated
not more than eleven months before the meeting, unless the
instrument specifically provides for a longer period or (ii) the
Trustees adopt by resolution an electronic, telephonic, computerized
or other alternative to execution of a written instrument authorizing
the proxy to act, which authorization is received not more than
eleven months before the meeting. Proxies shall be delivered to the
Secretary of the Trust or other person responsible for recording the
proceedings before being voted. A proxy with respect to Shares held
in the name of two or more persons shall be valid if executed by one
of them unless at or prior to exercise of such proxy the Trust receives
a specific written notice to the contrary from any one of them. Unless
otherwise specifically limited by their terms, proxies shall entitle the
holder thereof to vote at any adjournment of a meeting. A proxy
purporting to be exercised by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise and the
burden of proving invalidity shall rest on the challenger. At all
meetings of the Shareholders, unless the voting is conducted by
inspectors, all questions relating to the qualifications of voters, the
validity of proxies, and the acceptance or rejection of votes shall be
decided by the Chairman of the meeting. Except as otherwise
provided herein or in the Trust Instrument, all matters relating to the
giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Shareholders were shareholders of a Delaware
corporation.
3.16
3.16 Place of Meeting. All meetings of the
Shareholders shall be held at such places as the Trustees may
designate.
3.17
ARTICLE V
SHARES OF BENEFICIAL INTEREST
3.17 Share Certificate. No certificates certifying
the ownership of Shares shall be issued except as the Trustees may
otherwise authorize. The Trustees may issue certificates to a
Shareholder of any Series or Class thereof for any purpose and the
issuance of a certificate to one or more Shareholders shall not require
the issuance of certificates generally. In the event that the Trustees
authorize the issuance of Share certificates, such certificate shall be in
the form prescribed from time to time by the Trustees and shall be
signed by the President or a Vice President and by the Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary. Such
signatures may be facsimiles if the certificate is signed by a transfer
or shareholder services agent or by a registrar, other than a Trustee,
officer or employee of the Trust. In case any officer who has signed
or whose facsimile signature has been placed on such certificate shall
have ceased to be such officer before such certificate is issued, it may
be issued by the Trust with the same effect as if he or she were such
officer at the time of its issue.
3.18
3.18 Loss of Certificate. In case of the alleged loss
or destruction or the mutilation of a Share certificate, a duplicate
certificate may be issued in place thereof, upon such terms as the
Trustees may prescribe.
3.19 . Discontinuance of Issuance of Certificates.
The Trustees may at any time discontinue the issuance of Share
certificates and may, by written notice to each Shareholder, require
the surrender of Share certificates to the Trust for cancellation. Such
surrender and cancellation shall not affect the ownership of Shares in
the Trust.
ARTICLE VI
INSPECTION OF BOOKS
The
Trustees shall from time to time determine whether and to what
extent, and at what times and places, and under what conditions and
regulations the accounts and books of the Trust or any of them shall
be open to the inspection of the Shareholders; and no Shareholder
shall have any right to inspect any account or book or document of the
Trust except as conferred by law or otherwise by the Trustees.
ARTICLE VII
SEAL
The seal of the Trust shall be circular in form bearing the inscription:
Investment Services for Education Associations Trust -- 1996
THE STATE OF DELAWARE
The form of the seal shall be subject to alteration by the Trustees and
the seal may be used by causing it or a facsimile to be impressed or
affixed or printed or otherwise reproduced.
Any officer or Trustee of the Trust shall have authority to affix the
seal of the Trust to any document, instrument or other paper executed
and delivered by or on behalf of the Trust; however, unless otherwise
required by the Trustees, the seal shall not be necessary to be placed
on and its absence shall not impair the validity of any document,
instrument, or other paper executed by or on behalf of the Trust.
ARTICLE VIII
AMENDMENTS
These By-laws may be amended from time to time by the Trustees.
ARTICLE IX
HEADINGS
Headings are placed in these By-laws for convenience of reference
only and, in case of any conflict, the text of these By-laws rather than
the headings shall control.
(..continued)
-5-
PHTRANS:142437_3.WP5
Exhibit 1
INVESTMENT SERVICES FOR EDUCATION ASSOCIATIONS
TRUST
AMENDED AND RESTATED AGREEMENT OF TRUST
AMENDED AND RESTATED AS OF
December 11, 1996
TABLE OF CONTENTS
Page
ARTICLE I - NAME AND DEFINITIONS 1
Section 1.1 Name 1
Section 1.2 Definitions 1
ARTICLE II - BENEFICIAL INTEREST 3
Section 2.1 Shares of Beneficial Interest 3
Section 2.2 Issuance of Shares 3
Section 2.3 Register of Shares and Share Certificates 3
Section 2.4 Transfer of Shares 4
Section 2.5 Treasury Shares 4
Section 2.6 Establishment of Series and Classes 4
Section 2.7 Investment in the Trust 5
Section 2.8 Assets and Liabilities Belonging to
Series 5
Section 2.9 No Preemptive Rights 7
Section 2.10 Conversion Rights 7
Section 2.11 Legal Proceedings 7
Section 2.12 Status of Shares 7
ARTICLE III - THE TRUSTEES 8
Section 3.1 Management of the Trust 8
Section 3.2 Term of Office of Trustees 8
Section 3.3 Vacancies and Appointment of Trustees 9
Section 3.4 Temporary Absence of Trustee 9
Section 3.5 Number of Trustees 9
Section 3.6 Effect of Death, Resignation, Etc. of a
Trustee 9
Section 3.7 Ownership of Assets of the Trust 10
Section 3.8 No Accounting 10
ARTICLE IV - POWERS OF THE TRUSTEES 10
Section 4.1 Powers 10
Section 4.2 Issuance and Repurchase of Shares 14
Section 4.3 Trustees and Officers as Shareholders 15
Section 4.4 Action by the Trustees and Committees 15
Section 4.5 Chairman of the Trustees 15
Section 4.6 Principal Transactions 16
ARTICLE V - INVESTMENT ADVISER, PRINCIPAL
UNDERWRITER,
ADMINISTRATOR, TRANSFER AGENT, CUSTODIAN
AND OTHER
CONTRACTORS 16
Section 5.1 Certain Contracts 16
ARTICLE VI - SHAREHOLDER VOTING POWERS AND
MEETINGS 18
Section 6.1 Voting 18
Section 6.2 Meetings 19
Section 6.3 Quorum and Required Vote 20
Section 6.4 Action by Written Consent 20
ARTICLE VII - DISTRIBUTIONS AND REDEMPTIONS 20
Section 7.1 Distributions 20
Section 7.2 Redemption by Shareholder 21
Section 7.3 Redemption by Trust 21
Section 7.4 Net Asset Value 22
ARTICLE VIII - LIMITATION OF LIABILITY AND
INDEMNIFICATION 23
Section 8.1 Limitation of Liability 23
Section 8.2 Indemnification 23
Section 8.3 Indemnification Determinations 24
Section 8.4 Indemnification Not Exclusive 24
Section 8.5 Shareholders 24
ARTICLE IX - MISCELLANEOUS 25
Section 9.1 Trust Not a Partnership 25
Section 9.2 Trustees Good Faith Action, Expert
Advice, No Bond or Surety 25
Section 9.3 Establishment of Record Dates 26
Section 9.4 Termination of Trust or Series 26
Section 9.5 Merger, Consolidation, Incorporation 27
Section 9.6 Filing of Copies, References, Headings 28
Section 9.7 Applicable Law 28
Section 9.8 Amendments 29
Section 9.9 Fiscal Year 29
Section 9.10 Provisions in Conflict with Law 29
Section 9.11 Allocation of Certain Expenses 30
INVESTMENT SERVICES FOR EDUCATION ASSOCIATIONS
TRUST
AMENDED AND RESTATED AGREEMENT OF TRUST
of Investment Services For Education Associations Trust, a Delaware
statutory business trust, made as of December 11, 1996, by William
T. Sullivan, as Trustee.
WHEREAS, the Trust was organized pursuant to an
Agreement of Trust dated December 4, 1996 (the Original
Agreement ) and the filing of a Certificate of Trust in the Office of
the Secretary of State of the State of Delaware on December 4, 1996;
and
WHEREAS, the Trust desires to amend and restate the
Original Agreement in its entirety in accordance with the terms hereof
and to continue the Trust under the Act for the investment and
reinvestment of funds contributed thereto;
NOW, THEREFORE, the Trustee declares that all money
and property contributed to the trust hereunder shall be held and
managed in trust under this Amended and Restated Agreement of
Trust ( Trust Instrument ) as herein set forth below.
ARTICLE I
NAME AND DEFINITIONS
2.1 Name. The name of the trust continued hereby is the
Investment Services for Education Associations Trust.
2.2 Definitions. Wherever used herein, unless otherwise
required by the context or specifically provided:
(a) Act means the Delaware Business Trust
Act, 12 Del. C. SS 3801 et seq., as from time to time amended;
(b) By-laws means the by-laws referred to in
Section 4.1(e) hereof, as from time to time amended;
(c) The terms Affiliated Person, Assignment,
Commission, Interested Person and Principal Underwriter shall
have the meanings given them in the 1940 Act. Majority Shareholder
Vote shall have the same meaning as the term vote of a majority of
the outstanding voting securities is given in the 1940 Act;
(d) Class means any division of Shares within
a Series, which Class is or has been established in accordance with
the provisions of Article II.
(e) Net Asset Value means the net asset value
of each Series of the Trust determined in the manner provided in
Section 7.4 hereof;
(f) Outstanding Shares means those Shares
recorded from time to time in the books of the Trust or its transfer
agent as then issued and outstanding, but shall not include Shares
which have been redeemed or repurchased by the Trust and which are
at the time held in the treasury of the Trust;
(g) Series means a series of Shares of the
Trust established in accordance with the provisions of Section 2.6
hereof;
(h) Shareholder means a record owner of
Outstanding Shares of the Trust;
(i) Shares means the equal proportionate
transferable units of beneficial interest into which the beneficial
interest of each Series of the Trust or Class thereof shall be divided
and may include fractions of Shares as well as whole Shares;
(j) Trust refers to Investment Services for
Education Associations Trust and reference to the Trust, when
applicable to one or more Series of the Trust, shall refer to any such
Series;
(k) Trustee or Trustees means the person or
persons who has or have signed this Trust Instrument, so long as such
person or persons shall continue in office in accordance with the terms
hereof, and all other persons who may from time to time be duly
qualified and serving as Trustees in accordance with the provisions of
Article III hereof and reference herein to a Trustee or to the Trustees
shall refer to the individual Trustees in their capacity as Trustees
hereunder;
(l) Trust Property means any and all
property, real or personal, tangible or intangible, which is owned or
held by or for the account of one or more of the Trust or any Series,
or the Trustees on behalf of the Trust or any Series.
(m) The 1940 Act refers to the Investment
Company Act of 1940 and the Rules and Regulations thereunder, all
as may be amended from time to time.
ARTICLE II
BENEFICIAL INTEREST
2.3 Shares of Beneficial Interest. The beneficial interest in
the Trust shall be divided into such transferable Shares of one or more
separate and distinct Series or Classes as the Trustees shall from time
to time create and establish. The number of Shares of each Series and
Class authorized hereunder is unlimited. Each Share shall have a par
value of $.0001 per Share, unless otherwise determined by the
Trustees in connection with the creation and establishment of a Series
or Class. All Shares issued hereunder, including without limitation or
Class Shares issued in connection with a dividend in Shares or a split
or reverse split of Shares, shall be fully paid and nonassessable.
2.4 Issuance of Shares. The Trustees in their discretion
may, from time to time, without vote of the Shareholders, issue
Shares of each Series and Class to such party or parties and for such
amount and type of consideration (or for no consideration if pursuant
to a Share dividend or split-up), subject to applicable law, including
cash or securities (including Shares of a different Series or Class), at
such time or times and on such terms as the Trustees may deem
appropriate, and may in such manner acquire other assets (including
the acquisitions of assets subject to, and in connection with, the
assumption of liabilities) and businesses. In connection with any
issuance of Shares, the Trustees may issue fractional Shares and
Shares held in the treasury. The Trustees may from time to time
divide or combine the Shares into a greater or lesser number without
thereby changing the proportionate beneficial interests in the Trust.
The Trustees may classify or reclassify any unissued Shares or any
Shares previously issued and reacquired of any Series or Class into
one or more Series or Classes that may be established and designated
from time to time.
Any Trustee, officer or other agent of the Trust, and
any organization in which any such person is interested, may acquire,
own, hold and dispose of Shares of any Series or Class of the Trust to
the same extent as if such person were not a Trustee, officer or other
agent of the Trust; and the Trust may issue and sell or cause to be
issued and sold and may purchase Shares of any Series or Class from
any such person or any such organization subject only to the general
limitations, restrictions or other provisions applicable to the sale or
purchase of Shares of such Series or Class generally.
2.5 Register of Shares and Share Certificates. A register
shall be kept at the principal office of the Trust or an office of the
Trust s transfer agent which shall contain the names and addresses of
the Shareholders of each Series and Class, the number of Shares of
that Series and Class thereof held by them respectively and a record
of all transfers thereof. As to Shares for which no certificate has been
issued, such register shall be conclusive as to who are the holders of
the Shares and who shall be entitled to receive dividends or other
distributions or otherwise to exercise or enjoy the rights of
Shareholders. No Shareholder shall be entitled to receive payment of
any dividend or other distribution, nor to have notice given to him as
herein or in the By-laws provided, until he has given his address to
the transfer agent or such other officer or agent of the Trust as shall
keep the said register for entry thereon. The Trustees, in their
discretion, may authorize the issuance of share certificates and
promulgate appropriate rules and regulations as to their use. In the
event that one or more certificates are issued, whether in the name of
a Shareholder or a nominee, such certificate or certificates shall
constitute evidence of ownership of Shares for all purposes, including
transfer, assignment or sale of such Shares, subject to such limitations
as the Trustees may, in their discretion, prescribe.
2.6 Transfer of Shares. Except as otherwise provided by the
Trustees, Shares shall be transferable on the records of the Trust only
by the record holder thereof or by his agent thereunto duly authorized
in writing, upon delivery to the Trustees or the Trust s transfer agent
of a duly executed instrument of transfer, together with a Share
certificate, if one is outstanding, and such evidence of the genuineness
of each such execution and authorization and of such other matters as
may be required by the Trustees. Upon such delivery the transfer
shall be recorded on the register of the Trust. Until such record is
made, the Shareholder of record shall be deemed to be the holder of
such Shares for all purposes hereunder and neither the Trustees nor
the Trust, nor any transfer agent or registrar nor any officer,
employee or agent of the Trust shall be affected by any notice of the
proposed transfer.
2.7 Treasury Shares. Shares held in the treasury shall, until
reissued pursuant to Section 2.2 hereof, not confer any voting rights
on the Trustees, nor shall such Shares be entitled to any dividends or
other distributions declared with respect to the Shares.
2.8 Establishment of Series and Classes. The Trust
continued hereby shall consist of one or more Series and Classes and
separate and distinct records shall be maintained by the Trust for each
Series and Class. The Trustees shall have full power and authority, in
their sole discretion, and without obtaining any prior authorization or
vote of the Shareholders of any Series or Class of the Trust, to
establish and designate and to change in any manner any initial or
additional Series or Classes and to fix such preferences, voting
powers, rights and privileges of such Series or Classes as the Trustees
may from time to time determine, to divide or combine the Shares or
any Series or Classes into a greater or lesser number, to classify or
reclassify any issued Shares or any Series or Classes into one or more
Series or Classes of Shares, and to take such other action with respect
to the Shares as the Trustees may deem desirable. Unless another
time is specified by the Trustees, the establishment and designation of
any Series or Class shall be effective upon the adoption of a resolution
by the Trustees setting forth such establishment and designation and
the preferences, powers, rights and privileges of the Shares of such
Series or Class. The Trust may issue any number of Shares of each
Series or Class and need not issue Shares.
All references to Shares in this Trust Instrument shall be deemed to be
Shares of any or all Series or Classes as the context may require. All
provisions herein relating to the Trust shall apply equally to each
Series and Class of the Trust except as the context otherwise requires.
All Shares of each Class of a particular Series shall represent an equal
proportionate interest in the assets belonging to that Series (subject to
the liabilities belonging to that Class), and each Share of any Class of
a particular Series shall be equal to each other Share of that Class; but
the provisions of this sentence shall not restrict any distinctions
permissible under this Section 2.6.
2.9 Investment in the Trust. The Trustees shall accept
investments in any Series of the Trust from such persons and on such
terms as they may from time to time authorize. At the Trustees
discretion, such investments, subject to applicable law, may be in the
form of cash or securities in which the affected Series is authorized to
invest, valued as provided in Section 7.4 hereof. Unless the Trustees
otherwise determine, investments in a Series shall be credited to each
Shareholder s account in the form of full Shares at the Net Asset
Value per Share next determined after the investment is received.
Without limiting the generality of the foregoing, the Trustees may, in
their sole discretion, (a) fix the Net Asset Value per Share of the
initial capital contribution, (b) impose sales or other charges upon
investments in the Trust or (c) issue fractional Shares.
2.10 Assets and Liabilities Belonging to Series. All
consideration received by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which such consideration
is invested or reinvested, all income, earnings, profits, and proceeds
thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from
any reinvestment of such proceeds in whatever form the same may be,
shall 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 Shareholders 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 Shares 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 Shareholders of all Series for all
purposes. The liabilities, expenses, costs, charges and reserves
allocated and so charged to a Series are herein referred to as
liabilities belonging to that Series. Except as provided in the next
sentence or otherwise required or permitted by applicable law or any
rule or order of the Commission, each Class of a Series shall bear a
pro rata portion of the liabilities belonging to such Series. To the
extent permitted by rule or order of the Commission the Trustees may
allocate all or a portion of any liabilities, expenses, costs, charges and
reserves belonging to a Series to a particular Class or Classes
(collectively, Class Expenses ) as the Trustees may from time to time
determine is appropriate.
Without limitation of the foregoing provisions of this Section 2.8, but
subject to the right of the Trustees in their discretion to allocate
general liabilities, expenses, costs, charges 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 the assets belonging to such Series only,
and not against the assets of the Trust generally. Notice of this
contractual limitation on inter-Series liabilities shall 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 Act, and upon the giving of such
notice in the certificate of trust, the statutory provisions of
Section 3804 of the Act relating to limitations on inter-Series
liabilities (and the statutory effect under Section 3804 of 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 satisfy or enforce
any debt, liability, obligation or expense incurred, contracted for or
otherwise existing with respect to that Series from the assets of that
Series only. No Shareholder or former Shareholder of any Series
shall have a claim on or any right to any assets allocated or belonging
to any other Series.
2.11 No Preemptive Rights. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or
other securities issued by the Trust or the Trustees, whether of the
same or another Series or Class.
2.12 Conversion Rights. The Trustees shall have the
authority to provide from time to time that the holders of Shares of
any Series or Class shall have the right to convert or exchange said
Shares for or into Shares of one or more other Series or Classes in
accordance with such requirements and procedures as may be
established from time to time by the Trustees.
2.13 Legal Proceedings. No person, other than a Trustee,
who is not a Shareholder of a particular Series or Class shall be
entitled to bring any derivative action, suit or other proceeding on
behalf of or with respect to such Series or Class. No Shareholder of a
Series or a Class may maintain a derivative action with respect to
such Series or Class unless holders of a least ten percent (10%) of the
outstanding Shares of such Series or Class join in the bringing of such
action. Except as otherwise provided in Section 3816 of the Act and
the foregoing provisions of this Section 2.11, all matters relating to
the bringing of derivative actions in the right of the Trust shall be
governed by the General Corporation Law of the State of Delaware
relating to derivative actions, and judicial interpretations thereunder,
as if the Trust were a Delaware Corporation and the Shareholders
were shareholders of a Delaware corporation.
2.14 Status of Shares. Shares shall be deemed to be
personal property giving only the rights provided in this instrument.
Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof. The
death of a Shareholder during the continuance of the Trust shall not
operate to terminate the Trust nor entitle the representative of any
deceased Shareholder to an accounting or to take any action in court
or elsewhere against the Trust or the Trustees, but only to the rights
of said decedent under this Trust. Ownership of Shares shall not
entitle the Shareholder to any title in or to the whole or any part of the
Trust property or right to call for a partition or division of the same or
for an accounting, nor shall the ownership of Shares constitute the
Shareholders partners.
ARTICLE III
THE TRUSTEES
2.15 Management of the Trust. 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 Trust
Instrument. The Trustees shall have power to conduct the business of
the Trust and carry on its operations in any and all of its branches and
maintain offices both within and without the State of Delaware, in any
and all states of the United States of America, in the District of
Columbia, in any and all commonwealths, territories, dependencies,
colonies, or possessions of the United States of America, and in any
foreign jurisdiction 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 Trust Instrument, the
presumption shall be in favor of a grant of power to the Trustees.
The enumeration of any specific power in this Trust
Instrument shall not be construed as limiting the aforesaid power.
The powers of the Trustees may be exercised without order of or
resort to any court.
Except for the Trustees named herein or Trustees appointed
to fill vacancies pursuant to Section 3.3 hereof, the Trustees shall be
elected by the Shareholders owning of record a plurality of the Shares
voting at a meeting of Shareholders.
2.16 Term of Office of Trustees. Each Trustee shall hold
office during the existence of this Trust, and until its termination as
herein provided; except: (a) that any Trustee may resign his trust by
written instrument signed by him and delivered to the Chairman,
President, Secretary, or other Trustee of the Trust, which shall take
effect upon such delivery or upon such later date as is specified
therein; (b) that any Trustee may be removed at any time by written
instrument, signed by at least two-thirds of the number of Trustees
prior to such removal, specifying the date when such removal shall
become effective; (c) that any Trustee who requests in writing to be
retired or who has died, become physically or mentally incapacitated
by reason of disease or otherwise, or is otherwise unable to serve,
may be retired by written instrument signed by a majority of the other
Trustees, specifying the date of his retirement; and (d) that a Trustee
may be removed at any meeting of the Shareholders of the Trust by a
vote of Shareholders owning at least two-thirds of the outstanding
Shares of all Series.
2.17 Vacancies and Appointment of Trustees. In case of the
declination to serve, death, resignation, retirement, removal, physical
or mental incapacity by reason of disease or otherwise of a Trustee,
or a Trustee is otherwise unable to serve, or an increase in the
number of Trustees, a vacancy shall occur. Whenever a vacancy in
the Board of Trustees shall occur, until such vacancy is filled, the
other Trustees shall have all the powers hereunder and the certificate
of the other Trustees of such vacancy shall be conclusive. In the case
of an existing vacancy, the remaining Trustee or Trustees shall fill
such vacancy by appointing such other person as such Trustee or
Trustees in their discretion shall see fit consistent with the limitations
under the 1940 Act, unless such Trustee or Trustees determine, in
accordance with Section 3.5, to decrease the size of the Board to the
number of remaining Trustees.
An appointment of a Trustee may be made by the Trustees
then in office in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in number of Trustees effective at
a later date, provided that said appointment shall become effective
only at or after the effective date of said retirement, resignation or
increase in number of Trustees.
An appointment of a Trustee shall be effective upon the
acceptance of the person so appointed to serve as trustee, except that
any such appointment in anticipation of a vacancy shall become
effective at or after the date such vacancy occurs.
2.18 Temporary Absence of Trustee. Any Trustee may, by
power of attorney, delegate his power for a period not exceeding six
months at any one time to any other Trustee or Trustees, provided
that in no case shall less than two Trustees personally exercise the
other powers hereunder except as herein otherwise expressly provided
or unless there is only one or two Trustees.
2.19 Number of Trustees. The number of Trustees shall be
one, or such other number as shall be fixed from time to time by the
Trustees.
2.20 Effect of Death, Resignation, Etc. of a Trustee. The
declination to serve, death, resignation, retirement, removal,
incapacity, or inability of the Trustees, or any one of them, shall not
operate to terminate the Trust or to revoke any existing agency
created pursuant to the terms of this Trust Instrument.
2.21 Ownership of Assets of the Trust. Legal title in and
beneficial ownership of all of the assets of the Trust shall at all times
be considered as vested in the Trust, except that the Trustees may
cause legal title in and beneficial ownership of any Trust Property to
be held by, or in the name of one or more of the Trustees acting for
and on behalf of the Trust, or in the name of any person as nominee
acting for and on behalf of the Trust. No Shareholder shall be
deemed to have a severable ownership interest in any individual asset
of the Trust or of any Series or Class, or any right of partition or
possession thereof, but each Shareholder shall have, except as
otherwise provided for herein, a proportionate undivided beneficial
interest in each Series the Shares of which are owned by such
Shareholders. The Shares shall be personal property giving only the
rights specifically set forth in this Trust Instrument. The Trust, or at
the determination of the Trustees, one or more of the Trustees or a
nominee acting for and on behalf of the Trust, shall be deemed to hold
legal title and beneficial ownership of any income earned on securities
of the Trust issued by any business entities formed, organized, or
existing under the laws of any jurisdiction, including the laws of any
foreign country.
2.22 No Accounting. Except to the extent required by the
1940 Act or, if determined to be necessary or appropriate by the other
Trustees under circumstances which would justify his or her removal
for cause, no person ceasing to be a Trustee for reasons including, but
not limited to, death, resignation, retirement, removal or incapacity
(nor the estate of any such person) shall be required to make an
accounting to the Shareholders or remaining Trustees upon such
cessation.
ARTICLE IV
POWERS OF THE TRUSTEES
2.23 Powers. The Trustees in all instances shall act as
principals, and are and shall be free from the control of the
Shareholders. The Trustees shall have full power and authority to do
any and all acts and to make and execute any and all contracts and
instruments that they may consider necessary or appropriate in
connection with the management of the Trust. The Trustees shall
have full authority and power to make any and all investments which
they, in their sole discretion, shall deem proper to accomplish the
purpose of this Trust. Subject to any applicable limitation in this
Trust Instrument, the Trustees shall have power and authority:
(a) To invest and reinvest cash and other
property, and to hold cash or other property uninvested, and to sell,
exchange, lend, pledge, mortgage, hypothecate, write options on and
lease any or all of the assets of the Trust;
(b) To operate as and carry on the business of
an investment company, and exercise all the powers necessary and
appropriate to the conduct of such operators, including the power to
invest all or any part of its assets in the securities of another
investment company;
(c) To borrow money and in this connection
issue notes or other evidence of indebtedness; to secure borrowings by
mortgaging, pledging or otherwise subjecting as security the Trust
Property; to endorse, guarantee, or undertake the performance of an
obligation, liability or engagement of any person and to lend Trust
Property;
(d) To provide for the distribution of interests
of the Trust either through a Principal Underwriter in the manner
hereinafter provided for or by the Trust itself, or both, or otherwise
pursuant to a plan of distribution of any kind;
(e) To adopt By-laws not inconsistent with this
Trust Instrument providing for the conduct of the business of the Trust
and to amend and repeal them to the extent that they do not reserve
that right to the Shareholders, which By-laws shall be deemed a part
of this Trust Instrument and are incorporated herein by reference;
(f) To elect and remove such officers and
appoint and terminate such agents and contractors as they consider
appropriate, any of whom may be a Trustee, and may provide for the
compensation of all of the foregoing;
(g) To employ one or more banks, trust
companies or companies that are members of a national securities
exchange or such other entities as custodians of any assets of the
Trust, subject to the 1940 Act and to any conditions set forth in this
Trust Instrument;
(h) To retain one or more transfer agents and
shareholder servicing agents, or both;
(i) To set record dates in the manner provided
herein or in the By-laws;
(j) To delegate such authority (which
delegation may include the power to subdelegate) as they consider
desirable to any officers of the Trust and to any investment adviser,
manager, administrator, custodian, underwriter or other agent or
independent contractor;
(k) To join with other holders of any securities
or debt instruments in acting through a committee, depository, voting
trustee or otherwise, and in that connection to deposit any security or
debt instrument with, or transfer any security or debt instrument to,
any such committee, depository or trustee, and to delegate to them
such power and authority with relation to any security or debt
instrument (whether or not so deposited or transferred) as the Trustees
shall deem proper and to agree to pay, and to pay, such portion of the
expenses and compensation of such committee, depository or trustee
as the Trustees shall deem proper;
(l) To enter into joint ventures, general or
limited partnerships and any other combinations or associations;
(m) To pay pensions for faithful service, as
deemed appropriate by the Trustees, and to adopt, establish and carry
out pension, profit-sharing, share bonus, share purchase, savings,
thrift and other retirement, incentive and benefit plans, trusts and
provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the
Trust.
(n) To the extent permitted by law, indemnify
any person with whom the Trust or any Series or Class has dealings.
(o) To engage in and to prosecute, defend,
compromise, abandon, or adjust by arbitration, or otherwise, any
actions, suits, proceedings, disputes, claims and demands relating to
the Trust, and out of the assets of the Trust or any Series or Class
thereof to pay or to satisfy any debts, claims or expenses incurred in
connection therewith, including those of litigation, and such power
shall include without limitation the power of the Trustees or any
appropriate committee thereof, in the exercise of their or its good
faith business judgment, to dismiss any action, suit, proceeding,
dispute, claim or demand, derivative or otherwise, brought by any
person, including a Shareholder in its own name or the name of the
Trust, whether or not the Trust or any of the Trustees may be named
individually therein or the subject matter arises by reason of business
for or on behalf of the Trust.
(p) To purchase and pay for entirely out of Trust
Property such insurance as they may deem necessary or appropriate
for the conduct of the business of the Trust, including, without
limitation, insurance policies insuring the Trust Property and payment
of distributions and principal on its investments, and insurance
policies insuring the Shareholders, Trustees, officers, representatives,
employees, agents, investment advisers, managers, administrators,
custodians, underwriters, or independent contractors of the Trust
individually against all claims and liabilities of every nature arising by
reason of holding, being or having held any such office or position, or
by reason of any action alleged to have been taken or omitted by any
such person in such capacity, including any action taken or omitted
that may be determined to constitute negligence, whether or not the
Trust would have the power to indemnify such person against such
liability.
(q) To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the assets of the
Trust, subject to the provisions of Section 9.4(b) hereof;
(r) To vote or give assent, or exercise any
rights of ownership, with respect to stock or other securities, debt
instruments or property; and to execute and deliver powers of attorney
to such person or persons as the Trustees shall deem proper, granting
to such person or persons such power and discretion with relation to
securities, debt instruments or property as the Trustees shall deem
proper;
(s) To exercise powers and rights of
subscription or otherwise which in any manner arise out of ownership
of securities or debt instruments;
(t) To hold any security or property in a form
not indicating any trust, whether in bearer, book entry, unregistered
or other negotiable form; or either in the name of the Trustees or of
the Trust or in the name of a custodian, subcustodian or other
depository or a nominee or nominees or otherwise;
(u) To establish separate and distinct Series
with separately defined investment objectives and policies and distinct
investment purposes in accordance with the provisions of Article II
hereof and to establish Classes thereof having relative rights, powers
and duties as they may provide consistent with applicable law;
(v) To consent to or participate in any plan for
the reorganization, consolidation or merger of any corporation, issuer
or concern, any security or debt instrument of which is held in the
Trust; to consent to any contract, lease, mortgage, purchase or sale of
property by such corporation, issuer or concern, and to pay calls or
subscriptions with respect to any security or debt instrument held in
the Trust;
(w) To compromise, arbitrate, or otherwise
adjust claims in favor of or against the Trust or any matter in
controversy including, but not limited to, claims for taxes;
(x) To make distributions of income and of
capital gains to Shareholders in the manner herein provided;
(y) To establish, from time to time, a minimum
investment for Shareholders in the Trust or in one or more Series or
Classes, and to require the redemption of the Shares of any
Shareholders whose investment is less than such minimum upon
giving notice to such Shareholder;
(z) To establish one or more committees
comprised of one or more of the Trustees, and to delegate any of the
powers of the Trustees to said committees;
(aa) To interpret the investment policies, practices
or limitations of any Series or Class;
(bb) To establish a registered office and have a
registered agent in the State of Delaware;
(cc) To compensate or provide for the
compensation of the Trustees, officers, advisers, administrators,
custodians, other agents, consultants, contractors and employees of
the Trust or the Trustees on such terms as they deem appropriate; and
(dd) In general, to carry on any other business
in connection with or incidental to any of the foregoing powers, to do
everything necessary, suitable or proper for the accomplishment of
any purpose or the attainment of any object or the furtherance of any
power herein set forth, either alone or in association with others, and
to do every other act or thing incidental or appurtenant to or growing
out of or connected with the aforesaid business or purposes, objects or
powers.
The foregoing clauses shall be construed both as objects and
powers, and the foregoing enumeration of specific powers shall not be
held to limit or restrict in any manner the general powers of the
Trustees. Any action by one or more of the Trustees in their capacity
as such hereunder shall be deemed an action on behalf of the Trust or
the applicable Series or Class, and not an action in an individual
capacity.
No one dealing with the Trustees shall be under any
obligation to make any inquiry concerning the authority of the
Trustees, or to see to the application of any payments made or
property transferred to the Trustees or upon their order.
2.24 Issuance and Repurchase of Shares. The Trustees shall
have the power to issue, sell, repurchase, redeem, retire, cancel,
acquire, hold, resell, reissue, dispose of, exchange, and otherwise
deal in Shares and, subject to the provisions set forth in Article II and
Article VII, to apply to any such repurchase, redemption, retirement,
cancellation or acquisition of Shares any funds or property of the
Trust, or the particular Series or Class of the Trust, with respect to
which such Shares are issued.
2.25 Trustees and Officers as Shareholders. Any Trustee,
officer or other agent of the Trust may acquire, own and dispose of
Shares to the same extent as if such person were not a Trustee, officer
or agent; and the Trustees may issue and sell or cause to be issued and
sold Shares to and buy such Shares from any such person or any firm
or company in which such person invested, subject to the general
limitations herein contained as to the sale and purchase of such
Shares.
2.26 Action by the Trustees and Committees. The Trustees
(and any committee thereof) may act at a meeting held in person or in
whole or in part by conference telecommunications equipment. One-
third, but not less than two, of the Trustees shall constitute a quorum
at any meeting unless there is only one Trustee. Except as the
Trustees may otherwise determine, one-third of the members of any
committee shall constitute a quorum at any meeting. The vote of a
majority of the Trustees (or committee members) present at a meeting
at which a quorum is present shall be the act of the Trustees (or any
committee thereof). The Trustees (and any committee thereof) may
also act by written consent signed by a majority of the Trustees (or
committee members). Regular meetings of the Trustees may be held
at such places and at such times as the Trustees may from time to
time determine. Special meetings of the Trustees (and meetings of
any committee thereof) may be called orally or in writing by the
Chairman of the Board of Trustees (or the chairman of any committee
thereof) or by any two other Trustees. Notice of the time, date and
place of all meetings of the Trustees (or any committee thereof) shall
be given by the party calling the meeting to each Trustee (or
committee member) by telephone, telefax, or telegram sent to the
person s home or business address at least twenty-four hours in
advance of the meeting or by written notice mailed to the person s
home or business address at least seventy-two hours in advance of the
meeting. Notice of all proposed written consents of Trustees (or
committees thereof) shall be given to each Trustee (or committee
member) by telephone, telefax, telegram, or first class mail sent to
the person s home or business address. Notice need not be given to
any person who attends a meeting without objecting to the lack of
notice or who executes a written consent or a written waiver of notice
with respect to a meeting. Written consents or waivers may be
executed in one or more counterparts. Execution of a written consent
or waiver and delivery thereof may be accomplished by telefax or
other electronic means approved by the Trustees.
2.27 Chairman of the Trustees. The Trustees may appoint
one of their number to be Chairman of the Board of Trustees. The
Chairman shall preside at all meetings of the Trustees at which he is
present and may be (but is not required to be) the chief executive
officer of the Trust.
2.28 Principal Transactions. Except to the extent prohibited
by applicable law, the Trustees may, on behalf of the Trust, buy any
securities from or sell any securities to, or lend any assets of the Trust
to, any Trustee or officer of the Trust or any firm of which any such
Trustee or officer is a member acting as principal, or have any such
dealings with any Affiliated Person of the Trust, investment adviser,
distributor or transfer agent for the Trust or with any Interested
Person of such Affiliated Person or other person; and the Trust may
employ any such Affiliated Person or other person, or firm or
company in which such Affiliated Person or other person is an
Interested Person, as broker, legal counsel, registrar, investment
adviser, distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
ARTICLE V
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER,
ADMINISTRATOR, TRANSFER AGENT, CUSTODIAN AND
OTHER CONTRACTORS
2.29 Certain Contracts. Subject to compliance with the
provisions of the 1940 Act, but notwithstanding any limitations of
present and future law or custom in regard to delegation of powers by
trustees generally, the Trustees may, at any time and from time to
time and without limiting the generality of their powers and authority
otherwise set forth herein, enter into one or more contracts with any
one or more corporations, trusts, associations, partnerships, limited
partnerships, other type of organizations, or individuals to provide for
the performance and assumption of some or all of the following
services, duties and responsibilities to, for or of the Trust and/or the
Trustees, and to provide for the performance and assumption of such
other services, duties and responsibilities in addition to those set forth
below as the Trustees may determine to be appropriate:
(a) Investment Adviser. The Trustees may in
their discretion, from time to time, enter into an investment advisory
or management contract or contracts with respect to the Trust or any
Series whereby the other party or parties to such contract or contracts
shall undertake to furnish the Trust with such management,
investment advisory, statistical and research facilities and services and
such other facilities and services, if any, and all upon such terms and
conditions, as the Trustees may in their discretion determine.
Notwithstanding any other provision of this Trust Instrument, the
Trustees may authorize any investment adviser (subject to such
general or specific instructions as the Trustees may from time to time
adopt) to effect purchases, sales or exchanges of portfolio securities,
other investment instruments of the Trust, or other Trust Property on
behalf of the Trustees, or may authorize any officer, agent, or Trustee
to effect such purchases, sales or exchanges pursuant to
recommendations of the investment adviser (and all without further
action by the Trustees). Any such purchases, sales and exchanges
shall be deemed to have been authorized by the Trustees.
The Trustees may authorize, subject to applicable
requirements of the 1940 Act, the investment adviser to employ, from
time to time, one or more sub-advisers to perform such of the acts
and services of the investment adviser, and upon such terms and
conditions, as may be agreed upon between the investment adviser and
sub-adviser. Any reference in this Trust Instrument to the investment
adviser shall be deemed to include such sub-advisers, unless the
context otherwise requires.
(b) Principal Underwriter. The Trustees may
in their discretion from time to time enter into an exclusive or non-
exclusive underwriting contract or contracts providing for the sale of
Shares, whereby the Trust may either agree to sell Shares to the other
party to the contract or appoint such other party its sales agent for
such Shares. In either case, the contract may also provide for the
repurchase or sale of Shares by such other party as principal or as
agent of the Trust.
(c) Administrator. The Trustees may in their
discretion from time to time enter into one or more contracts whereby
the other party or parties shall undertake to furnish the Trust with
administrative services. The contract or contracts shall be on such
terms and conditions as the Trustees may in their discretion
determine.
(d) Transfer Agent. The Trustees may in their
discretion from time to time enter into one or more transfer agency
and Shareholder service contracts whereby the other party or parties
shall undertake to furnish the Trustees with transfer agency and
Shareholder services. The contract or contracts shall be on such
terms and conditions as the Trustees may in their discretion
determine.
(e) Service and Distribution Plans. The
Trustees may, on such terms and conditions as they may in their
discretion determine, adopt one or more plans pursuant to which
compensation may be paid directly or indirectly by the Trust for
Shareholder servicing, administration and/or distribution services with
respect to one or more Series or Classes including without limitation,
plans subject to Rule 12b-1 under the 1940 Act, and the Trustees may
enter into agreements pursuant to such plans.
(f) Fund Accounting. The Trustees may in
their discretion from time to time enter into one or more contracts
whereby the other party or parties undertakes to handle all or any part
of the Trust s accounting responsibilities, whether with respect to the
Trust s properties, Shareholders or otherwise.
(g) Custodian and Depository. The Trustees
may in their discretion from time to time enter into one or more
contracts whereby the other party or parties undertakes to act as
depository for and to maintain custody of the property of the Trust or
any Series or Class and accounting records in connection therewith.
(h) Parties to Contract. Any contract described
in this Article V hereof may be entered into with any corporation,
firm, partnership, 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 relationship, nor shall any person
holding such relationship be disqualified from voting on or executing
the same in his capacity as Shareholder 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, provided that the contract when entered into was
not inconsistent with the provisions of this Article V. The same
person (including a firm, corporation, partnership, trust, or
association) may be the other party to contracts entered into pursuant
to this Article V, and any individual may be financially interested or
otherwise affiliated with persons who are parties to any or all of the
contracts mentioned in this Section 5.1.
ARTICLE VI
SHAREHOLDER VOTING POWERS AND MEETINGS
2.30 Voting. The Shareholders shall have power to vote
only: (a) for the election of one or more Trustees in order to comply
with the provisions of the 1940 Act (including Section 16(a) thereof);
(b) with respect to any contract entered into pursuant to Article V to
the extent required by the 1940 Act; (c) with respect to termination of
the Trust or a Series or Class thereof to the extent required by
applicable law; (d) with respect to any plan adopted pursuant to Rule
12b-1 (or any successor rule) under the 1940 Act, and related matters,
to the extent required under the 1940 Act; and (e) with respect to such
additional matters relating to the Trust as may be required by this
Trust Instrument, the By-laws or any registration of the Trust or
Series 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 each matter submitted to a vote of Shareholders, unless
the Trustees determine otherwise, all Shares of all Series and Classes
shall vote as a single class; provided, however, that: (a) as to any
matter with respect to which a separate vote of any Series or Class is
required by the 1940 Act or other applicable law or is required by
attributes applicable to any Series or Class, such requirements as to a
separate vote by that Series or Class shall apply; (b) unless the
Trustees determine that this clause (b) shall not apply in a particular
case, to the extent that a matter referred to in clause (a) above affects
more than one Series or Class and the interests of each such Series or
Class in the matter are identical, then the Shares of all such affected
Series or Classes shall vote as a single class; and (c) as to any matter
which does not affect the interests of a particular Series or Class, only
the holders of Shares of the one or more affected Series or Classes
shall be entitled to vote. Each whole Share shall be entitled to one
vote as to any matter on which it is entitled to vote, and each
fractional Share shall be entitled to a proportionate fractional vote.
There shall be no cumulative voting in the election of Trustees.
Shares may be voted in person or by proxy or in any manner provided
for in the By-laws. A proxy may be given in writing, by telefax, or
in any other manner provided for in the By-laws. Anything in this
Trust Instrument to the contrary notwithstanding, in the event a
proposal by anyone other than the officers or Trustees of the Trust is
submitted to a vote of the Shareholders of the Trust or one or more
Series or Classes thereof, or in the event of any proxy contest or
proxy solicitation or proposal in opposition to any proposal by the
officers or Trustees of the Trust, Shares may be voted only in person
or by written proxy. Until Shares are issued, the Trustees may
exercise all rights of Shareholders and may take any action required
or permitted by law, this Trust Instrument or any of the By-laws of
the Trust to be taken by Shareholders.
2.31 Meetings. Meetings of Shareholders (including
meetings involving only the holders of Shares of one or more but less
than all Series or Classes) may be called by the Trustees from time to
time to be held at such place within or without the State of Delaware,
and on such date as may be designated in the call thereof for the
purpose of taking action upon any matter as to which the vote or
authority of the Shareholders is required or permitted as provided in
Section 6.1. Special meetings of the Shareholders of any Series may
be called by the Trustees and shall be called by the Trustees upon the
written request of Shareholders owning at least a majority of the
Outstanding Shares entitled to vote, except to the extent that a lesser
percentage is prescribed by the 1940 Act. Notice shall be sent,
postage prepaid, by mail or such other means determined by the
Trustees, at least 7 days prior to any such meeting.
2.32 Quorum and Required Vote. Unless a larger
percentage is required by law, by any provision of this Trust
Instrument or by the Trustees, one-third of the Shares entitled to vote
in person or by proxy on a particular matter shall be a quorum for the
transaction of business at a Shareholders meeting with respect to that
matter. Any lesser number shall be sufficient for adjournments. Any
adjourned session or sessions may be held without the necessity of
further notice. Except when a larger vote is required by law, by any
provision of this Trust Instrument or by the Trustees, a majority of
the Shares voted in person or by proxy on a particular matter at a
meeting at which a quorum is present shall decide any questions with
respect to that matter and a plurality shall elect a Trustee.
2.33 Action by Written Consent. Subject to the provisions
of the 1940 Act and other applicable law, any action taken by
Shareholders may be taken without a meeting if a majority of the
Shares entitled to vote on the matter (or such larger proportion thereof
as shall be required by law, by any provision of this Trust Instrument
or by the Trustees) consent to the action in writing. Such consent
shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
ARTICLE VII
DISTRIBUTIONS AND REDEMPTIONS
2.34 Distributions.
(a) The Trustees may from time to time
declare and pay dividends or other distributions with respect to any
Series or Class. The amount of such dividends or distributions and
the payment of them and whether they are in cash or any other Trust
Property shall be wholly in the discretion of the Trustees.
(b) Dividends and other distributions may be
paid or made to the Shareholders of record at the time of declaring a
dividend or other distribution or among the Shareholders of record at
such other date or time or dates or times as the Trustees shall
determine, which dividends or distributions, at the election of the
Trustees, may be paid pursuant to a standing resolution or resolutions
adopted only once or with such frequency as the Trustees may
determine. All dividends and other distributions on Shares of a
particular Class shall be distributed pro rata to the Shareholders of
that Class in proportion to the number of Shares of that Class they
held on the record date established for such payment, except that in
connection with any dividend or distribution program or procedure the
Trustees may determine that no dividend or distribution shall be
payable on Shares as to which the Shareholder s purchase order
and/or payment in the prescribed form has not been received by the
time or times established by the Trustees under such program or
procedure. The Trustees may adopt and offer to Shareholders such
dividend reinvestment plans, cash dividend payout plans or related
plans as the Trustees shall deem appropriate.
(c) Anything in this Trust Instrument to the
contrary notwithstanding, the Trustees may at any time declare and
distribute a stock dividend pro rata among the Shareholders of a
particular Series, or Class thereof, as of the record date of that Series
or Class fixed as provided in Section (b) hereof. The Trustees shall
have full discretion, to the extent not inconsistent with the 1940 Act,
to determine which items shall be treated as income and which items
as capital; and each such determination and allocation shall be
conclusive and binding upon the Shareholders.
2.35 Redemption by Shareholder. (a) Unless the Trustees
otherwise determine with respect to a particular Series or Class at the
time of establishing and designating the same, each holder of Shares
of a particular Series or Class thereof shall have the right at such
times as may be permitted by the Trust, but no less frequently than
once each week, to require the Trust to redeem (out of the assets
belonging to the applicable Series) all or any part of his Shares at a
redemption price equal to the Net Asset Value per Share of that Series
or Class next determined in accordance with Section 7.4 after the
Shares are properly tendered for redemption, less such redemption fee
or other charge, if any, as may be fixed by the Trustees. Except as
otherwise provided in this Trust Instrument, payment of the
redemption price shall be in cash; provided, however, that to the
extent permitted by applicable law, the Trustees may authorize the
Trust to make payment wholly or partly in securities or other assets
belonging to the applicable Series at the value of such securities or
assets used in such determination of Net Asset Value.
(b) Notwithstanding the foregoing, the Trust may
postpone payment of the redemption price and may suspend the right
of the holders of Shares of any Series or Class to require the Trust to
redeem Shares of that Series or Class during any period or at any time
when and to the extent permissible under the 1940 Act.
(c) In the event that a Shareholder shall submit a
request for the redemption of a greater number of Shares than are
then allocated to such Shareholder, such request shall not be honored.
2.36 Redemption by Trust. Unless the Trustees otherwise
determine with respect to a particular Series or Class at the time of
establishing and designating the same, each Share of each Series or
Class thereof that has been established and designated is subject to
redemption (out of the assets belonging to the applicable Series) by
the Trust at the redemption price which would be applicable if such
Share was then being redeemed by the Shareholder pursuant to
Section 7.2 at any time if the Trustees determine in their sole
discretion that failure to so redeem may have materially adverse
consequences to the holders of the Shares, or any Series or Class of
the Trust, and upon such redemption the holders of the Shares so
redeemed shall have no further right with respect thereto other than to
receive payment of such redemption price. In addition, the Trustees,
in their sole discretion, may cause the Trust to redeem (out of the
assets belonging to the applicable Series) all of the Shares of one or
more Series or Classes held by (a) any Shareholder if the value of
such Shares held by such Shareholder is less than the minimum
amount established from time to time by the Trustees, (b) all
Shareholders of one or more Series or Classes if the value of such
Shares held by all Shareholders is less than the minimum amount
established from time to time by the Trustees or (c) any Shareholder
to reimburse the Trust for any loss or expense it has sustained or
incurred by reason of the failure of such Shareholder to make full
payment for Shares purchased by such Shareholder, or by reason of
any defective redemption request, or by reason of indebtedness
incurred because of such Shareholder as described in Section 9.11 or
to collect any charge relating to a transaction effected for the benefit
of such Shareholder or as provided in the prospectus relating to such
Shares.
2.37 Net Asset Value. The Net Asset Value per Share of
any Series or Class thereof shall be the quotient obtained by dividing
the value of the net assets of that Series or Class (being the value of
the assets belonging to that Series or Class less the liabilities
belonging to that Series or Class) by the total number of Shares of that
Series or Class outstanding, all determined in accordance with the
methods and procedures, including without limitation those with
respect to rounding, established by the Trustees from time to time.
The Trustees may determine to maintain the Net
Asset Value per Share of any Series at a designated constant dollar
amount and in connection therewith may adopt procedures not
inconsistent with the 1940 Act for the continuing declarations of
income attributable to that Series or Class thereof as dividends
payable in additional Shares of that Series or Class thereof at the
designated constant dollar amount and for the handling of any losses
attributable to that Series or Class thereof. Such procedures may,
among other things, provide that in the event of any loss each
Shareholder of a Series or Class thereof shall be deemed to have
contributed to the capital of the Trust attributable to that Series or
Class thereof his pro rata portion of the total number of Shares
required to be cancelled in order to permit the Net Asset Value per
Share of that Series or Class thereof to be maintained, after reflecting
such loss, at the designated constant dollar amount. Each Shareholder
of the Trust shall be deemed to have agreed, by his investment in the
Trust, to make the contribution referred to in the preceding sentence
in the event of any such loss.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
2.38 Limitation of Liability. Neither a Trustee nor an
officer of the Trust, when acting in such capacity, shall be personally
liable to any person other than the Trust or a beneficial owner for any
act, omission or obligation of the Trust, any Trustee or any officer of
the Trust. Neither a Trustee nor an officer of the Trust shall be liable
for any act or omission in his capacity as Trustee or as an officer of
the Trust, or for any act or omission of any officer (or other officer)
or employee of the Trust or of any other person or party, provided
that nothing contained herein or in the Act shall protect any Trustee or
officer against any liability to the Trust or to Shareholders 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 Trustee or the duties of such officer
hereunder.
2.39 Indemnification. The Trust shall indemnify each of its
Trustees and officers and persons who serve at the Trust s request as
directors, officers or trustees of another organization in which the
Trust has any interest as a shareholder, creditor, or otherwise (
Covered Person ) against all liabilities and expenses (including
amounts paid in satisfaction of judgments, in compromise, as fines
and penalties, and expenses including reasonable accountants and
counsel fees) reasonably incurred in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or
criminal, before any court or administrative or legislative body, in
which he may be involved or with which he may be threatened, while
as a Covered Person or thereafter, by reason of being or having been
such a Covered Person, except that no Covered Person shall be
indemnified against any liability to the Trust or its Shareholders to
which such Covered Person would otherwise be subject by reason of
bad faith, willful misfeasance, gross negligence or reckless disregard
of his duties involved in the conduct of such Covered Person s office
(such willful misfeasance, bad faith, gross negligence or reckless
disregard being referred to herein as Disabling Conduct ). Expenses,
including accountants and counsel fees so incurred by any such
Covered Person (but excluding amounts paid in satisfaction of
judgments, in compromise or as fines or penalties), may be paid from
time to time by the Trust in advance of the final disposition of any
such action, suit or proceeding upon receipt of (a) an undertaking by
or on behalf of such Covered Person to repay amounts so paid to the
Trust if it is ultimately determined that indemnification of such
expenses is not authorized under this Article VIII and either (b) such
Covered Person provides security for such undertaking,(c) the Trust is
insured against losses arising by reason of such payment, or (d) a
majority of a quorum of disinterested, non-party Trustees, or
independent legal counsel in a written opinion, determines, based on a
review of readily available facts, that there is reason to believe that
such Covered Person ultimately will be found entitled to
indemnification.
2.40 Indemnification Determinations. Indemnification of a
Covered Person pursuant to Section 8.2 shall be made if (a) the court
or body before whom the proceeding is brought determines, in a final
decision on the merits, that such Covered Person was not liable by
reason of Disabling Conduct or (b) in the absence of such a
determination, a majority of a quorum of disinterested, non-party
Trustees or independent legal counsel in a written opinion make a
reasonable determination, based upon a review of the facts, that such
Covered Person was not liable by reason of Disabling Conduct.
2.41 Indemnification Not Exclusive. The right of
indemnification provided by this Article VIII shall not be exclusive of
or affect any other rights to which any such Covered Person may be
entitled. As used in this Article VIII, Covered Person shall include
such person s heirs, executors and administrators, and a disinterested,
non-party Trustee is a Trustee who is neither an Interested Person of
the Trust nor a party to the proceeding in question.
2.42 Shareholders. Each Shareholder of the Trust and of
each Series shall not be personally liable for the debts, liabilities,
obligations and expenses incurred by, contracted for, or otherwise
existing with respect to, the Trust or by or on behalf of any Series.
The Trustees shall have no power to bind any Shareholder personally
or to call upon any Shareholder for the payment of any sum of money
or assessment whatsoever other than such as the Shareholder may at
any time personally agree to pay by way of subscription for any
Shares or otherwise.
In case any Shareholder or former Shareholder of any Series
shall be held to be personally liable solely by reason of his being or
having been a Shareholder of such Series and not because of his acts
or omissions or for some other reason, the Shareholder or former
Shareholder (or his 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
Shareholder, assume the defense of any claim made against the
Shareholder for any act or obligation of the Series and satisfy any
judgment thereon from the assets of the Series. The indemnification
and reimbursement required by the preceding sentence shall be made
only out of assets of the one or more Series whose Shares were held
by said Shareholder at the time the act or event occurred which gave
rise to the claim against or liability of said Shareholder. The rights
accruing to a Shareholder under this Section shall not impair any other
right to which such Shareholder may be lawfully entitled, nor shall
anything herein contained restrict the right of the Trust or any Series
thereof to indemnify or reimburse a Shareholder in any appropriate
situation even though not specifically provided herein.
ARTICLE IX
MISCELLANEOUS
2.43 Trust Not a Partnership. It is hereby expressly
declared that a trust and not a partnership is created hereby. All
persons extending credit to, contracting with or having any claim
against any Series of the Trust shall look only to the assets of such
Series for payment under such credit, contract or claim; and neither
the Shareholders nor the Trustees, nor any of the Trust s officers,
employees or agents, whether past, present or future, shall be
personally liable therefor. Every note, bond, contract or other
undertaking issued by or on behalf of the Trust or the Trustees
relating to the Trust or to a Series shall include a recitation limiting
the obligations represented thereby to the Trust or to one or more
Series and its or their assets (but the omission of such a recitation
shall not operate to bind any Shareholder, Trustee, officer, employee
or agent of the Trust).
2.44 Trustees Good Faith Action, Expert Advice, No Bond
or Surety. The exercise by the Trustees of their powers and
discretions hereunder shall be binding upon everyone interested.
Subject to the provisions of Article VIII: (a) the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of
any officer, agent, employee, consultant, adviser, administrator,
distributor or principal underwriter, custodian or transfer, dividend
disbursing, Shareholder servicing or accounting agent of the Trust,
nor shall any Trustee be responsible for the act or omission of any
other Trustee; (b) the Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Trust
Instrument and their duties as Trustees, and shall be under no liability
for any act or omission in accordance with such advice or for failing
to follow such advice; and (c) in discharging their duties, the
Trustees, when acting in good faith, shall be entitled to rely upon the
books of account of the Trust and upon written reports made to the
Trustees by any officer appointed by them, any independent public
accountant, and (with respect to the subject matter of the contract
involved) any officer, partner or responsible employee of a
contracting party appointed by the Trustees. The Trustees as such
shall not be required to give any bond or surety or any other security
for the performance of their duties.
2.45 Establishment of Record Dates. The Trustees may
close the Share transfer books of the Trust for a period not exceeding
one hundred twenty (120) days preceding the date of any meeting of
Shareholders, or the date for the payment of any dividends or other
distributions, or the date for the allotment of rights, or the date when
any change or conversion or exchange of Shares shall go into effect;
or in lieu of closing the stock transfer books as aforesaid, the Trustees
may fix in advance a date, not exceeding one hundred twenty (120)
days preceding the date of any meeting of Shareholders, or the date
for payment of any dividend or other distribution, or the date for the
allotment of rights, or the date when any change or conversion or
exchange of Shares shall go into effect, as a record date for the
determination of the Shareholders entitled to notice of, and to vote at,
any such meeting, or entitled to receive payment of any such dividend
or other distribution, or to any such allotment of rights, or to exercise
the rights in respect of any such change, conversion or exchange of
Shares, and in such case such Shareholders and only such
Shareholders as shall be Shareholders of record on the date so fixed
shall be entitled to such notice of, and to vote at, such meeting, or to
receive payment of such dividend or other distribution, or to receive
such allotment or rights, or to exercise such rights, as the case may
be, notwithstanding any transfer of any Shares on the books of the
Trust after any such record date fixed as aforesaid.
2.46 Termination of Trust or Series.
(a) This Trust shall continue without limitation
of time but subject to the provisions of sub-sections (b) and (c) of this
Section 9.4.
(b) The Trustees may
(i) sell and convey all or substantially
all of the assets of the Trust or any Series or Class
to another trust, partnership, limited liability
company, association or corporation, or to a
separate Series or Class of shares thereof, organized
under the laws of any state or jurisdiction, for
adequate consideration which may include the
assumption of all outstanding obligations, taxes and
other liabilities, accrued or contingent, of the Trust
or any Series or Class, and which may include
shares of beneficial interest, stock or other
ownership interests of such trust, partnership,
limited liability company, association or corporation
or of a series thereof; or
(ii) at any time sell and convert into
money all of the assets of the Trust or any Series or
Class.
Upon reasonable provision, in the determination of the
Trustees, for the payment of all such liabilities in either (i) or (ii), by
such assumption or otherwise, the Shareholders of each Class of a
Series involved in such sale or conversion shall be entitled to receive,
as a Class, when and as declared by the Trustees, the excess of the
assets belonging to that Series that are allocated to such Class over the
liabilities belonging to that Series that are allocated to such Class.
The assets so distributable to the Shareholders of any particular Class
of a Series shall be distributed among such Shareholders in proportion
to the number of Shares of that Class held by them and recorded on
the books of the Trust. In the event a series is not divided into
Classes, the foregoing provisions shall be applied on a Series by
Series basis.
(c) Upon completion of the distribution of the
remaining proceeds or the remaining assets as provided in sub-section
(b), the Trust (in the case of a sale or conversion with respect to the
Trust as a whole or the last remaining Series) or any affected Series
or Class shall terminate and the Trustees and the Trust shall be
discharged of any and all further liabilities and duties hereunder and
the right, title and interest of all parties with respect to the Trust or
such affected Series or Class shall be cancelled and discharged.
Upon termination of the Trust, following completion of
winding up of its business, the Trustees shall cause a certificate of
cancellation of the Trust s certificate of trust to be filed in accordance
with the Act, which certificate of cancellation may be signed by any
one Trustee.
2.47 Merger, Consolidation, Incorporation. Anything in
this Trust Instrument to the contrary notwithstanding, the Trustees, in
order to change the form of organization and/or domicile of the Trust,
may, without prior Shareholder approval, (i) cause the Trust to merge
or consolidate with or into one or more trusts, partnerships, limited
liability companies, associations or corporations which is formed,
organized or existing under the laws of a state, commonwealth
possession or colony of the United States, or (ii) cause the Trust to
incorporate under the laws of Delaware. Any agreement of merger or
consolidation or certificate of merger may be signed by a majority of
the Trustees. Pursuant to and in accordance with the provisions of
Section 3815(f) of the Act, and notwithstanding anything to the
contrary contained in this Trust Instrument, an agreement of any
merger or consolidation approved in accordance with this Section 9.5
may effect any amendment to the Trust Instrument or effect the
adoption of a new trust instrument of the Trust if it is the surviving or
resulting trust in the merger or consolidation. Any merger or
consolidation of the Trust other than as described in the foregoing
provisions of this Section 9.5 shall, in addition to the approval of the
Trustees, require a Majority Shareholder Vote. Nothing in this
Section 9.5 shall require, however, Shareholder approval of any
transaction whereby the Trust or any Series thereof acquires or
assumes all or any part of the assets and liabilities of any other entity.
2.48 Filing of Copies, References, Headings. The original
or a copy of this Trust Instrument and of each amendment hereof or
Trust Instrument supplemental hereto shall be kept at the office of the
Trust where it may be inspected by any Shareholder. Anyone dealing
with the Trust may rely on a certificate by an officer or Trustee of the
Trust as to whether or not any such amendments or supplements have
been made and as to any matters in connection with the Trust
hereunder, and with the same effect as if it were the original, may
rely on a copy certified by an officer or Trustee of the Trust to be a
copy of this Trust Instrument or of any such amendment or
supplemental Trust Instrument. In this Trust Instrument or in any
such amendment or supplemental Trust Instrument, references to this
Trust Instrument, and all expressions like herein, hereof and
hereunder, shall be deemed to refer to this Trust Instrument as
amended or affected by any such supplemental Trust Instrument. All
expressions like his , he and him , shall be deemed to include the
feminine and neuter, as well as masculine, genders. Headings are
placed herein for convenience of reference only and in case of any
conflict, the text of this Trust Instrument rather than the headings,
shall control. This Trust Instrument may be executed in any number
of counterparts each of which shall be deemed an original.
2.49 Applicable Law. The trust set forth in this instrument
is made in the State of Delaware, and the Trust and this Trust
Instrument, and the rights and obligations of the Trustees and
Shareholders hereunder, are to be governed by and construed and
administered according to the Act and the laws of said State;
provided, however, that there shall not be applicable to the Trust, the
Trustees or this Trust 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 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 Trust
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 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.
2.50
2.50 Amendments. Except as specifically provided herein,
the Trustees may, without Shareholder vote, amend or otherwise
supplement this Trust Instrument by making an amendment, a Trust
Instrument supplemental hereto or an amended and restated trust
instrument. Shareholders shall have the right to vote: (i) on any
amendment which would affect their right to vote granted in Section
6.1, (ii) on any amendment to this Section 9.8, (iii) on any
amendment for which such vote is required by law and (iv) on any
amendment submitted to them by the Trustees. Any amendment
required or permitted to be submitted to Shareholders which, as the
Trustees determine, shall affect the Shareholders of one or more
Series or Classes shall be authorized by vote of the Shareholders of
each Series or Class affected and no vote of shareholders of a Series
or Class not affected shall be required. Anything in this Trust
Instrument to the contrary notwithstanding, any amendment to Article
VIII hereof shall not limit the rights to indemnification or insurance
provided therein with respect to action or omission of any persons
protected thereby prior to such amendment.
2.51 Fiscal Year. The fiscal year of the Trust shall end on a
specified date as determined from time to time by the Trustees.
2.52 Provisions in Conflict with Law. The provisions of
this Trust Instrument are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is
in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code or with other applicable laws
and regulations, the conflicting provision shall be deemed never to
have constituted a part of this Trust Instrument; provided, however,
that such determination shall not affect any of the remaining
provisions of this Trust Instrument or render invalid or improper any
action taken or omitted prior to such determination. If any provision
of this Trust 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 provisions in any other jurisdiction or any other provision of this
Trust Instrument in any jurisdiction.
Section 9.11 Allocation of Certain Expenses. Each
Shareholder will, at the discretion of the Trustees, indemnify the
Trust against all expenses and losses resulting from indebtedness
incurred in connection with facilitating (i) requests pending receipt of
the collected funds from investments sold on the date of such
Shareholder s redemption request; (ii) redemption requests from such
Shareholder who has also notified the Trust of its intention to deposit
funds in its accounts on the date of said redemption request; or (iii)
the purchase of investments pending receipt of collected funds from
such Shareholder who has notified the Trust of its intention to deposit
funds in its accounts on the date of the purchase of the investments.
IN WITNESS WHEREOF, the undersigned, being the
Trustee of the Trust, has executed this Amended and Restated
Agreement of Trust as of the 11th day of December, 1996.
/s/ William T. Sullivan, Jr.
William T. Sullivan, Jr.
Trustee
(..continued)
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INVESTMENT ADVISORY AGREEMENT
BETWEEN
INVESTMENT SERVICES FOR EDUCATION ASSOCIATIONS
TRUST
AND
CADRE FINANCIAL SERVICES, INC.
Dated as of July 1, 1997
TABLE OF CONTENTS
Recitals 1
ARTICLE I
DELIVERY OF DOCUMENTS
Section 1.01 Documents Delivered 1
ARTICLE II
APPOINTMENT, DUTIES AND
COMPENSATION AS ADVISER
Section 2.01 Appointment as Adviser 2
Section 2.02 Services and Duties as Adviser 3
Section 2.03 Compensation as Adviser 3
ARTICLE III
LIMITATIONS OF LIABILITY
Section 3.01 Adviser s Liability Limitation 4
Section 3.02 Fund s Liability Limitation 4
ARTICLE IV
DURATION AND TERMINATION
Section 4.01 Term of Agreement 4
ARTICLE V
CONSULTATION AND RELIANCE
Section 5.01 Consultation with Counsel 6
Section 5.02 Reliance on Certificates 6
ARTICLE VI
MISCELLANEOUS
Section 6.01 Certain Relationships 6
Section 6.02 Certain Restrictions 7
Section 6.03 Third Parties 7
Section 6.04 Amendments 8
Section 6.05 Captions 8
Section 6.06 Severability 8
Section 6.07 Binding Effect 8
Section 6.08 Notices 9
Section 6.09 Entire Agreement 9
Section 6.10 Applicable Law 9
Section 6.11 Enforcement and Waiver 10
Section 6.12 Authorization 10
Section 6.13 Counterparts 10
Section 6.14 Books and Records 10
Section 6.15 Effectiveness
Execution 11
INVESTMENT SERVICES FOR EDUCATION ASSOCIATIONS
TRUST
INVESTMENT ADVISORY AGREEMENT
This Agreement, made as of the 1st day of July, 1997, by and
between Investment Services for Education Associations Trust, a
Delaware business trust (the Fund ), and Cadre Financial Services
Inc., a New York corporation ( Cadre or the Adviser ).
WHEREAS, The Fund desires to avail itself of the experience,
resources, advice and assistance of Cadre and to have Cadre
undertake the duties and responsibilities as investment adviser
hereinafter set forth, on behalf and subject to the supervision of the
Board of Trustees of the Fund, as provided herein; and
WHEREAS, Cadre is willing to undertake to render such investment
advisory services, subject to the supervision of the Board of Trustees,
on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and covenants hereinafter set forth and other good
and valuable consideration, the receipt of which is hereby
acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I. DELIVERY OF DOCUMENTS
Section 1.01. Documents Delivered. Except as herein otherwise
provided, the Fund has delivered, or will cause to be delivered, to
Cadre properly certified or authenticated copies of each of the
following documents and will deliver to it all future amendments and
supplements thereto, if any:
(a)Amended and Restated Agreement of Trust of the Fund dated as of
December 11, 1996, (such document, as presently in effect and as the
same may be amended from time to time, is herein called the
Declaration of Trust );
(b)By-laws of the Fund (such By-laws, as presently in effect and as
amended from time to time, are herein called the By-Laws );
(c)Certified resolutions of the Board of Trustees of the Fund
authorizing the appointment of Cadre as the Investment Adviser of the
Fund and approving the form of this Agreement;
(d)Prospectus of the Fund (such Prospectus in its present form and as
the same may be amended or supplemented from time to time, is
herein called the Prospectus );
(e)Certified copy of the Administration Agreement, dated as of July 1,
1997, between the Fund and Cadre Financial Services, Inc.; and
(f)A certificate of the Secretary of the Fund setting forth the names
and specimen signatures of the individuals authorized at the time of
delivery of such certificate to act on behalf of the Fund in connection
with matters arising hereunder.
ARTICLE II. APPOINTMENT, DUTIES AND
COMPENSATION AS ADVISER
Section 2.01. Appointment as Adviser. The Fund hereby appoints
Cadre as the Adviser of the Fund on the terms and for the period set
forth in this Agreement, and Cadre hereby accepts such appointment
and agrees to perform the services and duties set forth in Section 2.02
hereof for the compensation provided in Section 2.03 hereof.
Section 2.02. Services and Duties as Adviser.
(a)The Adviser agrees, as more fully set forth herein, to act as the
investment adviser to the Fund with respect to the investment of its
assets. Subject to the direction and control of the Board of Trustees
of the Fund, the Adviser: (i) shall provide a continuous investment
program for the Fund, including investment research and management
with respect to all securities, investments, instruments and cash
equivalents (collectively investment instruments ) in the Fund; (ii)
shall determine what investment instruments shall be purchased,
retained or sold by the Fund; and (iii) shall arrange for the purchase
and the sale of investment instruments held in the portfolio of the
Fund.
(b)In performing its duties hereunder, the Adviser shall act in
conformity with the Declaration of Trust, the By-Laws and the
Prospectus of the Fund and with the instructions, guidelines,
procedures and directions of the Board of Trustees and shall conform
to, and comply with, all applicable federal and state laws and
regulations.
Section 2.03. Compensation as Adviser. For the services to be
rendered and the duties to be assumed by the Adviser pursuant to this
Agreement, the Fund will pay to the Adviser, and the Adviser agrees
to accept, as full compensation therefor, an annual investment
advisory fee computed daily and payable monthly and computed at
annual rate of 15 basis points (0.15%) of the Fund s average daily net
assets.
ARTICLE III. LIMITATIONS OF LIABILITY
Section 3.01 Adviser s Liability Limitation. The Adviser shall not be
liable for any error in judgment or mistake of law or for any loss
suffered by the Fund in connection with the matters to which this
Agreement relates, except a loss resulting from a breach of fiduciary
duty with respect to the receipt of compensation for services or a loss
resulting from willful misfeasance, bad faith or gross negligence on its
part in the performance of its duties under this Agreement or for its
reckless disregard of its obligations and duties under this Agreement
or for its willful or negligent failure to take reasonable measures to
restrict investments of the fund property to those permitted by the
Fund investment policy, provided, however, that this Section 3.01
shall not limit the Adviser s liability to the Fund with respect to any
breaches by it of this Agreement.
Section 3.02. Fund s Liability Limitation. Reference is hereby made
to the Declaration of Trust which contains certain provisions limiting
the liability of the Board of Trustees, Shareholders, officers,
employees and agents of the Trust. The obligations of the Fund
created hereunder are not personally binding upon, nor shall resort be
had to the property of, any of the Board of Trustees, Shareholders,
officers, employees or agents of the Fund, and only that portion of the
Fund property necessary to satisfy the obligations of the Fund arising
hereunder shall be bound or affected by the operation of this
Agreement.
ARTICLE IV. DURATION AND TERMINATION
Section 4.01. Term of Agreement. Unless sooner terminated as
provided herein, this Agreement wil continue in effect until June 30,
1999. Thereafter, if not terminated, this Agreement shall continue in
effect for successive annual periods, provided such continuance is
specifically approved at least annually (a) by the vote of a majority of
those members of the Fund s Board of Trustees who are not interested
persons of any party to this Agreement, cast in person at a meeting
called for the purpose of voting on such approval, and (b) by the
Fund s Board of Trustees or by vote of a majority of the outstanding
voting securities of the Fund. Notwithstanding the foregoing, this
Agreement may be terminated at any time, without the payment of
any penalty, by the Fund (by vote of the Fund s Board of Trustees or
by vote of a majority of the outstanding voting securities of the Fund),
or by the Adviser, on 60 days written notice. This Agreement will
immediately terminate in the event of its assignment. (As used in this
Agreement, the terms majority of the outstanding voting securities,
interested persons and assignment will have the same meaning as
the meaning of such terms in the Investment Company Act of 1940).
ARTICLE V. CONSULTATION AND RELIANCE
Section 5.01. Consultation with Counsel. The Adviser may consult
with reputable and experienced legal counsel (who may be counsel to
the Fund) concerning any question that may arise with reference to its
duties under this Agreement, and the opinion of such counsel shall be
full and complete protection in respect of any action taken or omitted
by the Adviser in good faith and in accordance with such opinion
provided such action meets the standards in Section 3.01.
Section 5.02. Reliance on Certificates. The Adviser shall not be
liable and subject to Section 3.01 shall be fully protected in relying
upon any notice, instrument, direction or other communication that
the Adviser reasonably believes (based on the most recent certificate
of the Secretary of the Fund that has been received by the Adviser
pursuant to paragraph (f) of Section 1.01 hereof) to have been given
by an individual who is authorized to act on behalf of the Fund. The
Fund agrees that it will supply the Adviser with certificates of the type
described in paragraph (f) of Section 1.01 hereof from time to time as
necessary to keep the information contained therein current, unless an
employee or an affiliate of the Adviser is a trustee or an officer of the
Fund in which case such certificates shall not be required by this
Agreement.
ARTICLE VI. MISCELLANEOUS
Section 6.01. Certain Relationships. Nothing in this Agreement shall
prevent the Adviser or any officer, director or employee thereof from
acting as investment adviser or manager for any other person, firm,
corporation or entity and shall not in any way limit or restrict the
Adviser or any of its directors, officers, partners or employees or any
of its affiliates directors, officers, partners or employees from
buying, selling or trading any investment instruments for its or their
own accounts or the accounts of others (including without limitation
other Funds) for whom it or they may be acting; provided, however,
that the Adviser expressly represents that it will undertake no
activities which in its judgment, will materially adversely affect the
performance of its obligations to the Fund under this Agreement.
Directors, officers, partners, employees and agents of the Advisor or
of affiliated persons of the Adviser may serve as officers, employees
or agents of the Fund.
Section 6.02. Certain Restrictions.
(a) Anything in this Agreement to the contrary
notwithstanding, the Adviser shall refrain from any action which
would violate any law, rule or regulation of any governmental body or
agency having jurisdiction over the Fund or its Shareholders or which
would not be permitted by the Fund s Prospectus, Declaration of
Trust or By-Laws or by guidelines, procedures, or other directions of
the Fund s Board of Trustees.
(b) Without limiting the generality of the foregoing
paragraph, the Adviser shall not recommend, or arrange for, the
purchase by the Fund of any investment instrument which is not a
permitted purchase or the purchase or acquisition of which would
constitute a violation of the investment restrictions applicable to the
Fund set forth in the Prospectus.
Section 6.03. Third Parties. When dealing with third parties
on behalf of the Fund in connection with the execution of investment
transactions and other matters, the Adviser shall include such recitals
in written documents as may be reasonably requested by the Fund
pursuant to the provisions of the Prospectus and Declaration of Trust
regarding the limitation of liability of the Board of Trustees,
Shareholders, officers, employees and agents of the Fund to third
parties.
Section 6.04. Amendments. This Agreement shall not be
modified or amended without the consent of each party hereto, which
consent must be evidenced by an instrument in writing executed by
each party hereto, or by their respective successors or permitted
assigns.
Section 6.05. Captions. The captions in this Agreement are
included for convenience of reference only and shall in no way define
or limit any of the provisions hereof or otherwise affect their
construction or effect.
Section 6.06. Severability. If any provision of this
Agreement shall be held invalid under any applicable statute or
regulation or by a decision of a court of competent jurisdiction, such
invalidity shall not affect any other provision of this Agreement that
can be given effect without the invalid provision, and, to this end, the
provisions hereof are severable.
Section 6.07. Binding Effect. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and,
subject to Section 4.01, their respective successors and permitted
assigns.
Section 6.08. Notices. Notices or consents of any kind
required or permitted under this Agreement shall be in writing and
shall be deemed duly delivered if delivered in person or if mailed by
certified mail, return receipt requested or telegraph, postage prepaid
to the appropriate party as follows:
A. If to the Fund:
Dr. Don I. Tharpe
Association of School Business Officials International
11401 North Shore Drive,
Reston, VA 22090
with a copy to;
Michael P. Malloy, Esquire
Drinker Biddle & Reath LLP
Philadelphia National Bank Building
1345 Chestnut Street
Philadelphia, PA 19107-3496
B. If to the Adviser:
William M. Sullivan, Esq.
Cadre Financial Services, Inc.
905 Marconi Avenue
Ronkonkoma, NY 11779-7255
or at such other address or to the attention of such other individual as
shall be specified by the respective parties hereto by written notice
hereunder.
Section 6.09. Entire Agreement. This Agreement, and the
documents delivered pursuant hereto, constitute the entire agreement
between the parties hereto with respect to the subject matter hereof.
Section 6.10. Applicable Law. This Agreement shall be
deemed to have been executed in the State of Delaware and the
substantive laws of the State of Delaware shall govern the construction
of this Agreement and the rights and remedies of the respective
parties hereto.
Section 6.11. Enforcement and Waiver. Each party hereto
shall have the right at all times to enforce the provisions of this
Agreement in strict accordance with the terms hereof, notwithstanding
any conduct or custom on the part of such party in refraining from so
doing at any time or times. The failure of a party hereto at any time
or times to enforce its rights under such provisions, strictly in
accordance with the same, shall not be construed as having created a
custom in any way or manner contrary to specific provisions of this
Agreement or as having in any way or manner modified or waived the
same. All rights and remedies of the respective parties hereto are
cumulative and concurrent and the exercise of one right or remedy
shall not be deemed a waiver or release of any other right or remedy.
Section 6.12. Authorization. This Agreement has been duly
authorized, executed and delivered by the parties hereto and
constitutes a legal, valid and binding obligation of such parties,
enforceable in accordance with its terms. Each individual signatory
hereto represents and warrants that he is duly authorized to execute
this Agreement on behalf of his organization.
Section 6.13. Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed
to be an original, but all of which together shall constitute but one and
the same instrument.
Section 6.14. Books and Records. In compliance with the
requirements of Rule 31a-3 of the Rules under the Investment
Company Act of 1940, the Adviser hereby agrees that all records
which it maintains for the Fund are the property of the Fund and
further agrees to surrender promptly to the Fund any of such records
upon the Fund s request. The Adviser further agrees to preserve for
the periods prescribed by Rule 31a-2 the records required to be
maintained by Rule 31a-1 of the Rules.
Section 6.15. Effectiveness. This Agreement shall take
effect as of the date first above written.
IN WITNESS WHEREOF, the parties hereto have caused
this Investment Advisory Agreement to be executed by their officers
designated below as of the day and year first above written and
confirmed the day and year written below.
Investment Services for Education Associations Trust
by:
Cadre Financial Services, Inc.
by:
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