Exhibit d(2)
FORM OF
AMENDED AND RESTATED
MANAGEMENT AGREEMENT
TT INTERNATIONAL U.S.A. FEEDER TRUST
TT Europe Mutual Fund
AMENDED AND RESTATED MANAGEMENT AGREEMENT, amended and restated as of
__________ __, 2002, by and between TT International U.S.A. Feeder Trust, a
Massachusetts trust (the "Trust"), and TT International Investment Management
(the "Manager"), a partnership formed under the laws of England and regulated in
the conduct of investment business by the Financial Services Authority ("FSA").
W I T N E S S E T H:
WHEREAS, the Trust engages in business as an open-end investment
company and is registered as such under the Investment Company Act of 1940, as
amended (collectively with the rules and regulations promulgated thereunder and
any exemptive orders thereunder, the "1940 Act"),
WHEREAS, pursuant to that certain Management Agreement dated as of
February 6, 2001 (the "Original Agreement") between the Trust and the Manager,
the Trust engaged the Manager to provide certain management services for the
series of the Trust designated TT Europe Mutual (the "Fund"), and the Manager
agreed to provide such management services for the Fund on the terms and
conditions set forth therein, and
WHEREAS, the Trust and the Manager desire to amend and restate the
Original Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. Duties of the Manager. (a) The Manager shall act as the investment
manager for the Fund and as such shall furnish continuously an investment
program and shall determine from time to time what securities shall be
purchased, sold or exchanged and what portion of the assets of the Fund shall be
held uninvested, subject always to the restrictions of the Trust's Declaration
of Trust, dated as of May 26, 2000, and By-Laws, as each may be amended from
time to time (respectively, the "Declaration" and the "By-Laws"), the provisions
of the 1940 Act, and the then-current Registration Statement of the Trust with
respect to the Fund. The Manager shall also make recommendations as to the
manner in which voting rights, rights to consent to corporate action and any
other rights pertaining to the Fund's portfolio securities shall be exercised.
Should the Board of Trustees of the Trust at any time, however, make any
definite determination as to investment policy applicable to the Fund and notify
the Manager thereof in writing, the Manager shall be bound by such determination
for the period, if any, specified in such notice or until similarly notified
that such determination has been revoked. The Manager shall take, on behalf of
the Fund, all actions which it deems necessary to implement the investment
policies determined as provided above, and in particular to place all orders for
the purchase or sale of securities, options, and futures contracts (including
non-U.S. securities, options, and futures contracts) for the Fund's account with
the brokers or dealers selected by it, and to that end the Manager is authorized
as the agent of the Trust to give instructions to the custodian or any
subcustodian of the Fund as to deliveries of securities and payments of cash for
the account of the Fund. In making purchases or sales of securities or other
property for the account of the Fund, the Manager may deal with itself or with
the Trustees of the Trust or the Trust's underwriter or distributor, to the
extent such actions are permitted by the 1940 Act. In providing the services and
assuming the obligations set forth herein, the Manager may employ, at its own
expense, or may request that the Trust employ at the Fund's expense, one or more
subadvisers; provided that in each case the Manager shall supervise the
activities of each subadviser. Any agreement between the Manager and a
subadviser shall be subject to the renewal, termination and amendment provisions
applicable to this Agreement. Any agreement between the Trust on behalf of the
Fund and a subadviser may be terminated by the Manager at any time on not more
than 60 days' nor less than 30 days' written notice to the Trust and the
subadviser.
(b) The Manager is authorized, in its discretion, to select the
broker/dealers through which transactions will be effected on behalf of the Fund
and to establish the commissions or discounts to be paid for such transactions.
The Trust, on behalf of the Fund, acknowledges and agrees that in selecting
broker/dealers the Manager will consider a number of factors, including among
others (i) commission rates; (ii) financial strength and stability; (iii)
specialized knowledge concerning particular investment markets; (iv) experience
in effecting transactions in particular markets on a prompt and cost-effective
basis; (v) the value of investment research products and services that a broker
may lawfully provide to assist the Manager in the exercise of its investment
discretion; and (vi) ability to handle large volume transactions. The Trust, on
behalf of the Fund, further acknowledges that it is the Manager's practice to
negotiate with the broker/dealers that it employs on behalf of its clients
standing commission rates for transactions in particular markets. Accordingly,
transactions effected on behalf of the Fund will generally be effected on the
basis of these standing commission rates, and the Manager will not negotiate
commissions with broker/dealers on a separate basis for each transaction. As a
result of the factors noted in this paragraph, transactions effected by the
Manager on behalf of the Fund may not be effected at the lowest available
commission rates.
Transactions effected by the Manager on behalf of the Fund may generate
soft commission payments that will be applied by the Manager to obtain various
research products and services. The Trust, on behalf of the Fund, acknowledges
that the Manager may pay a broker who provides research products or services
commissions that are higher than the lowest available commissions that another
broker might have charged if the Manager determines in good faith that the
commissions are reasonable in relation to the value of the brokerage and
research products and services provided. The Trust, on behalf of the Fund
acknowledges and agrees that these research products and services may be used by
the Manager for the benefit of some or all of the accounts managed by the
Manager and not exclusively for the benefit of the Fund's account.
(c) The Trust, on behalf of the Fund, acknowledges that it is the
Manager's policy to exclude institutional accounts, such as the Fund's, from
allocations of stock in initial public offerings or other "hot issues," unless
the market capitalization of the issuer exceeds a minimum threshold determined
by the Manager from time to time and the Manager otherwise determines
participation to be appropriate. This policy is based on the Manager's judgment
that companies with smaller market capitalizations are not suitable for accounts
such as those of the Fund and that even larger initial public offerings may not
be suitable for the Fund. The Trust, on behalf of the Fund, acknowledges that
the Manager may allocate these investments to other accounts managed by the
Manager, which may include accounts in which the Manager and its principals have
investment or carried interests and acknowledges that as a result the Fund may
not participate in short-term gains based upon post-issue appreciation in the
value of "hot issues" even in cases where these opportunities may result, at
least in part, from trading activity by the Fund.
(d) The Manager has full authority to select and use counterparties
other than the Trust's custodian for the purpose of executing foreign exchange
transactions. The Trust hereby authorizes the Manager to enter into foreign
exchange agreements with such counterparties as agent, and may execute
transactions under the aforementioned agreements for, and on behalf of, the
Fund. Notwithstanding that the Manager has entered into these transactions as
agent, the Trust, on behalf of the Fund, remains principal to the transactions.
Transactions executed in accordance with the aforementioned agreements will be
subject to the terms and conditions of the International Foreign Exchange Master
Agreement.
(e) The Trust, on behalf of the Fund, acknowledges that the Manager
will deal with the Trust and the Fund as Intermediate Customers, pursuant to the
Financial Services Authority's rules, and agrees that the management services to
be provided hereunder will be provided on such basis.
2. Allocation of Charges and Expenses. The Manager shall furnish at its
own expense all necessary services, facilities and personnel in connection with
its responsibilities under Section 1 above. Except as provided in the foregoing
sentence, it is understood that the Trust will pay from the assets of the Fund
all of its own expenses allocable to the Fund including, without limitation,
organization costs of the Fund; compensation of Trustees who are not "interested
persons" of the Trust; governmental fees; interest charges; loan commitment
fees; taxes; membership dues in industry associations allocable to the Trust;
fees and expenses of independent auditors, legal counsel and any transfer agent,
distributor, shareholder servicing agent, registrar or dividend disbursing agent
of the Trust; expenses of issuing and redeeming shares of beneficial interest
and servicing shareholder accounts; expenses of preparing, typesetting, printing
and mailing prospectuses, statements of additional information, shareholder
reports, notices, proxy statements and reports to governmental officers and
commissions and to existing shareholders of the Fund; expenses connected with
the execution, recording and settlement of security, option, and futures
transactions; insurance premiums; fees and expenses of the custodian for all
services to the Fund, including safekeeping of funds, securities, options, and
futures and maintaining required books and accounts; expenses of calculating the
net asset value of the Fund (including but not limited to the fees of
independent pricing services); expenses of meetings of the Fund's shareholders;
expenses relating to the registration and qualification of shares of the Fund;
and such non-recurring or extraordinary expenses as may arise, including those
relating to actions, suits or proceedings to which the Trust on behalf of the
Fund may be a party and the legal obligation which the Trust may have to
indemnify its Trustees and officers with respect thereto.
3. Compensation of the Manager. For the services to be rendered and the
facilities to be provided by the Manager hereunder, the Trust shall pay to the
Manager from the assets of the Fund a management fee computed daily and paid
monthly at an annual rate equal to the lesser of (i) 1.50% of the Fund's average
daily net assets for the Fund's then-current fiscal year or (ii) the difference
between 1.50% of the Fund's average daily net assets for the Fund's then-current
fiscal year and the aggregate investment management fees allocated to the Fund
for the Fund's then-current fiscal year from the portfolio(s) in which it
invests of which the Manager is the manager. If the Manager provides services
hereunder for less than the whole of any period specified in this Section 3, the
compensation to the Manager shall be accordingly adjusted and prorated.
4. Covenants of the Manager. The Manager agrees that it will not deal
with itself, or with the Trustees of the Trust or the Trust's principal
underwriter or distributor, as principals in making purchases or sales of
securities, options, futures, or other property for the account of the Fund,
except as permitted by the 1940 Act, will not take a long or short position in
shares of beneficial interest of the Fund except as permitted by the
Declaration, and will comply with all other provisions of the Declaration and
By-Laws and the then-current Registration Statement applicable to the Fund
relative to the Manager and its partners and officers. The Manager shall notify
the Trust of any change in the partners of the Manager within a reasonable time
after such change.
5. Limitation of Liability of the Manager. The Manager shall not be
liable for any error of judgment or mistake of law or for any loss arising out
of any investment or for any act or omission in the execution of securities,
options, or futures transactions for the Fund, except for willful misfeasance,
bad faith or gross negligence in the performance of its duties, or by reason of
reckless disregard of its obligations and duties hereunder. As used in this
Section 5, the term "Manager" shall include partners, officers and employees of
the Manager as well as the Manager itself.
6. Activities of the Manager. The services of the Manager to the Fund
are not to be deemed to be exclusive, the Manager being free to render
investment advisory, administrative and/or other services to others. It is
understood that Trustees, officers, and shareholders of the Trust are or may be
or may become interested in the Manager, as partners, officers, employees, or
otherwise and that partners, officers and employees of the Manager are or may
become similarly interested in the Trust and that the Manager may be or may
become interested in the Trust as a shareholder or otherwise.
7. Duration, Termination and Amendments of this Agreement. This
Agreement shall become effective as of the day and year first above written,
shall govern the relations between the parties hereto thereafter and shall
remain in force until August 31, 2002 on which date it will terminate unless its
continuance after August 31, 2002 is "specifically approved at least annually"
(a) by the vote of a majority of the Trustees of the Trust who are not
"interested persons" of the Trust or of the Manager at a meeting specifically
called for the purpose of voting on such approval, and (b) by the Board of
Trustees of the Trust or by "vote of a majority of the outstanding voting
securities" of the Fund.
This Agreement may be terminated at any time without the payment of any
penalty by the Trustees or by the "vote of a majority of the outstanding voting
securities" of the Fund, or by the Manager, in each case on not more than 60
days' nor less than 30 days' written notice to the other party. This Agreement
shall automatically terminate in the event of its "assignment."
This Agreement may be amended only if such amendment is approved by the
"vote of a majority of the outstanding voting securities" of the Fund (except
for any such amendment as may be effected in the absence of such approval
without violating the 1940 Act).
The terms "specifically approved at least annually," "vote of a
majority of the outstanding voting securities," "assignment," "affiliated
person," and "interested persons," when used in this Agreement, shall have the
respective meanings specified in, and shall be construed in a manner consistent
with, the 1940 Act, subject, however, to such exemptions as may be granted by
the Securities and Exchange Commission under said Act.
Each party acknowledges and agrees that all obligations of the Trust
under this Agreement are binding only with respect to the Fund; that any
liability of the Trust under this Agreement, or in connection with the
transactions contemplated herein, shall be discharged only out of the assets of
the Fund; and that no other series of the Trust shall be liable with respect to
this Agreement or in connection with the transactions contemplated herein.
The undersigned officer of the Trust has executed this Agreement not
individually, but as an officer under the Declaration and the obligations of
this Agreement are not binding upon any of the Trustees, officers or
shareholders of the Trust individually.
8. Governing Law. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts. Each of the parties consents to the personal jurisdiction of the
courts of Massachusetts for purposes of any proceedings relating to this
Agreement and waives any objection to the convenience of such courts.
9. Use of Name. The Trust hereby acknowledges that any and all rights
in or to the names "TT" and "TT International" which exist on the date of this
Agreement or which may arise hereafter are, and under any and all circumstances
shall continue to be, the sole property of the Manager; that the Manager may
assign any or all of such rights to another party or parties without the consent
of the Trust; and that the Manager may permit other parties, including other
investment companies, to use the words "TT" and "TT International" in their
names. If the Manager, or its assignee, as the case may be, ceases to serve as
the adviser and administrator of the Trust, the Trust hereby agrees to take
promptly any and all actions which are necessary or desirable to change its name
so as to delete the words "TT" and "TT International."
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
TT INTERNATIONAL U.S.A. TT INTERNATIONAL
FEEDER TRUST INVESTMENT MANAGEMENT
On behalf of TT Europe Mutual Fund
By: By:
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Title: Title:
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