Exhibit a
TT INTERNATIONAL U.S.A. MASTER TRUST
DECLARATION OF TRUST
Dated as of May 26, 2000
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TABLE OF CONTENTS
PAGE
ARTICLE I--The Trust....................................................... 1
Section 1.1 Name..................................................... 1
Section 1.2 Definitions ............................................. 1
ARTICLE II--Trustees ...................................................... 4
Section 2.1 Number and Qualification................................. 4
Section 2.2 Term and Election........................................ 4
Section 2.3 Resignation, Removal and Retirement...................... 5
Section 2.4 Vacancies................................................ 6
Section 2.5 Meetings................................................. 6
Section 2.6 Officers; Chairman of the Board.......................... 7
Section 2.7 By-Laws.................................................. 7
ARTICLE III--Powers of Trustees ........................................... 7
Section 3.1 General.................................................. 7
Section 3.2 Investments.............................................. 8
Section 3.3 Legal Title.............................................. 9
Section 3.4 Sale and Increases of Interests.......................... 9
Section 3.5 Decreases and Redemptions of Interests................... 10
Section 3.6 Borrow Money............................................. 10
Section 3.7 Delegation; Committees................................... 10
Section 3.8 Collection and Payment................................... 10
Section 3.9 Expenses................................................. 10
Section 3.10 Miscellaneous Powers.................................... 11
Section 3.11 Further Powers.......................................... 12
ARTICLE IV--Investment Advisory, Administration and Placement
Agent Arrangements; Custodian.................................. 12
Section 4.1 Investment Advisory and Other Arrangements............... 12
Section 4.2 Parties to Contract...................................... 12
Section 4.3 Custodian................................................ 13
Section 4.4 1940 Act Governance...................................... 13
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ARTICLE V--Liability of Holders; Limitations of Liability of Trustees,
Officers, etc................................................... 14
Section 5.1 Liability of Holders; Indemnification.................... 14
Section 5.2 Limitations of Liability of Trustees, Officers,
Employees, Agents, Independent Contractors
to Third Parties......................................... 14
Section 5.3 Limitations of Liability of Trustees, Officers,
Employees, Agents, Independent Contractors
to Trust, Holders, etc................................... 14
Section 5.4 Mandatory Indemnification................................ 15
Section 5.5 No Bond Required of Trustees............................. 16
Section 5.6 No Duty of Investigation; Notice in Trust
Instruments, etc......................................... 16
Section 5.7 Reliance on Experts, etc................................. 17
Section 5.8 No Repeal or Modification................................ 17
ARTICLE VI--Interests...................................................... 17
Section 6.1 Interests................................................ 17
Section 6.2 Establishment and Designation of Series.................. 18
Section 6.3 Non-Transferability...................................... 19
Section 6.4 Register of Interests.................................... 19
ARTICLE VII--Increases, Decreases And Redemptions of Interests............. 19
ARTICLE VIII--Determination of Book Capital Account Balances,
and Distributions............................................ 20
Section 8.1 Book Capital Account Balances........................... 20
Section 8.2 Allocations and Distributions to Holders................ 20
Section 8.3 Power to Modify Foregoing Procedures.................... 21
ARTICLE IX--Holders........................................................ 21
Section 9.1 Rights of Holders....................................... 21
Section 9.2 Meetings of Holders..................................... 21
Section 9.3 Notice of Meetings...................................... 22
Section 9.4 Record Date for Meetings, Distributions, etc............ 22
Section 9.5 Proxies, etc............................................ 23
Section 9.6 Reports................................................. 23
Section 9.7 Inspection of Records................................... 23
Section 9.8 Holder Action by Written Consent........................ 23
Section 9.9 Notices................................................. 24
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ARTICLE X--Duration; Termination; Dissolution; Amendment;
Mergers; Etc.................................................... 24
Section 10.1 Duration............................................... 24
Section 10.2 Dissolution............................................ 24
Section 10.3 Termination............................................ 25
Section 10.4 Amendment Procedure.................................... 26
Section 10.5 Merger, Consolidation and Sale of Assets............... 27
Section 10.6 Incorporation.......................................... 27
ARTICLE XI--Miscellaneous................................................. 28
Section 11.1 Certificate of Designation;
Agent for Service of Process........................... 28
Section 11.2 Tax Status; Tax Matters Partner........................ 28
Section 11.3 Governing Law.......................................... 29
Section 11.4 Counterparts........................................... 29
Section 11.5 Reliance by Third Parties.............................. 29
Section 11.6 Provisions in Conflict with Law or Regulations......... 29
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DECLARATION OF TRUST
OF
TT INTERNATIONAL U.S.A. MASTER TRUST
This DECLARATION OF TRUST of TT International U.S.A. Master Trust is made
as of the 26th day of May, 2000 by the parties signatory hereto, as Trustees
(as defined in Section 1.2 hereof).
W I T N E S S E T H:
WHEREAS, the Trustees desire to form a master trust fund or "Trust" (as
defined in Section 1.2 hereof) under the laws of the Commonwealth of
Massachusetts consisting of one or more subtrusts or "Series" (as defined in
Section 1.2 hereof) for the investment and reinvestment of assets contributed
thereto; and
WHEREAS, it is proposed that the trust assets be composed of money and
other property contributed to the Series, such assets to be held and managed in
trust for the benefit of the holders of beneficial interests in such Series;
NOW, THEREFORE, the Trustees hereby declare that they will hold in trust
all money and other property contributed to the Trust and will manage and
dispose of the same for the benefit of such holders of beneficial interests and
subject to the provisions hereof, to wit:
ARTICLE I
The Trust
1.1. Name. The name of the Trust shall be "TT International U.S.A. Master
Trust" and so far as may be practicable the Trustees shall conduct the Trust's
activities, execute all documents and sue or be sued under that name, which
name (and the term "Trust" wherever hereinafter used) shall refer to the
Trustees as Trustees, and not individually, and shall not refer to the
officers, employees, agents or independent contractors of the Trust or its
holders of beneficial interests.
1.2. Definitions. As used in this Declaration, the following terms shall
have the following meanings:
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"Administrator" shall mean any party furnishing services to one or
more Series pursuant to any administration contract described in Section 4.1
hereof.
"Book Capital Account" shall mean, for any Holder (as hereinafter
defined) at any time, the Book Capital Account of the Holder at such time with
respect to the Holder's beneficial interest in the Trust Property (as
hereinafter defined) of any Series, determined in accordance with the method
established by the Trustees pursuant to Section 8.1 hereof. The Trust shall
maintain separate records of Book Capital Accounts for each such Series.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended from time to time (or any corresponding provision or provisions of
succeeding law).
"Commission" shall mean the United States Securities and Exchange
Commission.
"Declaration" shall mean this Declaration of Trust as amended from
time to time. References in this Declaration to "Declaration", "hereof",
"herein" and "hereunder" shall be deemed to refer to this Declaration rather
than the article or section in which any such word appears.
"Fiscal Year" shall mean an annual period which ends on December 31
of each year or on such other day determined by the Trustees, as is permitted
or required by the Code.
"Governing Jurisdiction" shall mean the Commonwealth of
Massachusetts.
"Holder" shall mean the record holder of any Interest.
"Institutional Investor(s)" shall mean, when used with respect to
each Series of the Trust, any regulated investment company, segregated asset
account, foreign investment company, common trust fund, group trust or other
investment arrangement, whether organized within or without the United States
of America, other than an individual, S corporation or partnership or a grantor
trust beneficially owned by any individual, S corporation or partnership,
unless, in the case of a partnership or a grantor trust beneficially owned by a
partnership, the interests in the partnership are held by entities that
otherwise meet the definition of Institutional Investor.
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"Interested Person" shall have the meaning given it in the 1940 Act
(as hereinafter defined).
"Interest" shall mean the beneficial interest of a Holder in the
Trust Property of any Series, including all rights, powers and privileges
accorded to Holders by this Declaration, which interest may be expressed as a
percentage, determined by calculating for a particular Series, at such times
and on such basis as the Trustees shall from time to time determine, the ratio
of each Holder's Book Capital Account balance to the total of all Holders' Book
Capital Account balances. Reference herein to a specified percentage of, or
fraction of, Interests, means Holders whose combined Book Capital Account
balances represent such specified percentage or fraction of the combined Book
Capital Account balances of all, or a specified group of, Holders.
"Investment Adviser" shall mean any party furnishing services to one
or more Series of the Trust pursuant to any investment advisory contract
described in Section 4.1 hereof.
"Majority Interests Vote" shall mean the vote, at a meeting of
Holders of one or more Series as the context may require, of (A) 67% or more of
the Interests present or represented at such meeting, if Holders of more than
50% of all Interests in such one or more Series are present or represented by
proxy, or (B) more than 50% of all Interests in such one or more Series,
whichever is less.
"1940 Act" shall mean the United States Investment Company Act of
1940, as amended from time to time, and the rules and regulations thereunder.
"Person" shall mean and include individuals, corporations,
partnerships, trusts, associations, joint ventures and other entities, whether
or not legal entities, and governments and agencies and political subdivisions
thereof.
"Redemption" shall mean the complete withdrawal of an Interest of a
Holder the result of which is to reduce the Book Capital Account balance of
that Holder to zero, and the term "redeem" shall mean to effect a Redemption.
"Series" shall mean the subtrusts of the Trust as the same are
established and designated pursuant to Article VI hereof, each of which shall
be a separate subtrust.
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"Trust" shall mean the master trust fund established hereby and shall
include each Series hereof.
"Trust Property" shall mean as of any particular time any and all
assets or other property, real or personal, tangible or intangible, which at
such time is owned or held by or for the account of any Series or for the
account of the Trustees, each component of which shall be allocated and belong
to a specific Series to the exclusion of all other Series.
"Trustees" shall mean each signatory to this Declaration, so long as
such signatory shall continue in office in accordance with the terms hereof,
and all other individuals who at the time in question have been duly elected or
appointed and have qualified as Trustees in accordance with the provisions
hereof and are then in office, and reference in this Declaration to a Trustee
or Trustees shall refer to such individual or individuals in their capacity as
Trustees hereunder.
ARTICLE II
Trustees
2.1. Number and Qualification. The number of Trustees shall be fixed from
time to time by action of the Trustees taken as provided in Section 2.5 hereof;
provided, however, that the number of Trustees so fixed shall in no event be
less than three. Any vacancy created by an increase in the number of Trustees
may be filled by the appointment of an individual having the qualifications
described in this Section 2.1 made by action of the Trustees taken as provided
in Section 2.5 hereof. Any such appointment shall not become effective,
however, until the individual named in the written instrument of appointment
shall have accepted in writing such appointment and agreed in writing to be
bound by the terms of this Declaration. No reduction in the number of Trustees
shall have the effect of removing any Trustee from office. Whenever a vacancy
occurs, until such vacancy is filled as provided in Section 2.4 hereof, the
Trustees continuing in office, regardless of their number, shall have all the
powers granted to the Trustees and shall discharge all the duties imposed upon
the Trustees by this Declaration. A Trustee shall be an individual at least 21
years of age who is not under legal disability.
2.2. Term and Election. A Trustee may be elected either by the Holders or,
as provided in this Declaration and subject to the limitations of the 1940 Act,
by the Trustees. Subject to the provisions of Section 16(a) of the 1940 Act, a
Trustee shall hold office during the lifetime of this Trust and until its
termination as hereinafter provided or until the election and qualification of
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his or her successor; except that (a) any Trustee may resign his trust (without
need for prior or subsequent accounting) by an instrument in writing signed by
him and delivered to the other Trustees, which shall take effect upon such
delivery or upon such later date as is specified therein; (b) any Trustee may
be removed with cause, at any time by written instrument signed by at least
two-thirds of the remaining Trustees, specifying the date when such removal
shall become effective; (c) any Trustee who has attained a mandatory retirement
age established pursuant to any written policy adopted from time to time by at
least two-thirds of the Trustees shall, automatically and without action of
such Trustees or the remaining Trustees, be deemed to have retired in
accordance with the terms of such policy, effective as of the date determined
in accordance with such policy; (d) any Trustee who has become incapacitated by
illness or injury, as determined by a majority of the other Trustees, may be
retired by written instrument signed by a majority of the other Trustees,
specifying the date of his retirement; and (e) a Trustee may be removed at any
meeting of Holders by a vote of two-thirds of the outstanding Interests of each
Series. For purposes of the foregoing clause (b), the term "cause" shall
include, but not be limited to, failure to comply with such written policies as
may from time to time be adopted by at least two-thirds of the Trustees with
respect to the conduct of Trustees and attendance at meetings. Upon the
resignation, retirement or removal of a Trustee, or his otherwise ceasing to be
a Trustee, he shall execute and deliver such documents as the remaining
Trustees shall require for the purpose of conveying to the Trust or the
remaining Trustees any Trust Property held in the name of the resigning,
retiring or removed Trustee. Upon the incapacity or death of any Trustee, his
legal representative shall execute and deliver on his behalf such documents as
the remaining Trustees shall require as provided in the preceding sentence.
2.3. Resignation, Removal and Retirement. In case of the incapacity,
death, resignation, retirement, removal or inability of any of the Trustees, or
in case a vacancy shall, by reason of an increase in number, or for any other
reason, exist, the remaining Trustees shall fill such vacancy by appointing
such other individual as they in their discretion shall see fit. Such
appointment shall be evidenced by a written instrument signed by a majority of
the Trustees in office. Any such appointment shall not become effective,
however, until the person named in the written instrument of appointment shall
have accepted in writing such appointment and agreed in writing to be bound by
the terms of the Declaration. Within twelve months of such appointment, the
Trustees shall cause notice of such appointment to be mailed to each Holder at
its address as recorded on the books of the Trustees. An appointment of a
Trustee may be made by the Trustees then in office and notice thereof mailed to
Holders as aforesaid in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in number of Trustees effective at a later
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date, provided that said appointment shall become effective only at or after
the effective date of said retirement, resignation or increase in number of
Trustees. The power of appointment is subject to the provisions of Section
16(a) of the 1940 Act.
2.4. Vacancies. The death, incapacity, resignation, retirement, removal or
incapacity of the Trustees, or any one of them, shall not operate to annul the
Trust or to revoke any existing agency created pursuant to the terms of this
Declaration. Whenever a vacancy in the number of Trustees shall occur, until
such vacancy is filled as provided in Section 2.3, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by the
Declaration. A written instrument certifying the existence of such vacancy
signed by a majority of the Trustees shall be conclusive evidence of the
existence of such vacancy.
2.5. Meetings. Meetings of the Trustees shall be held from time to time
upon the call of the Chairman or by any Trustee. Regular meetings of the
Trustees may be held without call or notice at a time and place fixed by the
By-Laws or by resolution of the Trustees. Notice of any other meeting shall be
mailed or otherwise given not less than 24 hours before the meeting but may be
waived in writing by any Trustee either before or after such meeting. The
attendance of a Trustee at a meeting shall constitute a waiver of notice of
such meeting except in the situation in which a Trustee attends a meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting was not lawfully called or convened. The Trustees may
act with or without a meeting. A quorum for all meetings of the Trustees shall
be a majority of the Trustees. Unless provided otherwise in this Declaration,
any action of the Trustees may be taken at a meeting by vote of a majority of
the Trustees present (a quorum being present) or without a meeting by written
consent of a majority of the Trustees.
Any committee of the Trustees, including an executive committee, if any,
may act with or without a meeting. A quorum for all meetings of any such
committee shall be a majority of the members thereof. Unless provided otherwise
in this Declaration, any action of any such committee may be taken at a meeting
by vote of a majority of the members present (a quorum being present) or
without a meeting by written consent of a majority of the members.
Any notice, waiver or written consent hereunder may be provided and
delivered to the Trust or a Trustee by facsimile or other similar electronic
mechanism.
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With respect to actions of the Trustees and any committee of the Trustees,
Trustees who are Interested Persons of the Trust or otherwise interested in any
action to be taken may be counted for quorum purposes under this Section 2.5
and shall be entitled to vote to the extent permitted by the 1940 Act.
All or any one or more Trustees may participate in a meeting of the
Trustees or any committee thereof by means of a conference telephone or similar
communications equipment by means of which all individuals participating in the
meeting can hear each other and participation in a meeting by means of such
communications equipment shall constitute presence in person at such meeting.
2.6. Officers; Chairman of the Board. The Trustees shall, from time to
time, elect a President, a Secretary and a Treasurer. The Trustees may elect or
appoint, from time to time, a Chairman of the Board who shall preside at all
meetings of the Trustees and carry out such other duties as the Trustees may
designate. The Trustees may elect or appoint or authorize the President to
appoint such other officers, agents or independent contractors with such powers
as the Trustees may deem to be advisable. The Chairman, if any, shall be and
each officer may, but need not, be a Trustee.
2.7. By-Laws. The Trustees may adopt and, from time to time, amend or
repeal By-Laws for the conduct of the business of the Trust.
ARTICLE III
Powers of Trustees
3.1. General. The Trustees shall have exclusive and absolute control over
the Trust Property and over the business of the Trust and each Series to the
same extent as if the Trustees were the sole owners of the Trust Property and
such business in their own right, but with such powers of delegation as may be
permitted by this Declaration. The Trustees may perform such acts as in their
sole discretion they deem proper for conducting the business of the Trust and
any Series. The enumeration of or failure to mention any specific power herein
shall not be construed as limiting such exclusive and absolute control. The
powers of the Trustees may be exercised without order of or resort to any
court.
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
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Trust. The Trustees shall have full authority and power to make any and all
investments which they, in their uncontrolled discretion, shall deem proper to
accomplish the purposes of this Trust.
3.2. Investments. The Trustees shall have the power with respect to the
Trust and each Series to:
(a) conduct, operate and carry on the business of an investment
company;
(b) subscribe for, invest in, reinvest in, purchase or otherwise
acquire, hold, pledge, sell, assign, transfer, exchange, distribute or
otherwise deal in or dispose of United States and foreign currencies and
related instruments including forward contracts, and securities, including
common and preferred stock, warrants, bonds, debentures, time notes and all
other evidences of indebtedness, negotiable or non-negotiable instruments,
obligations, certificates of deposit or indebtedness, commercial paper,
repurchase agreements, reverse repurchase agreements, convertible securities,
forward contracts, options, futures contracts, and other securities, including,
without limitation, those issued, guaranteed or sponsored by any state,
territory or possession of the United States and the District of Columbia and
their political subdivisions, agencies and instrumentalities, or by the United
States Government, any foreign government, or any agency, instrumentality or
political subdivision of the United States Government or any foreign
government, or any international instrumentality, or by any bank, savings
institution, corporation or other business entity organized under the laws of
the United States or any state or under any foreign laws; and to exercise any
and all rights, powers and privileges of ownership or interest in respect of
any and all such investments of any kind and description, including, without
limitation, the right to consent and otherwise act with respect thereto, with
power to designate one or more Persons to exercise any of such rights, powers
and privileges in respect of any of such investments; and the Trustees shall be
deemed to have the foregoing powers with respect to any additional instruments
in which the Trustees may determine to invest;
(c) definitively interpret the investment objectives, policies and
limitations of any Series.
Notwithstanding any other provision of this Declaration to the contrary,
the Trustees shall have the power in their discretion without any requirement
of approval by investors to either invest all or a portion of the Trust
Property of each Series of the Trust, or sell all or a portion of such Trust
Property and invest the proceeds of such sales, in one or more investment
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companies to the extent not prohibited by the 1940 Act and exemptive orders
granted under such Act.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust, nor shall the Trustees be limited
by any law limiting the investments which may be made by fiduciaries.
3.3. Legal Title. Legal title to all Trust Property shall be vested in the
Trustees as joint tenants except that the Trustees shall have the power to
cause legal title to any Trust Property to be held by or in the name of one or
more of the Trustees, or in the name of the Trust or any Series, or in the name
or nominee name of any other Person on behalf of the Trust or any Series, on
such terms as the Trustees may determine.
The right, title and interest of the Trustees in the Trust Property shall
vest automatically in each individual who may hereafter become a Trustee upon
his due election and qualification. Upon the resignation, removal or death of a
Trustee, such resigning, removed or deceased Trustee shall automatically cease
to have any right, title or interest in any Trust Property, and the right,
title and interest of such resigning, removed or deceased Trustee in the Trust
Property shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered.
3.4. Sale and Increases of Interests. The Trustees, in their discretion,
may, from time to time, without a vote of the Holders, permit any Institutional
Investor to purchase an Interest in a Series, or increase such Interest, for
such type of consideration, including cash or property, at such time or times
(including, without limitation, each business day), and on such terms as the
Trustees may deem best, and may in such manner acquire other assets (including
the acquisition of assets subject to, and in connection with the assumption of,
liabilities) and businesses. Individuals, S corporations, partnerships and
grantor trusts that are beneficially owned by any individual, S corporation or
partnership may not purchase Interests, unless, in the case of a partnership or
a grantor trust beneficially owned by a partnership, the interests in the
partnership are held by entities that otherwise meet the definition of
Institutional Investor. The Trustees, in their discretion, may refuse to sell
an Interest in a Series to any person without any cause or reason therefor. A
Holder which has redeemed its Interest in a Series may not be permitted to
purchase an Interest in such Series until the later of 60 calendar days after
the date of such Redemption or the first day of the Fiscal Year next succeeding
the Fiscal Year during which such Redemption occurred.
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3.5 Decreases and Redemptions of Interests. Subject to Article VII hereof,
the Trustees, in their discretion, may, from time to time, without a vote of
the Holders, permit a Holder to redeem its Interest in a Series, or decrease
such Interest, for either cash or property, at such time or times (including,
without limitation, each business day), and on such terms as the Trustees may
deem best.
3.6. Borrow Money. The Trustees shall have power on behalf of any Series
to borrow money or otherwise obtain credit and to secure the same by
mortgaging, pledging or otherwise subjecting as security the assets belonging
to such Series, as appropriate, including the lending of portfolio securities,
and to endorse, guarantee, or undertake the performance of any obligation,
contract or engagement of any other Person.
3.7. Delegation; Committees. The Trustees shall have power, consistent
with their continuing exclusive and absolute control over the Trust Property
and over the business of the Trust and any Series, to delegate from time to
time to such of their number or to officers, employees, agents or independent
contractors of the Trust or any Series the doing of such things and the
execution of such instruments in either the name of the Trust or any Series or
the names of the Trustees or otherwise as the Trustees may deem expedient.
3.8. Collection and Payment. The Trustees shall have power to collect all
property due to the Trust; and to pay all claims, including taxes, against the
Trust Property on behalf of any Series; to prosecute, defend, compromise or
abandon any claims relating to the Trust or the Trust Property on behalf of any
Series; to foreclose any security interest securing any obligation, by virtue
of which any property is owed to the Trust; and to enter into releases,
agreements and other instruments.
3.9. Expenses. The Trustees shall have power to incur and pay any expenses
from the Trust Property which in the opinion of the Trustees are necessary or
incidental to carry out any of the purposes of this Declaration, and to pay
reasonable compensation from the Trust Property to themselves as Trustees.
Permitted expenses of the Trust include, but are not limited to: interest
charges, taxes, brokerage fees and commissions; expenses of sales, increases,
decreases or redemptions of Interests; certain insurance premiums; applicable
fees, interest charges and expenses of third parties, including the Trust's
investment advisers, managers, administrators, placement agents, custodians
transfer agents and fund accountants; fees of pricing, interest, dividend,
credit and other reporting services; costs of membership in trade associations;
telecommunications expenses; costs of forming the Trust and its Series and
maintaining its and their existence; costs of preparing and printing the
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registration statements and Holder reports of the Trust and each Series and
delivering them to Holders; expenses of meetings of Holders; costs of
maintaining books and accounts; costs of reproduction, stationery and supplies;
fees and expenses of the Trustees; compensation of the Trust's officers and
employees and costs of other personnel performing services for the Trust or any
Series; costs of Trustee meetings; Commission registration fees and related
expenses; state or foreign securities laws registration fees and related
expenses; and for such non-recurring items as may arise, including litigation
to which the Trust or a Series (or a Trustee or officer of the Trust acting as
such) is a party, and for all losses and liabilities by them incurred in
administering the Trust. The Trustees shall have a lien on the assets belonging
to the appropriate Series, or in the case of an expense allocable to more than
one Series, on the assets of each such Series, prior to any rights or interests
of the Holders thereto, for the reimbursement to them of such expenses,
disbursements, losses and liabilities. The Trustees shall fix the compensation
of all officers, employees and Trustees. The Trustees may pay themselves such
compensation for special services, including legal and brokerage services, as
they in good faith may deem reasonable, and reimbursement for expenses
reasonably incurred by themselves on behalf of the Trust or any Series.
3.10. Miscellaneous Powers. The Trustees shall have power to: (a) employ
or contract with such Persons as the Trustees may deem appropriate for the
transaction of the business of the Trust or any Series and terminate such
employees or contractual relationships as they consider appropriate; (b) enter
into joint ventures, partnerships and any other combinations or associations;
(c) purchase, and pay for out of Trust Property insurance policies insuring the
Investment Adviser, Administrator, placement agent, Holders, Trustees,
officers, employees, agents or independent contractors of the Trust against all
claims arising by reason of holding any such position or by reason of any
action taken or omitted by any such Person in such capacity, whether or not the
Trust would have the power to indemnify such Person against such liability; (d)
establish pension, profit-sharing and other retirement, incentive and benefit
plans for the Trustees, officers, employees or agents of the Trust or any
Series; (e) prosecute, defend and settle lawsuits in the name of the Trust or
any Series and pay settlements and judgments out of the Trust Property; (f) to
the extent permitted by law, indemnify any Person with whom the Trust has
dealings, including the Investment Adviser, Administrator, placement agent,
Holders, Trustees, officers, employees, agents or independent contractors of
the Trust, to such extent as the Trustees shall determine; (g) guarantee
indebtedness or contractual obligations of others; (h) determine and change the
Fiscal Year of the Trust or any Series and the method by which its accounts
shall be kept; and (i) adopt a seal for the Trust or any Series, but the
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absence of such a seal shall not impair the validity of any instrument executed
on behalf of the Trust or such Series.
3.11. Further Powers. The Trustees shall have power to conduct the
business of the Trust or any Series and carry on its operations in any and all
of its branches and maintain offices, whether within or without the
Commonwealth of Massachusetts, in any and all states of the United States of
America, in the District of Columbia, and in any and all commonwealths,
territories, dependencies, colonies, possessions, agencies or instrumentalities
of the United States of America and of foreign governments, and to do all such
other things and execute all such instruments as they deem necessary, proper,
appropriate or desirable in order to promote the interests of the Trust or any
Series although such things are not herein specifically mentioned. Any
determination as to what is in the interests of the Trust or any Series which
is made by the Trustees in good faith shall be conclusive. In construing the
provisions of this Declaration, the presumption shall be in favor of a grant of
power to the Trustees. The Trustees shall not be required to obtain any court
order in order to deal with Trust Property.
ARTICLE IV
Investment Advisory, Administration
and Placement Agent Arrangements; Custodian
4.1. Investment Advisory and Other Arrangements. The Trustees may in their
discretion, from time to time, enter into investment advisory contracts,
administration contracts, placement agent agreements or other service
agreements whereby the other party to such contract or agreement shall
undertake to furnish with respect to one or more particular Series such
investment advisory, administration, placement agent and/or other services as
the Trustees shall, from time to time, consider appropriate or desirable and
all upon such terms and conditions as the Trustees may in their sole discretion
determine. Notwithstanding any provision of this Declaration, the Trustees may
authorize any Investment Adviser (subject to such general or specific
instructions as the Trustees may, from time to time, adopt) to employ one or
more subadvisers and to effect purchases, sales, loans or exchanges of Trust
Property on behalf of any Series or may authorize any officer, employee or
Trustee to effect such purchases, sales, loans or exchanges pursuant to
recommendations of any such Investment Adviser (all without any further action
by the Trustees).
4.2. Parties to Contract. Any contract of the character described in
Section 4.1 or Section 4.3 hereof or in the By-Laws of the Trust may be entered
into with any corporation, firm, trust or association, although one or more of
<PAGE>
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 voidable by reason of the existence of any
such relationship, nor shall any individual holding such relationship be liable
merely by reason of such relationship for any loss or expense to the Trust or
any Series under or by reason of any such contract or accountable for any
profit realized directly or indirectly therefrom, provided that the contract
when entered into was reasonable and fair and not inconsistent with the
provisions of this Article IV or the By-Laws. The same Person may be the other
party to one or more contracts entered into pursuant to Section 4.1 or Section
4.3 hereof or the By-Laws, and any individual may be financially interested or
otherwise affiliated with Persons who are parties to any or all of the
contracts mentioned in this Section 4.2 or in the By-Laws.
4.3 Custodian. The Trustees shall at all times place and maintain the
securities and similar investments of the Trust on behalf of each Series in
custody meeting the requirements of Section 17(f) of the 1940 Act and the rules
thereunder. The Trustees, on behalf of the Trust or any Series, may enter into
an agreement with a custodian on terms and conditions acceptable to the
Trustees, providing for the custodian, among other things, (a) to hold the
securities owned by the Trust on behalf of any Series and deliver the same upon
written order or oral order confirmed in writing, (b) to receive and receipt
for any moneys due to the Trust on behalf of any Series and deposit the same in
its own banking department or elsewhere, (c) to disburse such funds upon orders
or vouchers, (d) to keep the books and accounts of the Trust on behalf of any
Series and furnish clerical and accounting services, (d) to compute the net
income of the Trust on behalf of any Series and the net asset value of Shares,
and (f) to employ one or more subcustodians.
4.4. 1940 Act Governance. Any contract referred to in Section 4.1 hereof
shall be consistent with and subject to the applicable requirements of Section
15 of the 1940 Act and the rules and orders thereunder with respect to its
continuance in effect, its termination, and the method of authorization and
approval of such contract or renewal. No amendment to a contract referred to in
Section 4.1 hereof shall be effective unless assented to in a manner consistent
with the requirements of Section 15 of the 1940 Act and the rules and orders
thereunder (except for any such amendment as may be effected in the absence of
such assent without violating the 1940 Act).
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ARTICLE V
Liability of Holders; Limitations of
Liability of Trustees, Officers, etc.
5.1. Liability of Holders; Indemnification. (a) Notwithstanding any other
provision of this Declaration, each Holder of an Interest in a Series of the
Trust shall not be subject to any personal liability whatsoever to any Person
in connection with the Trust Property or the acts, obligations or affairs of
the Trust with respect to that Series; and if any such Holder is made a party
to any suit or proceeding to enforce any such liability, such Holder shall not,
on account thereof, be held to any personal liability. To the extent assets of
that Series are available in the Trust, the Trust shall indemnify and hold each
Holder of an Interest in that Series harmless from and against any claim or
liability to which such Holder may become subject by reason of being or having
been a Holder of an Interest in that Series, and shall reimburse such Holder
for all legal and other expenses reasonably incurred by such Holder in
connection with any such claim or liability.
(b) The rights accruing to a Holder under this Section 5.1 shall not
exclude any other right to which such Holder may be lawfully entitled, nor
shall anything contained herein restrict the right of the Trust to indemnify or
reimburse a Holder in any appropriate situation even though not specifically
provided herein. The liabilities of a particular Series and the right to
indemnification granted hereunder to Holders of Interests in such Series shall
not be enforceable against any other Series or Holders of Interests in any
other Series.
5.2. Limitations of Liability of Trustees, Officers, Employees, Agents,
Independent Contractors to Third Parties. No Trustee, officer, employee, agent
or independent contractor (except in the case of an agent or independent
contractor to the extent expressly provided by written contract) of the Trust
or any Series shall be subject to any personal liability whatsoever to any
Person, other than the Trust or the Holders, in connection with Trust Property
or the affairs of the Trust; and all such Persons shall look solely to the
Trust Property for satisfaction of claims of any nature against a Trustee,
officer, employee, agent or independent contractor (except in the case of an
agent or independent contractor to the extent expressly provided by written
contract) of the Trust arising in connection with the affairs of the Trust.
5.3. Limitations of Liability of Trustees, Officers or Employees to Trust,
Holders, etc. No Trustee, officer or employee of the Trust shall be liable to
<PAGE>
the Trust or the Holders for any action or failure to act (including, without
limitation, the failure to compel in any way any former or acting Trustee to
redress any breach of trust) except for such Person's own bad faith, willful
misfeasance, gross negligence or reckless disregard of such Person's duties.
5.4. Mandatory Indemnification. The Trust shall indemnify, to the fullest
extent permitted by law (including the 1940 Act), each Trustee, officer or
employee of the Trust (including any Person who serves at the Trust's request
as a director, officer or trustee of another organization in which the Trust
has any interest as a shareholder, creditor or otherwise) against all
liabilities and expenses (including amounts paid in satisfaction of judgments,
in compromise, as fines and penalties, and as counsel fees) reasonably incurred
by such Person in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, in which such Person may
be involved or with which such Person may be threatened, while in office or
thereafter, by reason of such Person being or having been such a Trustee,
officer, employee, agent or independent contractor, except with respect to any
matter as to which such Person shall have been finally adjudicated to have
acted in bad faith, willful misfeasance, gross negligence or reckless disregard
of such Person's duties, such liabilities and expenses being liabilities only
of the Series out of which such claim for indemnification arises; provided,
however, that as to any matter disposed of by a compromise payment by such
Person, pursuant to a consent decree or otherwise, no indemnification either
for such payment or for any other expenses shall be provided unless there has
been a determination that such Person did not engage in willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Person's office (i) by the court or other body approving the
settlement or other disposition; or (ii) based upon a review of readily
available facts (as opposed to a full trial-type inquiry), by written opinion
from independent legal counsel approved by the Trustees; or (iii) by a majority
of the Trustees who are neither Interested Persons of the Trust nor parties to
the matter, based upon a review of readily available facts (as opposed to a
full trial-type inquiry). The rights accruing to any Person under these
provisions shall not exclude any other right to which such Person may be
lawfully entitled; provided that no Person may satisfy any right of indemnity
or reimbursement granted in this Section 5.4 or in Section 5.2 hereof or to
which such Person may be otherwise entitled except out of the Trust Property.
The rights of indemnification provided herein may be insured against by
policies maintained by the Trust. The Trustees may make advance payments in
connection with indemnification under this Section 5.4, provided that the
indemnified Person shall have given a written undertaking to reimburse the
Trust in the event it is subsequently determined that such Person is not
entitled to such indemnification, and provided further that either (i) such
<PAGE>
Person shall have provided appropriate security for such undertaking, or (ii)
the Trust is insured against losses arising out of any such advance payments,
or (iii) either a majority of the Trustees who are neither Interested Persons
of the Trust nor parties to the matter, or independent legal counsel in a
written opinion, shall have determined, based upon a review of readily
available facts (as opposed to a trial-type inquiry or full investigation),
that there is reason to believe that such Person will not be disqualified from
indemnification under this Section 5.4.
5.5. No Bond Required of Trustees. No Trustee shall, as such, be obligated
to give any bond or surety or other security for the performance of any of such
Trustee's duties hereunder.
5.6. No Duty of Investigation; Notice in Trust Instruments, etc. No
purchaser, lender or other Person dealing with any Trustee, officer, employee,
agent or independent contractor of the Trust or any Series shall be bound to
make any inquiry concerning the validity of any transaction purporting to be
made by such Trustee, officer, employee, agent or independent contractor or be
liable for the application of money or property paid, loaned or delivered to or
on the order of such Trustee, officer, employee, agent or independent
contractor. Every obligation, contract, instrument, certificate or other
interest or undertaking of the Trust or any Series, and every other act or
thing whatsoever executed in connection with the Trust or any Series shall be
conclusively taken to have been executed or done by the executors thereof only
in their capacity as Trustees, officers, employees, agents or independent
contractors of the Trust or any Series. Every written obligation, contract,
instrument, certificate or other interest or undertaking of the Trust or any
Series made or sold by any Trustee, officer or employee of the Trust or any
Series, in such capacity, shall contain an appropriate recital to the effect
that the Trustee, officer or employee of the Trust or any Series shall not
personally be bound by or liable thereunder, nor shall resort be had to their
private property for the satisfaction of any obligation or claim thereunder,
and appropriate references shall be made therein to the Declaration, and may
contain any further recital which they may deem appropriate, but the omission
of such recital shall not operate to impose personal liability on any Trustee,
officer or employee of the Trust or any Series. Subject to the provisions of
the 1940 Act, the Trust may maintain insurance for the protection of the Trust
Property, the Holders, and the Trustees, officers or employees of the Trust and
any Series in such amount as the Trustees shall deem adequate to cover possible
tort liability, and such other insurance as the Trustees in their sole judgment
shall deem advisable.
<PAGE>
5.7. Reliance on Experts, etc. Each Trustee, officer or employee of the
Trust and any Series shall, in the performance of such Person's duties, be
fully and completely justified and protected with regard to any act or any
failure to act resulting from reliance in good faith upon the books of account
or other records of the Trust or any Series (whether or not the Trust or any
Series would have the power to indemnify such Persons against such liability),
upon an opinion of counsel, or upon reports made to the Trust or any Series by
any of its officers or employees or by any Investment Adviser or Administrator,
accountant, appraiser or other experts or consultants selected with reasonable
care by the Trustees, officers or employees of the Trust or any Series,
regardless of whether such counsel or expert may also be a Trustee.
5.8. No Repeal or Modification. Any repeal or modification of this Article
V by the Holders, or adoption or modification of any other provision of this
Declaration or the ByLaws inconsistent with this Article V, shall be
prospective only, to the extent that such repeal or modification would, if
applied retrospectively, adversely affect any limitation on the liability of
any Person or indemnification available to any indemnified Person with respect
to any act or omission which occurred prior to such repeal, modification or
adoption.
ARTICLE VI
Interests
6.1. Interests. The beneficial interest in the Trust Property shall
consist of non-transferable Interests. Interests may be sold by the Trust only
to Institutional Investors, as may be approved by the Trustees, for cash or
other consideration acceptable to the Trustees, subject to the requirements of
the 1940 Act. The Interests shall be personal property giving only the rights
in this Declaration specifically set forth. The value of an Interest shall be
equal to the Book Capital Account balance of the Holder of the Interest.
The Trustees shall have authority, from time to time, to establish Series,
each of which shall be a separate subtrust and the Interests in which shall be
separate and distinct from the Interests in any other Series. The Series shall
include, without limitation, those Series specifically established and
designated pursuant to Section 6.2 hereof, and such other Series as the
Trustees may deem necessary or desirable. The Trustees shall have exclusive
power without the requirement of Holder approval to establish and designate
such separate and distinct Series, and, subject to the provisions of this
Declaration and the 1940 Act, to fix and determine the rights of Holders of
Interests in such Series, including with respect to the price, terms and manner
<PAGE>
of purchase and redemption, dividends and other distributions, rights on
liquidation, sinking or purchase fund provisions, conversion rights and
conditions under which the Holders of the several Series shall have separate
voting rights or no voting rights.
6.2. Establishment and Designation of Series. The establishment and
designation of any Series shall be effective upon the execution by the
Secretary or an Assistant Secretary of the Trust, pursuant to authorization by
a majority of the Trustees, of an instrument setting forth such establishment
and designation and the relative rights and preferences of the Interests in
such Series, or as otherwise provided in such instrument. At any time that
there are no Interests outstanding of any particular Series previously
established and designated, the Trustees may by resolution adopted by a
majority of their number, and evidenced by an instrument executed by the
Secretary or an Assistant Secretary of the Trust, abolish that Series and the
establishment and designation thereof. Each instrument referred to in this
paragraph shall have the status of an amendment to this Declaration of Trust.
Without limiting the authority of the Trustees set forth above to
establish and designate further Series, the Trustees hereby establish and
designate the Series set forth on Schedule A hereto. The Interests in each of
these Series and any Interests in any further Series that may from time to time
be established and designated by the Trustees shall (unless the Trustees
otherwise determine with respect to some further Series at the time of
establishing and designating the same) have the following relative rights and
preferences:
(a) Assets Belonging to Series. All consideration received by the
Trust for the issue or sale of Interests in 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 by the Trustees in a separate trust for the benefit of the
Holders of Interests in that Series and shall irrevocably belong to that Series
for all purposes, and shall be so recorded upon the books of account of the
Trust. Such consideration, assets, 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, are herein referred to as "assets
belonging to" that Series. No Series shall have any right to or interest in the
assets belonging to any other Series, and no Holder shall have any right or
<PAGE>
interest with respect to the assets belonging to any Series in which it does
not hold an Interest.
(b) Liabilities Belonging to Series. The assets belonging to each
particular Series shall be charged with the liabilities in respect of that
Series and all expenses, costs, charges and reserves attributable to that
Series. The liabilities, expenses, costs, charges and reserves so charged to a
Series are herein referred to as "liabilities belonging to" that Series. No
Series shall be liable for or charged with the liabilities belonging to any
other Series, and no Holder shall be subject to any liabilities belonging to
any Series in which it does not hold an Interest.
(c) Voting. On each matter submitted to a vote of the Holders, each
Holder shall be entitled to a vote proportionate to its Interest as recorded on
the books of the Trust. Each Series shall vote as a separate class except as to
voting for Trustees, as otherwise required by the 1940 Act, or if determined by
the Trustees to be a matter which affects all Series. As to any matter which
does not affect the interest of all Series, only the Holders in the one or more
affected Series shall be entitled to vote. On each matter submitted to a vote
of the Holders, a Holder may apportion its vote with respect to a proposal in
the same proportion as its own shareholders voted with respect to that
proposal.
6.3. NonTransferability. A Holder may not transfer its Interest.
6.4. Register of Interests. A register shall be kept under the direction
of the Trustees which shall contain the name, address and Book Capital Account
balance of each Holder in each Series. Such register shall be conclusive as to
the identity of the Holders. No Holder shall be entitled to receive payment of
any distribution, nor to have notice given to it as herein provided, until it
has given its address to such officer or agent of the Trust as is keeping such
register for entry thereon.
ARTICLE VII
Increases, Decreases And Redemptions of Interests
Subject to applicable law, to the provisions of this Declaration and to
such restrictions as may from time to time be adopted by the Trustees, each
Holder may vary its Interest in any Series at any time by increasing (through a
capital contribution) or decreasing (through a capital withdrawal) or by a
Redemption of its Interest. An increase in the Interest of a Holder in a Series
shall be reflected as an increase in the Book Capital Account balance of that
Holder in that Series and a decrease in the Interest of a Holder in a Series or
<PAGE>
the Redemption of the Interest of that Holder shall be reflected as a decrease
in the Book Capital Account balance of that Holder in that Series. The Trust
shall, upon appropriate and adequate notice from any Holder, increase, decrease
or redeem such Holder's Interest for an amount determined by the application of
a formula adopted for such purpose by resolution of the Trustees; provided that
(a) the amount received by the Holder upon any such decrease or Redemption
shall not exceed the decrease in the Holder's Book Capital Account balance
effected by such decrease or Redemption of its Interest, and (b) if so
authorized by the Trustees, the Trust may, at any time and from time to time,
charge fees for effecting any such decrease or Redemption, at such rates as the
Trustees may establish, and may, at any time and from time to time, suspend
such right of decrease or Redemption. The procedures for effecting decreases or
Redemptions shall be as determined by the Trustees from time to time.
ARTICLE VIII
Determination of Book Capital Account
Balances and Distributions
8.1. Book Capital Account Balances. The Book Capital Account balance of
Holders with respect to a particular Series shall be determined on such days
and at such time or times as the Trustees may determine. The Trustees shall
adopt resolutions setting forth the method of determining the Book Capital
Account balance of each Holder. The power and duty to make calculations
pursuant to such resolutions may be delegated by the Trustees to the Investment
Adviser or Administrator, custodian, or such other Person as the Trustees may
determine. Upon the Redemption of an Interest, the Holder of that Interest
shall be entitled to receive the balance of its Book Capital Account. A Holder
may not transfer its Book Capital Account balance.
8.2. Allocations and Distributions to Holders. The Trustees shall, in
compliance with the Code, the 1940 Act and generally accepted accounting
principles, establish the procedures by which the Trust shall make with respect
to each Series (i) the allocation of unrealized gains and losses, taxable
income and tax loss, and profit and loss, or any item or items thereof, to each
Holder, (ii) the payment of distributions, if any, to Holders, and (iii) upon
liquidation, the final distribution of items of taxable income and expense.
Such procedures shall be set forth in writing and be furnished to the Trust's
accountants. The Trustees may amend the procedures adopted pursuant to this
Section 8.2 from time to time. The Trustees may retain from the net profits of
each Series such amount as they may deem necessary to pay the liabilities and
expenses of that Series.
<PAGE>
8.3. Power to Modify Foregoing Procedures. Notwithstanding any of the
foregoing provisions of this Article VIII, the Trustees may prescribe, in their
absolute discretion, such other bases and times for determining the net income
and net assets of the Trust and of each Series, the allocation of income of the
Trust and of each Series, the Book Capital Account balance of each Holder, or
the payment of distributions to the Holders as they may deem necessary or
desirable to enable the Trust or a Series to comply with any provision of the
1940 Act or any order of exemption issued by the Commission or with the Code.
ARTICLE IX
Holders
9.1. Rights of Holders. The ownership of the Trust Property and the right
to conduct any business described herein are vested exclusively in the
Trustees, and the Holders shall have no right or title therein other than the
beneficial interest conferred by their Interests and they shall have no power
or right to call for any partition or division of any Trust Property.
The Trust shall be entitled to treat a Holder of record as the holder in
fact and shall not be bound to recognize any equitable or other claim of
interest in such Holder's Interest on the part of any other entity except as
may be otherwise expressly provided by law.
In addition, the Holders shall have power to vote only with respect to (a)
the election of Trustees as provided in Article II, Section 2.2; (b) the
removal of Trustees as provided in Article II, Section 2.2; (c) any investment
advisory contract as provided in Article IV, Section 4.1; (d) any dissolution
of a Series as provided in Article X, Section 10.2; (e) the amendment of this
Declaration to the extent and as provided in Article X, Section 10.4; (f) any
merger, consolidation or sale of assets as provided in Article X, Section 10.5;
and (g) such additional matters relating to the Trust as may be required or
authorized by law, by this Declaration or the By-Laws or any registration
statement of the Trust filed with the Commission, or as the Trustees may
consider desirable.
9.2. Meetings of Holders. Meetings of Holders may be called at any time by
a majority of the Trustees and shall be called by any Trustee upon written
request of Holders holding, in the aggregate, not less than 10% of the
Interests in one or more Series (if the meeting relates solely to such Series),
or not less than 10% of the Interests in the Trust (if the meeting relates to
the Trust and not solely to one or more particular Series), such request
specifying the purpose or purposes for which such meeting is to be called. Any
<PAGE>
such meeting shall be held within or without the Commonwealth of Massachusetts
and within or without the United States of America on such day and at such time
as the Trustees shall designate. Holders of at least onethird of the Interests
in one or more Series (if the meeting relates solely to such one or more
Series) or Holders of at least one-third of the Interests in the Trust (if the
meeting relates to the Trust and not solely to one or more particular Series),
present in person or by proxy, shall constitute a quorum for the transaction of
any business, except as may otherwise be required by the 1940 Act, other
applicable law, this Declaration or the ByLaws. If a quorum is present at a
meeting, an affirmative vote of the Holders present, in person or by proxy,
holding more than 50% of the total Interests of the Holders present in a Series
or the Trust, as applicable, either in person or by proxy, at such meeting
constitutes the action of the Holders in such Series or the Trust, as
applicable, unless a greater number of affirmative votes is required by the
1940 Act, other applicable law, this Declaration or the ByLaws, and except that
a plurality of the total Interests of the Holders present shall elect a
Trustee. All or any one or more Holders may participate in a meeting of Holders
by means of a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other and
participation in a meeting by means of such communications equipment shall
constitute presence in person at such meeting.
9.3. Notice of Meetings. Notice of each meeting of Holders, stating the
time, place and purposes of the meeting, shall be given by the Trustees by mail
to each Holder of the Series or the Trust, as the case may be, at its
registered address, mailed at least 10 days and not more than 60 days before
the meeting. Notice of any meeting may be waived in writing by any Holder
either before or after such meeting. The attendance of a Holder at a meeting
shall constitute a waiver of notice of such meeting except in the situation in
which a Holder attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting was not lawfully
called or convened. At any meeting, any business properly before the meeting
may be considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
9.4. Record Date for Meetings, Distributions, etc. For the purpose of
determining the Holders who are entitled to notice of and to vote at any
meeting, or to participate in any distribution, or for the purpose of any other
action, the Trustees may from time to time fix a date, not more than 90 days
prior to the date of any meeting of Holders or the payment of any distribution
or the taking of any other action, as the case may be, as a record date for the
<PAGE>
determination of the Persons to be treated as Holders of the Series or the
Trust, as the case may be, for such purpose.
9.5. Proxies, etc. At any meeting of Holders, any Holder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Secretary, or with such other
officer or agent of the Trust as the Secretary may direct, for verification
prior to the time at which such vote is to be taken. A proxy may be revoked by
a Holder at any time before it has been exercised by placing on file with the
Secretary, or with such other officer or agent of the Trust as the Secretary
may direct, a later dated proxy or written revocation. Pursuant to a resolution
of a majority of the Trustees, proxies may be solicited in the name of the
Trust or of one or more Trustees or of one or more officers of the Trust. Only
Holders on the record date shall be entitled to vote. Each such Holder shall be
entitled to a vote proportionate to its Interest in the Series or the Trust, as
the case may be. When an Interest is held jointly by several Persons, any one
of them may vote at any meeting in person or by proxy in respect of such
Interest, but if more than one of them is present at such meeting in person or
by proxy, and such joint owners or their proxies so present disagree as to any
vote to be cast, such vote shall not be received in respect of such Interest. A
proxy purporting to be executed by or on behalf of a Holder, including proxies
received via telecopy, shall be deemed valid unless challenged at or prior to
its exercise, and the burden of proving invalidity shall rest on the
challenger.
9.6. Reports. As to each Series, the Trustees shall cause to be prepared
and furnished to each Holder thereof, at least annually as of the end of each
Fiscal Year, a report of operations containing a balance sheet and a statement
of income of such Series prepared in conformity with generally accepted
accounting principles and an opinion of an independent public accountant on
such financial statements. The Trustees shall, in addition, with respect to
each Series furnish to each Holder of such Series at least semiannually interim
reports of operations containing an unaudited balance sheet as of the end of
such period and an unaudited statement of income for the period from the
beginning of the then-current Fiscal Year to the end of such period.
9.7. Inspection of Records. The records of the Trust shall be open to
inspection by Holders during normal business hours for any purpose not harmful
to the Trust.
9.8. Holder Action by Written Consent. Any action which may be taken on
behalf of the Trust or any Series by Holders and which has been approved by
vote at a meeting or by written consent of two-thirds of the Trustees then in
<PAGE>
office may be taken without a meeting if Holders holding more than 50% of all
Interests entitled to vote (or such larger proportion thereof as shall be
required by any express provision of this Declaration or of applicable law)
consent to the action in writing and the written consents are filed with the
records of the meetings of Holders. Any action which may be taken on behalf of
the Trust or any Series by Holders and which has not been so approved by
Trustees may be taken without a meeting if Holders holding 100% of all
Interests entitled to vote consent to the action in writing and the written
consents are filed with the records of the meetings of Holders. Such consents
shall be treated for all purposes as a vote taken at a meeting of Holders. Each
such written consent shall be executed by or on behalf of the Holder delivering
such consent and shall bear the date of such execution. No such written consent
shall be effective to take the action referred to therein unless, within one
year of the earliest dated consent, written consents executed by a sufficient
number of Holders to take such action are filed with the records of the
meetings of Holders.
9.9. Notices. Any and all communications, including any and all notices to
which any Holder may be entitled, shall be deemed duly served or given if
mailed, postage prepaid, addressed to a Holder at its last known address as
recorded on the register of the Trust or if delivered to a Holder by courier or
by facsimile or other similar electronic mechanism.
ARTICLE X
Duration; Termination; Dissolution;
Amendment; Mergers; Etc.
10.1. Duration. Subject to possible dissolution or termination in
accordance with the provisions of Section 10.2 and Section 10.3 hereof,
respectively, the Trust created hereby shall continue until the expiration of
20 years after the death of the last survivor of the initial Trustees named
herein and any other partner of TT International Investment Management on the
date hereof.
10.2. Dissolution. Any Series shall be dissolved (i) by the affirmative
vote of the Holders of not less than two-thirds of the Interests in the Series
at any meeting of the Holders, or (ii) by the Trustees by written notice of
dissolution to the Holders of the Interests in the Series.
<PAGE>
10.3. Termination.
(a) Upon an event of dissolution of the Trust or a Series, unless the
Trust or Series is continued in accordance with the proviso to Section 10.2
above, the Trust or Series, as applicable, shall be terminated in accordance
with the following provisions:
(i) the Trust or Series, as applicable, shall carry on no
business except for the purpose of winding up its affairs;
(ii) the Trustees shall proceed to wind up the affairs of the
Trust or Series, as applicable, and all of the powers of the Trustees
under this Declaration shall continue until the affairs of the Trust
or Series have been wound up, including the power to fulfill or
discharge the contracts of the Trust or Series, collect the assets of
the Trust of Series, sell, convey, assign, exchange or otherwise
dispose of all or any part of the Trust Property affected to one or
more Persons at public or private sale for consideration which may
consist in whole or in part of cash, securities or other property of
any kind, discharge or pay the liabilities of the Trust or Series,
and do all other acts appropriate to liquidate the business of the
Trust or Series; provided that any sale, conveyance, assignment,
exchange or other disposition of all or substantially all the Trust
Property or substantially all of the assets belonging to a particular
Series, other than for cash, shall require approval of the principal
terms of the transaction and the nature and amount of the
consideration by the vote of Holders holding more than 50% of the
total Interests in the Trust or Series, as applicable; and
(iii) after paying or adequately providing for the payment of all
liabilities of the Trust or of the Series being terminated, and upon
receipt of such releases, indemnities and refunding agreements as
they deem necessary for their protection, the Trustees shall
distribute the remaining Trust Property of the Trust or Series, as
applicable, in cash or in kind or partly each, among the Holders
according to their respective rights as set forth in the procedures
established pursuant to Section 8.2 hereof.
(b) Upon termination of the Trust or Series and distribution to the
Holders as herein provided, a majority of the Trustees shall execute and file
with the records of the Trust an instrument in writing setting forth the fact
of such termination and distribution. Upon termination of the Trust, the
<PAGE>
Trustees shall thereupon be discharged from all further liabilities and duties
hereunder, and the rights and interests of all Holders shall thereupon cease.
10.4. Amendment Procedure.
(a) The Trustees may, without any vote of Holders, amend or
otherwise supplement this Declaration by an instrument in writing executed by a
majority of the Trustees, provided that Holders shall have the right to vote on
any amendment (a) required to be approved by Holders by law or by the Trust's
registration statement filed with the Commission, or (b) submitted to them by
the Trustees. Any amendment submitted to Holders which the Trustees determine
would affect the Holders of certain but not all Series shall be authorized by
vote of the Holders of such Series affected and no vote shall be required of
Holders of a Series not affected. Without limiting the authority of the
Trustees to amend or otherwise supplement this Declaration as above provided,
the Trustees may, without any vote of Holders, notwithstanding any other
provision of this Declaration, amend this Declaration by instrument in writing
executed by a majority of the Trustees to change the Governing Jurisdiction or
to permit the filing of this Declaration or any other instrument or
instruments, including, without limitation, any certificate of trust, permitted
or required to be filed pursuant to the laws of the new Governing Jurisdiction,
and in conjunction with any such amendment to make any and all such further
changes or modifications to this Declaration as the Trustees deem necessary or
appropriate; no amendment effected by the Trustees pursuant to this sentence,
nor any other action taken or authorized by the Trustees in conjunction
thereof, notwithstanding that the same might otherwise be deemed to constitute
a merger or consolidation of the Trust or a sale, conveyance or transfer of
assets by the Trust, shall be subject to the provisions of Section 10.5 or
Section 10.6 hereof. The Trust shall give notice to each Holder at least 5 days
prior to the effectiveness of any amendment or supplement to this Declaration
adopted by the Trustees pursuant to this paragraph (a) without any vote of
Holders.
(b) No amendment may be made under Section 10.4(a) hereof which
would change any rights with respect to any Interest by reducing the amount
payable thereon upon liquidation of the Trust or any Series or by diminishing
or eliminating any voting rights pertaining thereto, except with the vote or
consent of Holders of twothirds of all Interests which would be so affected by
such amendment.
(c) No amendment may be made to Section 10.4(a) hereof except by a
Majority Interests Vote of Interests in the Series affected by such action, or
by an instrument in writing without a meeting, consented to by Holders of not
<PAGE>
less than a majority of the Interests in the Series affected by such action. No
amendment may be made to Section 10.4(b) hereof except by the vote or consent
of Holders of twothirds of Interests in the Series affected by such amendment.
(d) A certification in recordable form executed by a majority of the
Trustees setting forth an amendment and reciting that it was duly adopted by
the Holders or by the Trustees as aforesaid or a copy of the Declaration, as
amended, in recordable form, and executed by a majority of the Trustees, shall
be conclusive evidence of such amendment when filed with the records of the
Trust.
Notwithstanding any other provision hereof, until such time as Interests
in a particular Series are first sold, this Declaration may be terminated or
amended in any respect as to that Series and as to any Series in which
Interests are not then outstanding, by the affirmative vote of a majority of
the Trustees at any meeting of Trustees or by an instrument executed by a
majority of the Trustees.
10.5. Merger, Consolidation and Sale of Assets. The Trust or any Series
may merge or consolidate with any other corporation, association, trust or
other organization or may sell, lease or exchange all or substantially all of
the Trust Property, or assets belonging to such Series, as applicable,
including good will, upon such terms and conditions and for such consideration
when and as authorized at any meeting of Holders called for such purpose by
Majority Interests Vote of Interests in the Series affected by such action, or
by an instrument in writing without a meeting, consented to by Holders of not
less than a majority of the Interests in the Series affected by such action,
and any such merger, consolidation, sale, lease or exchange shall be deemed for
all purposes to have been accomplished under and pursuant to the law of the
Commonwealth of Massachusetts, provided however that no such vote shall be
required where by reorganization, purchase of assets or otherwise, the Trust or
any affected Series is the surviving entity.
10.6. Incorporation. Upon a Majority Interests Vote, the Trustees may
cause to be organized or assist in organizing a corporation or corporations
under the law of any jurisdiction or a trust, partnership, association or other
organization to take over the Trust Property or to carry on any business in
which the Trust directly or indirectly has any interest, and to sell, convey
and transfer the Trust Property to any such corporation, trust, partnership,
association or other organization in exchange for the equity interests thereof
or otherwise, and to lend money to, subscribe for the equity interests of, and
enter into any contract with any such corporation, trust, partnership,
<PAGE>
association or other organization, or any corporation, trust, partnership,
association or other organization in which the Trust holds or is about to
acquire equity interests. The Trustees may also cause a merger or consolidation
between the Trust or any successor thereto and any such corporation, trust,
partnership, association or other organization if and to the extent permitted
by law. Nothing contained herein shall be construed as requiring approval of
the Holders for the Trustees to organize or assist in organizing one or more
corporations, trusts, partnerships, associations or other organizations and
selling, conveying or transferring a portion of the Trust Property to one or
more of such organizations or entities.
ARTICLE XI
Miscellaneous
Section 11.1. Certificate of Designation; Agent for Service of Process. If
required by Massachusetts law, the Trust shall file, with the Secretary of
State of the Commonwealth of Massachusetts, a certificate, in the name of the
Trust and executed by an officer of the Trust, designating the Secretary of
State of the Commonwealth of Massachusetts as an agent upon whom process in any
action or proceeding against the Trust or any Series may be served.
Section 11.2. Tax Status; Tax Matters Partner. It is intended that the
Trust (or, if multiple Series are established, each Series) be treated as a
partnership for federal income tax and Massachusetts tax purposes. The Trustees
shall have the power to take all actions and to execute all forms and other
documents that they determine, in their sole discretion, to be necessary to
achieve such treatment, and the Trustees shall severally have the delegable
authority on behalf of the Trust (or, as applicable, a Series) to sign any and
all tax forms for that purpose. The Trustees shall annually designate for the
Trust (or, if multiple Series are established, for each Series) a "Tax Matters
Partner" under Section 6231(a)(7) of the Code, and for this purpose the
Trustees shall have the right to allow an entity or person to purchase units in
the Trust (or Series) to enable such entity or person to serve as Tax Matters
Partner for the Trust (or Series), provided any Tax Matters Partner so
designated shall continue to hold such office and all related authorities until
a successor Tax Matters Partner is designated. The Tax Matters Partner shall be
entitled to take such actions on behalf of the Trust (or Series), in any and
all proceedings with the Internal Revenue Service, as the Tax Matters Partner
determines to be necessary, convenient or advisable. The Tax Matters Partner
shall be entitled to be paid by the Trust a reasonable fee for services
rendered in connection with any tax proceeding, to be reimbursed by the Trust
for all out-of-pocket costs and expenses incurred in connection with such a
<PAGE>
proceeding, and to be indemnified by the Trust (solely out of Trust assets)
with respect to any action brought against the Tax Matters Partner in
connection with the settlement of such a proceeding.
Section 11.3. Governing Law. The rights of all parties under this
Declaration and the validity and construction of every provision hereof shall
be subject to and construed according to the laws of the Governing
Jurisdiction, and reference shall be specifically made to the trust law of the
Governing Jurisdiction as to the construction of matters not specifically
covered herein or as to which any ambiguity exists.
Section 11.4. Counterparts. This Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
Section 11.5. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust, appears to be a Trustee
hereunder, certifying to: (i) the number or identity of Trustees or
Shareholders, (ii) the due authorization of the execution of any instrument or
writing, (iii) the form of any vote passed at a meeting of Trustees or
Shareholders, (iv) the fact that the number of Trustees or Shareholders present
at any meeting or executing any written instrument satisfies the requirements
of this Declaration, (v) the form of any By-Laws adopted by or the identity of
any officers elected by the Trustees, or (vi) the existence of any fact or
facts which in any manner relates to the affairs of the Trust, shall be
conclusive evidence as to the matters so certified in favor of any Person
dealing with the Trustees and their successors.
Section 11.6. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration are severable, and if the Trustees
shall determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Declaration; provided however, that such determination shall not affect any of
the remaining provisions of this Declaration or render invalid or improper any
action taken or omitted prior to such determination.
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
<PAGE>
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of the
Declaration in any jurisdiction.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Declaration of
Trust of TT International U.S.A. Master Trust as of the day and year first
above written.
Michael Bullock David J.S. Burnett
------------------------------- ----------------------------------
Michael Bullock David J.S. Burnett
5 Martin Lane 5 Martin Lane
London, England EC4R ODP London, England EC4R ODP
Alexander S.M. Carswell
-------------------------------
Alexander S.M. Carswell
5 Martin Lane
London, England EC4R ODP
<PAGE>
Schedule A
TT EAFE Portfolio
<PAGE>
TT INTERNATIONAL U.S.A. MASTER TRUST
AMENDMENT TO
DECLARATION OF TRUST
The undersigned, constituting all of the Trustees of TT International
U.S.A. Master Trust (the "Trust"), a trust organized under the laws of the
Commonwealth of Massachusetts, pursuant to a Declaration of Trust dated as of
May 26, 2000 (the "Declaration"), do hereby amend Schedule A of the Declaration
to read as follows:
TT EAFE Portfolio
TT Europe Portfolio
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
18th day of August, 2000.
Michael Bullock David J.S. Burnett
------------------------------- ---------------------------------
Michael Bullock David J.S. Burnett
As trustee and not individually As trustee and not individually
Alexander S.M. Carswell
-------------------------------
Alexander S.M. Carswell
As trustee and not individually
