EX-99.(H)(II) 9 b36800btex99-hii.txt TRANSFER AGENCY SERVICES AGREEMENT 1 Exhibit 99.(h)(ii) TRANSFER AGENCY AND SERVICE AGREEMENT AGREEMENT made as of the 22nd day of September, 2000, by and between streetTRACKS(SM) SERIES TRUST, a Massachusetts business trust, having its principal office and place of business at 225 Franklin Street, Boston, Massachusetts 02110 (the "Trust"), STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company having its principal office and place of business at 225 Franklin Street, Boston, Massachusetts 02110 (the "Bank") and STATE STREET BANK AND TRUST COMPANY (the "Adviser"). WHEREAS, the Trust is registered as an open-end management investment company under the Investment Company Act of 1940, as amended (the "1940 Act"); and WHEREAS, the Trust is authorized to issue shares in separate series, with each such series representing interests in a separate portfolio of securities and other assets; WHEREAS, the Trust intends to initially offer shares in ten (10) series, streetTRACKS(SM) Dow Jones U.S. Large-Cap Value Index Fund, streetTRACKS(SM) Dow Jones U.S. Large Cap Growth Index Fund, streetTRACKS(SM) Dow Jones U.S. Small Cap Value Index Fund, streetTRACKS(SM) Dow Jones U.S. Small Cap Growth Index Fund, streetTRACKS(SM) Dow Jones Global Titans Index Fund, streetTRACKS(SM) Wilshire REIT Index Fund, streetTRACKS(SM) Morgan Stanley High Tech 35 Index Fund, streetTRACKS(SM) Morgan Stanley Internet Index Fund, The FORTUNE 500(R) Index Fund and The FORTUNE e-50(TM) Index Fund (each such series, together with all other series subsequently established by the Trust and made subject to this Agreement in accordance with Article 10, being herein referred to as a "Fund", and collectively as the "Funds"); WHEREAS, the Trust will issue and redeem shares of each Fund only in aggregations of shares known as "Creation Units" (currently 50,000 shares in the case of each Fund) (each a "Creation Unit") principally in kind for portfolio securities of the respective Fund, as more fully described in the prospectus and statement of additional information of the Trust (together, the "Prospectus") included in its registration statement on Form N-1A (the "Registration Statement") (Reg. Nos. 333-57793, 811-08839); and WHEREAS, the shares of each of the initial ten (10) Funds have been approved for listing on the American Stock Exchange LLC (the "AMEX"), subject to notice of issuance; WHEREAS, The Depository Trust Company, a limited purpose trust company organized under the laws of the State of New York ("DTC"), or its nominee, will be the initial record or registered owner (the "Shareholder") of all shares; WHEREAS, the Trust on behalf of the Funds desires to appoint the Bank as its transfer agent, dividend disbursing agent, and agent in connection with certain other activities, and the Bank desires to accept such appointment; NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows: 2 l. Terms of Appointment; Duties of the Bank 1.1 Subject to the terms and conditions set forth in this Agreement, the Trust, on behalf of the Funds, hereby employs and appoints the Bank to act as, and the Bank agrees to act as its transfer agent for the authorized and issued shares of beneficial interest, $ 0.01 par value of each Fund listed on Annex A hereto ("Shares"), and as the Trust's dividend disbursing agent. 1.2 The Bank agrees that it will perform the following services: (a) In accordance with procedures established from time to time by agreement between the Trust on behalf of each of the Funds, as applicable, and the Bank, the Bank shall: (i) Review upon receipt from the Trust's distributor (the "Distributor") orders for the purchase of Creation Unit aggregations of Shares which have been submitted to the Distributor and based on its records and the records of DTC determine whether the order if accepted will result in the depositor of the Fund Deposit owning or appearing to own eighty percent (80%) of the outstanding Shares of such Fund and provide advice of the same to the Distributor; (ii) Receive from the Distributor purchase orders from Authorized Participants (as defined in the Prospectus) for Creation Unit aggregations of Shares received in good form and accepted by or on behalf of the Trust by the Distributor, transmit appropriate trade instructions to the National Securities Clearance Corporation, if applicable, and pursuant to such orders issue the appropriate number of Shares of the applicable Fund and hold such Shares in the account of the Shareholder for each of the respective Funds of the Trust; (iii) Receive from Authorized Participants (as defined in the Prospectus) redemption requests; deliver the appropriate documentation thereof to the authorized custodian of the Trust (the "Custodian"); generate and transmit or cause to be generated and transmitted confirmation of receipt of such redemption requests to the Authorized Participants submitting the same; transmit appropriate trade instructions to the National Securities Clearance Corporation, if applicable; and redeem the appropriate number of Creation Unit Aggregations of Shares held in the account of the Shareholder; (iv) Prepare and transmit by means of DTC's book-entry system payments for dividends and distributions declared by the Trust on behalf of the applicable Fund; 3 (v) Maintain the record of the name and address of the Shareholder and the number of Shares issued by each Fund of the Trust and held by the Shareholder; (vi) Record the issuance of Shares of the Trust and maintain pursuant to SEC Rule 17Ad-10(e) a record of the total number of Shares of the Trust, and of each Fund, which are authorized, based upon data provided to it by the Trust, and issued and outstanding. The Bank shall also provide the Trust on a regular basis with the total number of Shares of each Fund which are authorized and issued and outstanding and shall have no obligation, when recording the issuance of Shares, to monitor the issuance of such Shares or to take cognizance of any laws relating to the issue or sale of such Shares, which functions shall be the sole responsibility of the Trust. (vii) Prepare and transmit to the Trust and the Administrator all information with respect to purchases and redemptions of Shares as may be required to be reported to the AMEX and any other applicable securities exchange; (viii) On days that a Fund may accept orders for purchases or redemptions, calculate and transmit to the Custodian and the Trust's administrator the number of outstanding Shares for each Fund; (ix) On days that a Fund may accept orders for purchases or redemptions, transmit to the Custodian, the Trust and DTC the amount of Shares purchased or redeemed for such Fund; (x) Confirm to DTC the number of Shares evidenced by each global certificate in registered form (the "Global Certificate") issued to the Shareholder, as DTC may reasonably request; (xi) Prepare and deliver other reports, information and documents to DTC as DTC may reasonably request; (xii) Extend the voting rights to the Shareholder and/or beneficial owners of Shares in accordance with the policies and procedures of DTC for book-entry only securities; (xiii) Maintain those books and records of the Trust that are required under Rule 31a-1(b)(2)(D) of the 1940 Act unless otherwise directed by the Trust; (b) In addition to and neither in lieu nor in contravention of the services set forth in the above paragraph (a), the Bank shall: (i) perform the customary services of a transfer agent and dividend disbursing agent including but not limited to: maintaining the account of the Shareholder, obtaining a list of DTC participants holding interests in the Global Certificate at the request of the Trust, mailing 4 proxy materials, shareholder reports and prospectuses to the Shareholder or DTC participants or beneficial owners of Shares at the request of the Trust. (c) For so long as Shares are represented by Global Certificates, the following shall be delivered to DTC for delivery to beneficial owners in accordance with the procedures for book-entry only securities of DTC: (i) Annual and semi-annual reports of the Trust; (ii) Proxies, proxy statements and other proxy soliciting materials; (iii) Prospectus and amendments and supplements to the Prospectus, including stickers; and (iv) Other communications as may be required by law or reasonably requested by the Trust. (d) The Bank shall provide additional services on behalf of the Trust (i.e., escheatment services) which may be agreed upon in writing between the Trust and the Bank. 2. Fees and Expenses 2.1 The Bank shall receive from the Adviser such compensation for the Transfer Agent's services provided pursuant to this Agreement as may be agreed to from time to time in a written fee schedule approved by the parties, and initially set forth as a "Unitary Fee" in the Custody, Accounting, Transfer Agent, Stock Transfer, Fund Administration and Advisory Fee Schedule to this Agreement. The fees are accrued daily and billed monthly and shall be due and payable upon receipt of the invoice. Upon the termination of this Agreement before the end of any month, the fee for the part of the month before such termination shall be prorated according to the proportion which such part bears to the full monthly period and shall be payable upon the date of termination of this Agreement. 2.2 In addition to the fee paid under Section 2.1 above, the Adviser agrees on behalf of each of the Funds to reimburse the Bank for out-of-pocket expenses, including but not limited to confirmation production, postage, forms, telephone, microfilm, microfiche, tabulating proxies, records storage, or advances incurred by the Bank for the items set out in the fee schedule attached hereto. In addition, any other expenses incurred by the Bank at the request or with the consent of the Trust, will be reimbursed by the Adviser on behalf of the applicable Fund. 2.3 The Adviser agrees on behalf of each of the Funds to pay all fees and reimbursable expenses within five days following the receipt of the respective billing notice. Postage for mailing of dividends, proxies, Trust reports and other mailings to all shareholder accounts shall be advanced to the Bank by the Adviser at least seven (7) days prior to the mailing date of such materials. 5 3. Representations and Warranties of the Bank The Bank represents and warrants to the Trust that: 3.1 It is a trust company duly organized and existing and in good standing under the laws of The Commonwealth of Massachusetts. 3.2 It is duly qualified to carry on its business in The Commonwealth of Massachusetts. 3.3 It is empowered under applicable laws and by its Charter and By-Laws to act as transfer agent and dividend disbursing agent and to enter into and perform this Agreement. 3.4 All requisite corporate proceedings have been taken to authorize it to enter into and perform this Agreement. 3.5 It has and will continue to have access to the necessary facilities, equipment and personnel to perform its duties and obligations under this Agreement. 4. Representations and Warranties of the Trust The Trust represents and warrants to the Bank that: 4.1 It is a business trust duly organized and existing and in good standing under the laws of The Commonwealth of Massachusetts. 4.2 It is empowered under applicable laws and by its Declaration of Trust and By-Laws to enter into and perform this Agreement. 4.3 All corporate proceedings required by said Declaration of Trust and By-Laws have been taken to authorize it to enter into and perform this Agreement. 4.4 It is an open-end management investment company registered under the Investment Company Act of 1940, as amended. 4.5 A registration statement under the Securities Act of 1933, as amended, on behalf of each of the Funds is currently effective and will remain effective, and appropriate state securities law filings have been made and will continue to be made, with respect to all Shares of the Trust being offered for sale. 5. Data Access and Proprietary Information 5.1 The Trust acknowledges that the data bases, computer programs, screen formats, report formats, interactive design techniques, and documentation manuals furnished to the Trust by the Bank as part of the Trust's ability to access certain Trust-related data ("Customer Data") maintained by the Bank on data bases under the control and ownership of the Bank or other third party ("Data Access Services") constitute 6 copyrighted, trade secret, or other proprietary information (collectively, "Proprietary Information") of substantial value to the Bank or other third party. In no event shall Proprietary Information be deemed Customer Data. The Trust agrees to treat all Proprietary Information as proprietary to the Bank and further agrees that it shall not divulge any Proprietary Information to any person or organization except as may be provided hereunder. Without limiting the foregoing, the Trust agrees for itself and its employees and agents: (a) to access Customer Data solely from locations as may be designated in writing by the Bank and solely in accordance with the Bank's applicable user documentation; (b) to refrain from copying or duplicating in any way the Proprietary Information; (c) to refrain from obtaining unauthorized access to any portion of the Proprietary Information, and if such access is inadvertently obtained, to inform in a timely manner of such fact and dispose of such information in accordance with the Bank's instructions; (d) to refrain from causing or allowing the data acquired hereunder from being retransmitted to any other computer facility or other location, except with the prior written consent of the Bank; (e) that the Trust shall have access only to those authorized transactions agreed upon by the parties; (f) to honor all reasonable written requests made by the Bank to protect at the Bank's expense the rights of the Bank in Proprietary Information at common law, under federal copyright law and under other federal or state law. Each party shall take reasonable efforts to advise its employees of their obligations pursuant to this Section 5. The obligations of this Section shall survive any earlier termination of this Agreement. 5.2 If the Trust notifies the Bank that any of the Data Access Services do not operate in material compliance with the most recently issued user documentation for such services, the Bank shall endeavor in a timely manner to correct such failure. Organizations from which the Bank may obtain certain data included in the Data Access Services are solely responsible for the contents of such data and the Trust agrees to make no claim against the Bank arising out of the contents of such third-party data, including, but not limited to, the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE BANK EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 7 5.3 If the transactions available to the Trust include the ability to originate electronic instructions to the Bank in order to (i) effect the transfer or movement of cash or Shares or (ii) transmit Shareholder information or other information, then in such event the Bank shall be entitled to rely on the validity and authenticity of such instruction without undertaking any further inquiry as long as such instruction is undertaken in conformity with security procedures established by the Bank from time to time. 6. Indemnification 6.1 The Bank shall not be responsible for, and the Trust shall on behalf of the applicable Fund indemnify and hold the Bank harmless from and against, any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability arising out of or attributable to: (a) All actions of the Bank or its agents or subcontractors required to be taken pursuant to this Agreement, provided that such actions are taken in good faith and without negligence or willful misconduct. (b) The Trust's negligence, willful misconduct or lack of good faith which arise out of the breach of any representation or warranty of the Trust hereunder. (c) The reliance on or use by the Bank or its agents or subcontractors of information, records, documents or services which (i) are received by the Bank or its agents or subcontractors, and (ii) have been prepared, maintained or performed by the Trust or any other person or firm on behalf of the Trust including but not limited to any previous transfer agent or registrar. (d) The reliance on, or the carrying out by the Bank or its agents or subcontractors of any instructions or requests of the Trust on behalf of the applicable Fund. (e) The offer or sale of Shares in violation of any requirement under the federal securities laws or regulations or the securities laws or regulations of any state that such Shares be registered in such state or in violation of any stop order or other determination or ruling by any federal agency or any state with respect to the offer or sale of such Shares in such state. 6.2 At any time the Bank may apply to any officer of the Trust for instructions, and may consult with legal counsel with respect to any matter arising in connection with the services to be performed by the Bank under this Agreement, and the Bank and its agents or subcontractors shall not be liable and shall be indemnified by the Trust on behalf of the applicable Fund for any action taken or omitted by it in reliance upon such instructions or upon the opinion of such counsel. The Bank, its agents and subcontractors shall be protected and indemnified in acting upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided the Bank or its agents or subcontractors by machine readable input, telex, CRT 8 data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Trust. 6.3 In order that the indemnification provisions contained in this Section 6 shall apply, upon the assertion of a claim for which the Trust may be required to indemnify the Bank, the Bank shall promptly notify the Trust of such assertion, and shall keep the Trust advised with respect to all developments concerning such claim. The Trust shall have the option to participate with the Bank in the defense of such claim or to defend against said claim in its own name or in the name of the Bank. The Bank shall in no case confess any claim or make any compromise in any case in which the Trust may be required to indemnify the Bank except with the Trust's prior written consent. 7. Standard of Care The Bank shall at all times act in good faith and agrees to use its best efforts within reasonable limits to insure the accuracy of all services performed under this Agreement, but assumes no responsibility and shall not be liable for loss or damage due to errors unless said errors are caused by its negligence, bad faith, or willful misconduct or that of its employees. 8. Covenants of the Trust and the Bank 8.1 The Trust shall on behalf of each of the Funds promptly furnish to the Bank the following: (a) A certified copy of the resolution of the Board of Trustees of the Trust authorizing the appointment of the Bank and the execution and delivery of this Agreement. (b) A copy of the Declaration of Trust and By-Laws of the Trust and all amendments thereto. 8.2 The Bank shall keep records relating to the services to be performed hereunder, in the form and manner as it may deem advisable. To the extent required by Section 31 of the Investment Company Act of 1940, as amended, and the Rules thereunder, the Bank agrees that all such records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the Trust and will be preserved, maintained and made available in accordance with such Section and Rules, and will be surrendered promptly to the Trust on and in accordance with its request. 8.3 The Bank and the Trust agree that all books, records, information and data pertaining to the business of the other party which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement shall remain confidential, and shall not be voluntarily disclosed to any other person, except as may be required by law. 9 8.4 In case of any requests or demands for the inspection of the Shareholder records of the Trust, the Bank will endeavor to notify the Trust and to secure instructions from an authorized officer of the Trust as to such inspection. The Bank reserves the right, however, to exhibit the Shareholder records to any person whenever it is advised by its counsel that it may be held liable for the failure to exhibit the Shareholder records to such person. 9. Termination of Agreement 9.1 This Agreement may be terminated by either party upon thirty (30) days written notice to the other. 9.2 Should the Trust exercise its right to terminate, all out-of-pocket expenses associated with the movement of records and material will be borne by the Trust on behalf of the applicable Fund(s). Additionally, the Bank reserves the right to charge for any other reasonable expenses associated with such termination and/or a charge equivalent to the average of three (3) months' fees. 10. Additional Series In the event that the Trust establishes one or more series of Shares in addition to the Funds with respect to which it desires to have the Bank render services as transfer agent under the terms hereof, it shall so notify the Bank in writing, and if the Bank agrees in writing to provide such services, such series of Shares shall become a Fund hereunder. 11. Assignment 11.1 Except as provided in Section 11.3 below, neither this Agreement nor any rights or obligations hereunder may be assigned by either party without the written consent of the other party. 11.2 This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. 11.3 The Bank may, without further consent on the part of the Trust, subcontract for the performance, in whole or in part, of this Agreement with (i) Boston Financial Data Services, Inc., a Massachusetts corporation ("BFDS") which is duly registered as a transfer agent pursuant to Section 17A(c)(2) of the Securities Exchange Act of 1934, as amended ("Section 17A(c)(2)"), (ii) a BFDS subsidiary duly registered as a transfer agent pursuant to Section 17A(c)(2), (iii) a BFDS affiliate or (iv) Boston EquiServe Trust Company, N.A.; provided, however, that the Bank shall be as fully responsible to the Trust for the acts and omissions of any subcontractor as it is for its own acts and omissions. 12. Amendment This Agreement may be amended or modified by a written agreement executed by both 10 parties and authorized or approved by a resolution of the Board of Trustees of the Trust. 13. Massachusetts Law to Apply This Agreement shall be construed and the provisions thereof interpreted under and in accordance with the laws of The Commonwealth of Massachusetts. 14. Force Majeure In the event either party is unable to perform its obligations under the terms of this Agreement because of acts of God, strikes, equipment or transmission failure or damage reasonably beyond its control, or other causes reasonably beyond its control, such party shall not be liable for damages to the other for any damages resulting from such failure to perform or otherwise from such causes. 15. Consequential Damages Neither party to this Agreement shall be liable to the other party for consequential damages under any provision of this Agreement or for any consequential damages arising out of any act or failure to act hereunder. 16. Merger of Agreement This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior agreement with respect to the subject matter hereof whether oral or written. 17. Limitations of Liability of the Trustees and Shareholders The Amended and Restated Declaration of Trust dated September 6, 2000, which is hereby referred to and a copy of which is on file with the Secretary of The Commonwealth of Massachusetts, provides that the name streetTRACKS(SM) Series Trust means the Trustees from time to time serving (as Trustees but not personally) under such Declaration of Trust. It is expressly acknowledged and agreed that the obligations of the Trust hereunder shall not be binding upon any of the shareholders, Trustees, officers, employees or agents of the Trust, personally, but shall bind only the trust property of the Trust, as provided in its Declaration of Trust. The execution and delivery of this Agreement have been authorized by the Trustees of the Trust and signed by an officer of the Trust, acting as such, and neither such authorization by such Trustees nor such execution and delivery by such officer shall be deemed to have been made by any of them individually or to impose any liability on any of them personally, but shall bind only the trust property of the Trust as provided in its Declaration of Trust. 11 18. Counterparts This Agreement may be executed by the parties hereto on any number of counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. 19. Reproduction of Documents This Agreement and all schedules, exhibits, attachments and amendments hereto may be reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic or other similar process. The parties hereto all/each agree that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding, whether or not the original is in existence and whether or not such reproduction was made by a party in the regular course of business, and that any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their names and on their behalf by and through their duly authorized officers, as of the day and year first above written. 12 streetTRACKS(SM) SERIES TRUST BY:/s/ Agustin J. Fleites ------------------------------ ATTEST: Treasurer /s/ James Ross --------------------------------------- STATE STREET BANK AND TRUST COMPANY (the "Bank") BY:/s/ Ronald Logue ------------------------------ Executive Vice President ATTEST: /s/ Glenn Ciotti, VP & Associate Counsel --------------------------------------- STATE STREET BANK AND TRUST COMPANY ("the Adviser") BY: /s/ Timothy Harbert ------------------------------ Executive Vice President ATTEST: /s/ James Ross --------------------------------------- 13 ANNEX A streetTRACKS(SM) Dow Jones U.S. Large-Cap Value Fund streetTRACKS(SM) Dow Jones U.S. Large-Cap Growth Fund streetTRACKS(SM) Dow Jones U.S. Small-Cap Value Fund streetTRACKS(SM) Dow Jones U.S. Small-Cap Growth Fund streetTRACKS(SM) Dow Jones Global Titans Index Fund streetTRACKS(SM) Wilshire REIT Index Fund streetTRACKS(SM) Morgan Stanley High Tech 35 Index Fund streetTRACKS(SM) Morgan Stanley Internet Index Fund The FORTUNE 500(R) Index Fund The FORTUNE e-50(TM) Index Fund Dated: September 22, 2000