MASTER FEEDER PARTICIPATION AGREEMENT
AMONG
SSgA S&P 000 XXXXX XXXX,
XXXXX XXXXXX EQUITY 500 INDEX PORTFOLIO
AND
SSGA FUNDS MANAGEMENT, INC.
DATED AS OF
JULY __, 2001
AGREEMENT
THIS AGREEMENT is made and entered into as of the ___ day of July 2001, by
and among SSgA S&P 500 Index Fund (the "Fund"), a series of SSgA Funds, a trust
organized under the common law of the Commonwealth of Massachusetts; State
Street Equity 500 Index Portfolio (the "Portfolio"), a series of State Street
Master Funds, a trust organized under the common law of the Commonwealth of
Massachusetts (the "Trust"); and SSgA Funds Management, Inc., a Massachusetts
corporation (the "Adviser"), with respect to the proposed investment by the Fund
in the Portfolio.
WITNESSETH
WHEREAS, the Fund and the Portfolio are each open-end management
investment companies and the Fund and the Portfolio have the same investment
objectives and substantively the same investment policies;
WHEREAS, the Adviser currently serves as the investment adviser of the
Fund and the Portfolio and an affiliate of the Adviser previously served as the
investment adviser of the Fund and the Portfolio; and
WHEREAS, the Fund invests all of its investable assets in the Portfolio in
exchange for a beneficial interest in the Portfolio (the "Investment") on the
terms and conditions set forth in this Agreement;
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NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein made and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
THE INVESTMENT
1.1 The Fund invests all of its investable assets in the Portfolio and,
in exchange therefor, the Portfolio has issued to the Fund a beneficial interest
in the Portfolio equal in value to the net value of the assets of the Fund
conveyed to the Portfolio (the "Interests"). The Fund may add to or reduce its
investment in the Portfolio in the manner described in the Portfolio's
registration statement on Form N-1A (the "Portfolio's N-1A"). The Fund's
aggregate interest in the Portfolio would then be recomputed in accordance with
the method described in the Portfolio's N-1A, as it may amend from time to time.
1.2 In connection with its initial investment in the Portfolio, the Fund
had executed and delivered to the Portfolio an application substantially in the
form of APPENDIX A attached hereto.
1.3 The Investment, as described above, together with related acts
necessary to consummate such transactions, initially occurred on June 1, 2001,
and will occur at each subsequent date as the Fund desires to make a further
Investment in the Portfolio. All acts occurring on the date of an Investment
shall be deemed to occur simultaneously as of the last daily determination of
the Portfolio's net asset value on the date of the Investment.
1.4 Related Matters. On each date of Investment, the Fund shall
authorize the Fund's custodian to deliver all of the assets held by such
custodian to the Portfolio's custodian. The Portfolio's custodian shall
acknowledge its acceptance of the assets. The Portfolio shall deliver to the
Fund acceptable evidence of the Fund's ownership of the Interests. In addition,
each party shall deliver to each other party such bills of sale, checks,
assignments, securities instruments, receipts or other documents as such other
party or its counsel may reasonably request.
II
REPRESENTATIONS AND WARRANTIES
2.1 The Fund. The Fund represents and warrants to the Portfolio:
(a) Organization. The Fund is a series of the SSgA Funds ("SSgA
Funds"), which is a trust duly organized and validly existing under the
Commonwealth of Massachusetts and has the requisite power and authority to own
its property and conduct its business as now being conducted and as proposed to
be conducted pursuant to this Agreement.
(b) Authorization of Agreement. The execution and delivery of this
Agreement by the Fund and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the Fund
by its Board of Trustees and no other action or proceeding is necessary for the
execution and delivery of this Agreement by
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the Fund, the performance by the Fund of its obligations hereunder and the
consummation by the Fund of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by the Fund and constitutes a legal, valid
and binding obligation of the Fund, enforceable against it in accordance with
its terms.
(c) No Bankruptcy Proceedings. The Fund is not under the
jurisdiction of a court in a proceeding under Title 11 of the United States Code
(the "Bankruptcy Code") or similar case within the meaning of Section 368(a) (3)
(A) of the Bankruptcy Code.
(d) Registration Statement. The Fund have reviewed the Portfolio's
registration statement on Form N-1A, as filed with the Securities and Exchange
Commission ("SEC"), and the Fund understands and agrees to the Portfolio's
policies and methods of operation as described therein.
(e) Errors and Omissions Insurance Policy. The Fund has in force
an errors and omissions liability insurance policy covering the SSgA Funds as a
whole insuring the Fund against loss up to $10 million for negligence or
wrongful acts.
(f) SEC Filings. The Fund has duly filed all forms, reports, proxy
statements and other documents (collectively, the "SEC Filings") required to be
filed under the Securities Act of 1933, as amended (the "1933 Act"), the
Securities Exchange Act of 1934 (the "1934 Act") and the Investment Company Act
of 1940 Act, as amended (the "1940 Act" and collectively with the 1933 Act and
the 1934 Act, the "Securities Laws") in connection with the registration of its
shares, any meetings of its shareholders and its registration as an investment
company. The SEC Filings were prepared in accordance with the requirements of
the Securities Laws, as applicable, and the rules and regulations of the SEC
thereunder, and do not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(g) 1940 Act Registration. The Fund is duly registered as an
open-end management investment company under the 1940 Act and the Fund and its
shares are registered or qualified in any states where such registration or
qualification is necessary and such registrations or qualifications are in full
force and affect.
2.2 The Portfolio. The Portfolio represents and warrants to the Fund
that:
(a) Organization. The Portfolio is a series of the Trust, a trust
duly organized and validly existing under the Commonwealth of Massachusetts and
has the requisite power and authority to own its property and conduct its
business as now being conducted and as proposed to be conducted pursuant to this
Agreement.
(b) Authorization of Agreement. The execution and delivery of this
Agreement by the Portfolio and the consummation of the transactions contemplated
hereby have
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been duly authorized by all necessary action on the part of the Portfolio by its
Board of Trustees and no other action or proceeding is necessary for the
execution and delivery of this Agreement by the Portfolio, the performance by
the Portfolio of its obligations hereunder and the consummation by the Portfolio
of the transactions contemplated hereby. This Agreement has been duly executed
and delivered by the Portfolio and constitutes a legal, valid and binding
obligation of the Portfolio, enforceable against it in accordance with its
terms.
(c) Authorization of Issuance of Interest. The issuance by the
Portfolio of the Interests in exchange for the Investment by the Fund of its
assets has been duly authorized by all necessary action on the part of the Board
of Trustees of the Portfolio. When issued in accordance with the terms of this
Agreement, the Interests will be validly issued, fully paid and non-assessable
by the Portfolio.
(d) No Bankruptcy Proceedings. The Portfolio is not under the
jurisdiction of a court in a proceeding under Title 11 of the Bankruptcy Code or
similar case within the meaning of Section 368(a)(3)(A) of the Bankruptcy Code.
(e) Registration Statement. The Portfolio has reviewed the Fund's
registration statement on Form N-1A, as filed with the SEC, and understands and
agrees to the Fund's policies and methods of operation as described therein.
(f) Errors and Omissions Insurance Policy. The Portfolio has in
force an errors and omissions liability insurance policy covering the State
Street Master Funds as a whole insuring the Portfolio against loss up to $5
million for negligence or wrongful acts.
(g) SEC Filings. The Portfolio has duly filed all SEC Filings
required to be filed with the SEC pursuant to the 1934 Act and the 1940 Act in
connection with any meetings of its investors and its registration as an
investment company. Beneficial interests in the Portfolio are not required to be
registered under the 1933 Act because such interests are offered solely in
private placement transactions that do not involve any `public offering' within
the meaning of Section 4(2) of the 1933 Act. The SEC Filings were prepared in
accordance with the requirements of the Securities Laws, as applicable, and the
rules and regulations of the SEC thereunder, and do not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(h) 1940 Act Registration. The Portfolio is duly registered as an
open-end management investment company under the 1940 Act and such registration
is in full force and effect.
(i) Tax Status. The Portfolio is taxable as a partnership under
the Internal Revenue Code of 1986, as amended (the "Code").
(j) Pricing Procedures. The Portfolio has adopted pricing and
valuation procedures that comply with the 1940 Act.
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2.3 The Adviser. The Adviser represents and warrants to the Fund that:
(a) Organization. The Adviser is a Massachusetts corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and has the requisite power and authority to
conduct its business as now being conducted.
(b) Authorization of Agreement. The execution and delivery of this
Agreement by the Adviser have been duly authorized by all necessary action on
the part of the Adviser and no other action or proceeding is necessary for the
execution and delivery of this Agreement by the Adviser. This Agreement has been
duly executed and delivered by the Adviser and constitutes a legal, valid and
binding obligation of the Adviser.
(c) Advisers Act. The Adviser is an investment adviser, as defined
in the Investment Advisers Act of 1940, as amended (the "Advisers Act"), and is
registered as an investment adviser under that Act.
III
COVENANTS
3.1 The Fund. The Fund covenants that:
(a) Advance Review of Certain Documents. The Fund will furnish the
Portfolio and the Adviser, at least 10 business days prior to filing or first
use, as the case may be, with drafts of its registration statement on Form N-lA
(including amendments) and prospectus supplements or amendments relating to the
Fund. The Fund will furnish the Portfolio and the Adviser with any proposed
advertising or sales literature relating to the Fund at least 2 business days
prior to filing or first use. The Fund agrees that it will include in all such
Fund documents any disclosures that may be required by law and it will include
in all such Fund documents any material comments reasonably made by the Adviser
or the Portfolio. The Portfolio and the Adviser will, however, in no way be
liable for any errors or omissions in such documents, whether or not they make
any objection thereto, except to the extent such errors or omissions result from
information provided by the Adviser or the Portfolio. The Fund will not make any
other written or oral representation about the Portfolio or the Adviser without
their prior written consent.
(b) Tax Status. The Fund will qualify for treatment as a regulated
investment company under Subchapter M of the Code for all periods during which
this Agreement is in effect, except to the extent a failure to so qualify may
result from any action or omission of the Portfolio.
(c) Investment Securities. The Fund will own no investment
security other than its Interests in the Portfolio for all periods during which
this Agreement is in effect.
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(d) Proxy Voting. If requested to vote on matters pertaining to
the Portfolio, the Fund will (i) call a meeting of shareholders of the Fund for
the purpose of seeking instructions from shareholders regarding such matters,
(ii) vote the Fund's Interests proportionally as instructed by the Fund's
shareholders, and (iii) vote the Fund's Interests with respect to the shares
held by the Fund's shareholders who do not give voting instructions in the same
proportion as the shares of the Fund's shareholders who do give voting
instructions. The Fund will hold each such meeting of the Fund's shareholders in
accordance with a timetable reasonably established by the Portfolio.
3.2 Indemnification by the Fund.
(a) The Fund will indemnify and hold harmless the Portfolio, and
the Trust, its respective trustees, directors, officers and employees and each
other person who controls the Portfolio, within the meaning of Section 15 of the
1933 Act (each, a "Covered Person" and collectively, "Covered Persons"), against
any and all losses, claims, demands, damages, liabilities and expenses (each, a
"Liability" and collectively, the "Liabilities") (including the reasonable cost
of investigating and defending against any claims therefor and any counsel fees
incurred in connection therewith), joint or several, which
(i) arise out of or are based upon any of the Securities
Laws, any other statute or common law or are incurred in connection with or as a
result of any formal or informal administrative proceeding or investigation by a
regulatory agency, insofar as such Liabilities arise out of or are based upon
the ground or alleged ground that any direct or indirect omission or commission
by the Fund (either during the course of its daily activities or in connection
with the accuracy of its representations or its warranties in this Agreement)
caused or continues to cause the Portfolio to violate any federal or state
securities laws or regulations or any other applicable domestic or foreign law
or regulations or common law duties or obligations, but only to the extent that
such Liabilities do not arise out of and are not based upon an omission or
commission of the Portfolio;
(ii) arise out of the Fund's having caused the Portfolio to
be an association taxable as a corporation rather than a partnership; or
(iii) arise out of any misstatement of a material fact or an
omission of a material fact in the Fund's registration statement (including
amendments thereto) or included in the Fund's advertising or sales literature,
other than information provided by the Portfolio or included in the Fund's
advertising or sales literature at the request of the Portfolio;
(iv) result from the failure of any representation or
warranty made by the Fund to be accurate when made or the failure of the Fund to
perform any covenant contained herein or to otherwise comply with the terms of
this Agreement;
(v) arise out of any unlawful or negligent act of the Fund
or SSgA Funds or any director, officer, employee or agent of SSgA Funds, whether
such act was committed against the Fund, the Portfolio or any third party; or
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(vi) arise out of any claim that the use of the names
"Standard & Poor's," "S&P," "Standard & Poor's 500" or "500" by the Fund or SSgA
Funds violates any license or infringes upon any trademark; provided, however,
that in no case shall the Fund be liable with respect to any claim made against
any Covered Person unless the party shall have notified the Fund in writing of
the nature of the claim within a reasonable time after the summons, other first
legal process or formal or informal initiation of a regulatory investigation or
proceeding shall have been served upon or provided to a Covered Person, or any
federal, state or local tax deficiency has come to the attention of the
Portfolio or a Covered Person. Failure to notify the Fund of such claim shall
not relieve it from any liability that it may have to any party otherwise than
on account of the indemnification contained in this Section.
(b) The Fund will be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but, if the Fund elects to assume the defense, such
defense shall be conducted by counsel chosen by the Fund and reasonably
acceptable to the Portfolio. In the event the Fund elects to assume the defense
of any such suit and retain such counsel, each Covered Person and any other
defendant or defendants may retain additional counsel, but shall bear the fees
and expenses of such counsel unless (A) the Fund shall have specifically
authorized the retaining of such counsel or (B) the parties to such suit include
any Covered Person and the Fund, and any such Covered Person has been advised by
counsel that one or more legal defenses may be available to it that may not be
available to the Fund, in which case the Fund shall not be entitled to assume
the defense of such suit notwithstanding its obligation to bear the fees and
expenses of such counsel. The Fund shall not be liable to indemnify any Covered
Person for any settlement of any claim effected without the Fund's written
consent, which consent shall not be unreasonably withheld or delayed. The
indemnities set forth in paragraph (a) will be in addition to any liability that
the Fund might otherwise have to a Covered Person.
3.3 The Portfolio. The Portfolio covenants that:
(a) Tax Status. The Portfolio will qualify to be taxable as a
partnership under the Code for all periods during which this Agreement is in
effect, except to the extent that the failure to so qualify a result from any
action or omission of the Fund.
(b) Insurance. The Portfolio shall at all times maintain errors
and omissions liability insurance covering losses for negligence and wrongful
acts in an amount not less than $3 million.
(c) Availability of Interests. Conditional upon the Fund complying
with the terms of this Agreement, the Portfolio shall permit the Fund to make
additional Investments in the Portfolio on each business day on which shares of
the Fund are sold to the public; provided, however, that the Portfolio may
refuse to permit the Fund to make additional Investments in the Portfolio on any
day on which (i) the Portfolio has refused to permit all other investors in the
Portfolio to make additional Investments in the Portfolio or (ii) the Trustees
of the Trust have reasonably determined that permitting additional Investments
by the Fund in the Portfolio would
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constitute a breach of their fiduciary duties to the Portfolio.
(d) Investment Objective. The Portfolio will notify the Fund at
least 60 days prior to changing its investment objective or policies.
3.4 Indemnification by the Portfolio.
(a) The Portfolio will indemnify and hold harmless the Fund and
SSgA Funds and its respective trustees, officers and employees and each other
person who controls the Fund, as the case may be, within the meaning of Section
15 of the 1933 Act (each, a "Covered Person" and collectively, "Covered
Persons"), against any and all losses, claims, demands, damages, liabilities and
expenses (each, a "Liability" and collectively, the "Liabilities") (including
the reasonable costs of investigating and defending against any claims therefor
and any counsel fees incurred in connection therewith), joint or several,
whether incurred directly by the Fund or through the Fund's Investment in the
Portfolio, which
(i) arise out of or are based upon any of the Securities
Laws, any other statute or common law or are incurred in connection with or as a
result of any formal or informal administrative proceeding or investigation by a
regulatory agency, insofar as such Liabilities arise out of or are based upon
the ground or alleged ground that any direct or indirect omission or commission
by the Portfolio (either during the course of its daily activities or in
connection with the accuracy of its representations or its warranties in this
Agreement) caused or continues to cause the Fund to violate any federal or state
securities laws or regulations or any other applicable domestic or foreign law
or regulations or common law duties or obligations, but only to the extent that
such Liabilities do not arise out of and are not based upon an omission or
commission of the Fund;
(ii) arise out of or are based upon an inaccurate
calculation of the Portfolio's net asset value (whether by the Portfolio or any
party retained for that purpose);
(iii) arise out of (a) any misstatement of a material fact or
an omission of a material fact in the Portfolio's registration statement
(including amendments thereto) or included at the Portfolio's request in
advertising or sales literature used by the Fund, or (b) any misstatement of a
material fact or an omission of a material fact in the registration statement or
advertising or sales literature of any investor in the Portfolio, other than the
Fund;
(iv) arise out of the Portfolio's having caused the Fund to
fail to qualify as a regulated investment company under the Code;
(v) result from the failure of any representation or
warranty made by the Portfolio to be accurate when made or the failure of the
Portfolio to perform any covenant contained herein or to otherwise comply with
the terms of this Agreement;
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(vi) arise out of any unlawful or negligent act by the
Portfolio or any director, trustee, officer, employee or agent of the Trust,
whether such act was committed against the Portfolio, the Fund or any third
party;
(vii) arise out of any claim that the systems, methodologies,
or technology used in connection with operating the Portfolio, including the
technologies associated with maintaining the master-feeder structure of the
Portfolio, violates any license or infringes upon any patent or trademark;
(viii) arise out of any claim that the use of the names
"Standard & Poor's," "S&P," "Standard & Poor's 500," "S&P 500" or 500" by the
Trust violates any license or infringes upon any trademark; or
(ix) result from any Liability of the Portfolio to any
investor in the Portfolio (or shareholder thereof), other than the Fund (and its
shareholders); provided, however, that in no case shall the Portfolio be liable
with respect to any claim made against any such Covered Person unless such
Covered Person shall have notified the Portfolio in writing of the nature of the
claim within a reasonable time after the summons, other first legal process or
formal or informal initiation of a regulatory investigation or proceeding shall
have been served upon or provided to a Covered Person or any federal, state or
local tax deficiency has come to the attention of the Fund or a Covered Person.
Failure to notify the Portfolio of such claim shall not relieve it from any
liability that it may have to any Covered Person otherwise than on account of
the indemnification contained in this paragraph.
(b) The Portfolio will be entitled to participate at its own expense in
the defense or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but, if the Portfolio elects to assume the defense,
such defense shall be conducted by counsel chosen by the Portfolio. In the event
that the Portfolio elects to assume the defense of any such suit and retain such
counsel, each Covered Person and any other defendant or defendants may retain
additional counsel, but shall bear the fees and expenses of such counsel unless
(A) the Portfolio shall have specifically authorized the retaining of such
counsel or (B) the parties to such suit include any Covered Person and the
Portfolio, and any such Covered Person has been advised by counsel that one or
more legal defenses may be available to it that may not be available to the
Portfolio, in which case the Portfolio shall not be entitled to assume the
defense of such suit notwithstanding its obligation to bear the fees and
expenses of such counsel. The Portfolio shall not be liable to indemnify any
Covered Person for any settlement of any claim affected without the Portfolio's
written consent, which consent shall not be unreasonably withheld or delayed.
The indemnities set forth in paragraph (a) will be in addition to any liability
that the Portfolio might otherwise have to a Covered Person.
3.5 In-Kind Redemption. In the event the Fund desires to withdraw or
redeem all of the Fund's Interests in the Portfolio, unless otherwise agreed to
by the parties, the Portfolio will effect such redemption "in kind." No other
withdrawal or redemption of any Interest in the Portfolio will be satisfied by
means of an "in kind" redemption except in compliance with Rule 18f-1 under the
1940 Act; provided, however, that for purposes of determining compliance with
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Rule 18f-1, each shareholder of the Fund redeeming shares of the Fund on a
particular day will be treated as a direct holder of an Interest in the
Portfolio being redeemed that day.
3.6 Auditors. In the event the Fund's independent public accountants
differ from those of the Portfolio, the Portfolio shall be responsible for any
costs and expenses associated with the need for the Portfolio's independent
public accountants to provide information to the Fund's independent public
accountants.
3.7 Reasonable Actions. Each party covenants that it will, subject to
the provisions of this Agreement, from time to time, as and when requested by
another party or in its own discretion, as the case may be, execute and deliver
or cause to be executed and delivered all such assignments and other
instruments, take or cause to be taken such actions, and do or cause to be done
all things reasonably necessary, proper or advisable in order to consummate the
transactions contemplated by this Agreement and to carry out its intent and
purpose.
3.8 Allocation of Losses.
(a) If the indemnification provided for in Section 3.2 or
Section 3.4 is for any reason unavailable to or insufficient to hold harmless a
Covered Person in respect of any losses, claims, demands, damages, liabilities,
or expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount of such any losses, claims, demands, damages,
liabilities, or expenses incurred by such Covered Person in such proportion as
is appropriate to reflect the relative fault of the Fund and the Portfolio in
connection with the statements or omissions or other action or failure to act
which resulted in such losses, liabilities, claims, damages, or expenses, as
well as any other relevant equitable considerations.
(b) In the case of any such untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact, the
relative fault of the Fund and the Portfolio shall be determined by reference
to, among other things, whether any such untrue statement or alleged untrue
statement or omission or alleged omission related to information supplied by the
Fund or the Portfolio and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission.
(c) The Fund and the Portfolio agree that it would not be just and
equitable if contribution pursuant to this Section 3.8 were determined by any
method of allocation which does not take account of the equitable considerations
referred to above in this Section 3.8. The aggregate amount of losses, claims,
demands, damages, liabilities, and expenses incurred by a Covered Person and
referred to above in this Section 3.8 shall be deemed to include any legal or
other expenses reasonably incurred by such Covered Person in investigating,
preparing, or defending against any litigation or any investigation or
proceeding or any such claims and reasonable counsel fees incurred in connection
therewith.
(d) For purposes of this Section 3.8, each person, if any, who
controls the Fund or the Portfolio within the meaning of Section 15 of the 1933
Act or Section 20 of the Securities Exchange Act of 1934, as amended, shall have
the same rights to contribution as the Fund or the Portfolio, as the case may
be, and each director or trustee, officer, or employee of
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SSgA Funds or the Trust and each officer thereof who signed a registration
statement shall have the same rights to contribution as the Fund or the
Portfolio, as the case maybe.
IV
CONDITIONS PRECEDENT
The obligations of each party to consummate the transactions provided for
herein shall be subject to (a) all representations and warranties of the other
parties contained in this Agreement being true and correct in all material
respects as of the date hereof and, except as they may be affected by the
transactions contemplated by this Agreement, and (b) the following further
conditions that shall be fulfilled on or before investment:
4.1 Regulatory Status. All necessary filings shall have been made with
the SEC and state securities authorities, and no order or directive shall have
been received that any other or further action is required to permit the parties
to carry out the transactions contemplated hereby.
4.2 Investment Objective/Restrictions. The Fund shall have the same
investment objective and substantively the same investment restrictions as the
Portfolio.
V
ADDITIONAL AGREEMENTS
5.1 Notification of Certain Matters. Each party will give prompt notice
to the other parties of (a) the occurrence or non-occurrence of any event the
occurrence or non-occurrence of which would be likely to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate, and (b) any material failure of a party or any trustee, director,
officer, employee or agent thereof to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by such person
hereunder; provided, however, that the delivery of any notice pursuant to this
Section 5.1 shall not limit or otherwise affect the remedies available,
hereunder or otherwise, to the party receiving such notice.
5.2 Access to Information. The Portfolio and the Fund shall afford each
other access at all reasonable times to such party's officers, employees, agents
and offices and to all its relevant books and records and shall furnish each
other party with all relevant financial and other data and information as
requested; provided, however, that nothing contained herein shall obligate the
Fund to provide the Portfolio with access to the books and records of the Fund
relating to any other series of SSgA Funds other than the Fund, nor shall
anything contained herein obligate the Fund to furnish the Portfolio with the
Fund's shareholder list, except as may be required to comply with applicable law
or any provision of this Agreement. The Portfolio will cause the Portfolio's
auditors to be available to the Fund and its auditors.
5.3 Confidentiality. Each party agrees that it shall hold in strict
confidence all data and information obtained from another party (unless such
information is or becomes readily
11
ascertainable from public or published information or trade sources) and shall
ensure that its officers, employees and authorized representatives do not
disclose such information to others without the prior written consent of the
party from whom it was obtained, except if disclosure is required by the SEC,
any other regulatory body or the Fund's or the Portfolio's respective auditors,
or in the opinion of counsel such disclosure is required by law, and then only
with as much prior written notice to the other party as is practical under the
circumstances.
5.4 Public Announcements. No party shall issue any press release or
otherwise make any public statements with respect to the matters covered by this
Agreement without the prior consent of the other parties hereto, which consent
shall not be unreasonably withheld; provided, however, that consent shall not be
required if, in the opinion of counsel, such disclosure is required by law,
provided further, however, that the party making such disclosure shall provide
the other parties hereto with as much prior written notice of such disclosure as
is practical under the circumstances.
5.5 Waiver of Fees. The Adviser understands that the Fund has entered
into this Agreement in reliance upon the Adviser's express intention that, at
all times, the Adviser shall waive fees to the Portfolio such that the aggregate
of all fees paid to the Adviser by the Portfolio shall not exceed .18 of 1% per
annum of the Portfolio's average daily net assets until December 31, 2002.
VI
TERMINATION, AMENDMENT AND WAIVER
6.1 Termination.
(a) This Agreement may be terminated by the Fund upon five (5)
business days notice to the Portfolio and the Adviser.
(b) This Agreement may be terminated at any time by the Fund by
withdrawing all of the Fund's Interest in the Portfolio.
(c) This Agreement may be terminated on not less than 120 days'
prior written notice by the Portfolio to the Fund.
(d) This Agreement may be terminated at any time immediately upon
written notice to the other parties in the event that formal proceedings are
instituted against another party to this Agreement by the SEC or any other
regulatory body, provided that the terminating party has a reasonable belief
that the institution of the proceeding is not without foundation and will have a
material adverse impact on the terminating party.
(e) The indemnification obligations set forth in Article III,
respectively, shall survive the termination of this Agreement.
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6.2 Amendment. This Agreement may be amended, modified or supplemented
at any time in such manner as may be mutually agreed upon in writing by the
parties.
VII
GENERAL PROVISIONS
7.1 Notices. All notices and other communications given or made pursuant
hereto shall to in writing and shall be deemed to have been duly given or made
when actually received in person or by fax, or three days after being sent by
certified or registered United States mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Fund: Xxxxx Xxxxxxx Investment Management Company
000 X Xxxxxx
Xxxxxx, XX 00000
Attn: Legal Department
Fax: 000-000-0000
If to the Adviser: SSgA Funds Management, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: ___________
Fax: 617-__________
If to the Portfolio: Xxxxx Xxxxxx Xxxxxx Xxxxx
x/x Xxxxx Xxxxxx Xxxx and Trust Company
X.X. XXX 0000
Xxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
Fax: 000-000-0000
Any party to this Agreement may change the identity of the person to receive
notice by providing written notice thereof to all other parties to the
Agreement.
7.2 Headings. The headings and captions contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.3 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an
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acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
7.4 Entire Agreement. This Agreement and the agreements and other
documents delivered pursuant hereto set forth the entire understanding between
the parties concerning the subject matter of this Agreement and incorporate or
supersede all prior negotiations and understandings. There are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between them relating to the subject matter of this Agreement other than those
set forth herein.
7.5 Successors and Assignments. Each and all of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and, except as otherwise specifically provided in this Agreement, their
respective successors and assigns. Notwithstanding the foregoing, no party shall
make any assignment of this Agreement or any rights or obligations hereunder
without the written consent of all other parties. As used herein, the term
"assignment" shall have the meaning ascribed thereto in the 1940 Act.
7.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts without giving
effect to the choice of law or conflicts of law provisions thereof.
7.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing one or more counterparts.
7.8 Third Parties. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give any person, other than the parties
hereto and their successors or assigns, any rights or remedies under or by
reason of this Agreement.
7.9 Interpretation. Any uncertainty or ambiguity existing herein shall
not presumptively be interpreted against any party, but shall be interpreted
according to the application of the rules of interpretation for arm's length
agreements.
7.10 Limitation of Liability. Each party expressly acknowledges the
provision in the Declaration of Trust of each of SSgA Funds and the Trust
limiting the personal liability of shareholders of the Fund and the Portfolio
and the officers and trustees of SSgA Funds and the Trust.
7.11 Additional Limitations of Liability. The parties hereto agree and
acknowledge that no series or feeder participant of the Trust shall be liable to
any other series or feeder participant of the Trust. The parties hereto further
agree and acknowledge that the Portfolio has entered into this Agreement solely
on its own behalf and that no other series of the Trust shall have any
obligation hereunder with respect to any liability of the Portfolio arising
hereunder.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers, thereunto duly authorized, as of the date first
written above.
SSgA Funds Management, Inc., as Adviser to SSgA Funds
-----------------------------------------------------
By:
--------------------------------------------------
Its:
-------------------------------------------------
SSgA S&P 500 Index Fund, a series of the SSgA Funds
-----------------------------------------------------
By: J. Xxxxx Xxxxxxxx
Its: Vice President and Secretary
State Street Equity 500 Index Portfolio, a series of State
Street Master Funds
-----------------------------------------------------
By: Xxxxxxxx X. Xxxxxxx
Its: President
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APPENDIX A
STATE STREET MASTER FUNDS
APPLICATION AND AGREEMENT
Name of Participant SSgA S&P 500 Index Fund, a series of the SSgA Funds
-----------------------------------------------------------
Address: c/o Xxxxx Xxxxxxx Investment Management Company
----------------------------------------------------------------------
000 X Xxxxxx, Xxxxxx, XX 00000
----------------------------------------------------------------------
I. PARTICIPATION
1. The Participant named above (the "Participant") hereby subscribes to
purchase from time to time interests ("Interests") of the State
Street Equity 500 Index Portfolio (the "Portfolio"), a series of
State Street Master Funds, a Massachusetts trust (the "Trust").
2. The Participant agrees to, and understands, the terms and conditions
upon which the Interests are being offered, including without
limitation the terms and provisions of the Declaration of Trust of
the Trust (the "Declaration of Trust") and By-Laws (the "By-Laws")
of the Trust.
II. REPRESENTATIONS AND WARRANTIES OF THE PARTICIPANT
Except as prohibited by any federal or state securities law or regulation, the
Participant hereby makes the following representations and warranties with the
intent and understanding that they will be relied upon by the Trust and the
Portfolio in determining whether to sell Interests to the Participant.
1. The Participant is and will at all times when it owns or purchases
Interests be registered as an open-end investment company under the
Investment Company Act of 1940, as amended.
2. The Participant understands and agrees that the Interests have not
been registered and will not be registered under the Securities Act
of 1933, as amended, or any state securities law, and that the
Interests offered and the offering of the Interests have not been
approved, disapproved, or passed on by any federal or state
regulatory agency or commission, securities or commodities exchange,
or other self-regulatory organization. The sale of Interests is
being made privately by the Portfolio pursuant to the private
placement exemption from registration provided by Section 4(2) of
the Securities Act.
3. The Participant acknowledges that it has received copies of the
Offering Memorandum of the Portfolio (the "Memorandum") and of the
Declaration of Trust and By-Laws. The Participant has read,
understands, and is fully familiar with each of those documents and
has received adequate information concerning
16
all matters that the Participant considers material to a decision to
purchase the Interests.
4. The Interests subscribed for will be acquired solely by and for the
account of the Participant, solely for investment, and are not being
purchased for resale or distributions. The Participant has no
existing or contemplated agreement or arrangement with any person to
sell, exchange, transfer, assign, pledge, or otherwise dispose of
the Interests.
5. The Participant has relied solely upon the Memorandum, the advice of
its tax or other advisers, and independent investigations made by
the Participant in purchasing the Interests. No representations or
agreements other than those set forth in the Memorandum and the
Master Feeder Participation Agreement entered into by the
Participant and the Portfolio have been made to the Participant in
respect thereof.
6. The Participant agrees to notify the Trust promptly if there is any
change with respect to any of the information, representations, or
warranties contained herein and to provide such further information
as the Trust may reasonably request.
7. The Participant is duly formed and is validly existing and in good
standing under the laws of its jurisdiction of organization and has
all powers and is authorized, has taken all required action, and
otherwise has duly qualified to execute, deliver, and perform this
Application and Agreement and to purchase and hold the Interests,
and this Application and Agreement has been duly executed and
delivered by the Participant and constitutes the legal, valid, and
binding obligation of the Participant enforceable against the
Participant in accordance with its terms. The individual signing
this Application and Agreement on behalf of the Participant
represents that he or she has full power and authority to execute
and deliver this Application and Agreement in such capacity and on
behalf of the Participant.
III. MISCELLANEOUS
This Application and Agreement is not transferable or assignable by the
Participant except as may be provided herein, and any transfer or assignment in
violation of this provision shall be null and void.
These documents shall be governed by and construed in accordance with the laws
of the Commonwealth of Massachusetts, without reference to choice of law
doctrine.
A copy of the Declaration of Trust of the Trust is on file with the Secretary of
State of The Commonwealth of Massachusetts, and notice is hereby given that this
instrument is executed on behalf of the Trustees of the Trust as Trustees and
not individually, and that the obligations of or arising out of this instrument
are not binding upon any of the Trustees, officers, or shareholders individually
but are binding only upon the assets and property of the Portfolio.
17
----------------
IN WITNESS WHEREOF, the undersigned has executed this Application and Agreement
as of the date reflected below.
SSgA S&P 500 Index Fund, a series of the SSgA Funds
By
-------------------------
Name:
Title:
Date:
Accepted:
STATE STREET MASTER FUNDS
on behalf of State Street Equity 500 Index Portfolio
By
--------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: President
Date:
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