EXHIBIT (h)(iii)
PARTICIPANT AGREEMENT
This Participant Agreement (the "Agreement") is entered into by and
between State Street Capital Markets, LLC, (the "Distributor"), State Street
Bank and Trust Company, as transfer agent (the "Transfer Agent") and __________
(the "Participant") and is subject to acceptance by streetTRACKS(SM) Series
Trust (the "Trust"). The Trust is an open-end management investment company. The
Trust currently consists of ten investment portfolios (each a "Fund" and
collectively the "Funds"). The Trust was organized as a Massachusetts business
trust under a Declaration of Trust dated June 12, 1998, as amended and restated
on September 6, 2000. The Distributor has been retained to provide certain
services with respect to acting as principal underwriter of the Trust in
connection with the creation and distribution of shares the Funds (the
"Shares"). The Transfer Agent has been retained to provide certain services with
respect to the creation and redemption of Shares. As specified in the Trust's
prospectus and Statement of Additional Information (together, the "Prospectus"),
Shares may be created or redeemed only in aggregations of 50,000 Shares,
referred to therein and herein as a "Creation Unit". The Prospectus provides
that Creation Units be shall issued in exchange for Deposit Securities and a
Cash Component delivered by the Participant on behalf of the investor (which may
be the Participant) to the Trust. The Prospectus also provides that Creation
Units shall be redeemed in exchange for Fund Securities and a Cash Redemption
Amount. Capitalized terms not otherwise defined herein are used herein as
defined in the Prospectus.
This Agreement is intended to set forth certain premises and the
procedures by which the Participant may create and/or redeem Creation Units. To
place orders with the Distributor, an entity must be: (i) a broker-dealer or
other participant in the Continuous Net Settlement ("CNS") clearing process of
the National Securities Clearing Corporation ("NSCC") as such processes have
been enhanced to effect creations and redemptions of Creation Units, such
processes being referred to herein as the "Clearing Process", or (ii) outside
the Clearing Process (i.e., through the facilities of The Depository Trust
Company ("DTC"). The parties hereto in consideration of the premises and of the
mutual agreements contained herein agree as follows:
1. Status of Participant. The Participant hereby represents, covenants
and warrants that (i) with respect to orders for the creation or
redemption of Creation Units by means of the Clearing Process, it is a
member of NSCC and a participant in the CNS System of NSCC (as defined
in the Prospectus, a "Participating Party"); and (ii) with respect to
orders for the creation or redemption of Creation Units outside the
Clearing Process, it is a DTC Participant (as defined in the
Prospectus, a "DTC Participant"). The Participant may place orders for
the creation or redemption of Creation Units either through the
Clearing Process or outside the Clearing Process, subject to the
procedures for creation and redemption referred to in paragraph 2 of
this Agreement ("Execution of Orders"). Any change in the foregoing
status of Participant shall terminate this Agreement and Participant
shall give notice to the Distributor, Transfer Agent and the Trust of
such change.
2. Execution of Orders. All orders for the creation or redemption of
Creation Units shall be handled by each party hereto in accordance with
the terms of the Prospectus and the procedures described in Attachment
A to this Agreement. Each party hereto agrees to comply with the
provisions of such documents to the extent applicable to it. In the
event the procedures include the use of recorded telephone lines, the
Participant hereby consents to such use. The Trust reserves the right
to issue additional or other procedures relating to the manner of
creating or redeeming Creation Units and the Participant, the Transfer
Agent and the Distributor each agrees to comply with such procedures as
may be issued from time to time.
3. NSCC. Solely with respect to orders for the creation or redemption of
Creation Units through the Clearing Process, the Participant as a
Participating Party hereby authorizes the Transfer Agent to transmit to
NSCC on behalf of the Participant such instructions, including share
and cash amounts as are necessary with respect to the creation and
redemption of Creation Units consistent with the instructions issued by
the Participant to the telephone representative of the Distributor for
purchases and the telephone representative of the Transfer Agent for
redemption. The Participant agrees to be bound by the terms of such
instructions issued by the Transfer Agent (or the Distributor on behalf
of the Trust) and reported to NSCC as though such instructions were
issued by the Participant directly to NSCC.
4. Role of Participant. The Participant shall have no authority in any
transaction to act as agent of the Distributor, Transfer Agent or the
Trust.
5. Fees. In connection with the creation or redemption of Creation Units,
the Trust shall charge and the Participant agrees to pay on behalf of
the investor to the Trust the Transaction Fee prescribed in the
Prospectus applicable to creation or redemption through the Clearing
Process, or the Transaction Fee and such additional fee as may be
prescribed pursuant to the Prospectus applicable to creation or
redemption outside the Clearing Process. The Trust reserves the right
to adjust the Transaction Fee subject to any limitation as prescribed
in the Prospectus.
6. Authorized Persons. Concurrently with the execution of this Agreement
and from time to time thereafter, the Participant shall deliver to the
Distributor, the Transfer Agent and the Trust, duly certified as
appropriate by its secretary or other duly authorized official, a
certificate, in the form set forth in Attachment B, setting forth the
names and signatures of all persons authorized to give instructions
relating to activity contemplated hereby or any other notice, request
or instruction on behalf of the Participant (each an "Authorized
Person"). Such certificate may be accepted and relied upon by the
Distributor and the Trust as conclusive evidence of the facts set forth
therein and shall be considered to be in full force and effect until
delivery to the Distributor and the Trust of a superseding certificate
bearing a subsequent date. The Distributor shall issue to each
Authorized Person a unique personal identification number ("PIN
Number") by which such Authorized Person and the Participant shall be
identified and instructions issued by the Participant hereunder shall
be authenticated. Upon the termination or revocation of authority of
such Authorized Person by the Participant, the Participant shall give
immediate written notice of such fact to the Distributor and the Trust
and such notice shall be effective upon receipt by the Distributor and
the Trust.
7. Redemption. The Participant represents and warrants that it will not
obtain an Order Number (as described in Attachment A) for the purpose of
redeeming a Creation Unit unless it or the party for which it is acting,
as the case may be, first owns the requisite number of shares to be
redeemed as a Creation Unit.
8. Beneficial Ownership. The Participant represents and warrants to the
Distributor, Transfer Agent and the Trust that it does not hold for the
account of any single Beneficial Owner of shares of a given Fund of the
Trust 80 percent (80%) or more of outstanding shares of a given Fund of
the Trust such as to cause the respective Fund of the Trust to have a
basis in the Deposit Securities deposited with the Trust different from
the market value of such Deposit Securities on the date of such
deposit, pursuant to Section 351 of the Internal Revenue Code. The
Transfer Agent shall have the right to require information from the
Participant regarding share ownership, and to rely thereon to the
extent necessary to make a determination regarding ownership of 80
percent (80%) or more of outstanding shares of a given Fund of the
Trust by a Beneficial Owner as a condition to the acceptance of a Fund
Deposit.
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9. Indemnification. The Participant hereby agrees to indemnify and hold
harmless the Distributor, Transfer Agent and the Trust and their
respective subsidiaries, affiliates, directors, officers, employees and
agents (each an "Indemnified Party") from and against any loss,
liability, cost or expense suffered or incurred by such Indemnified
Party resulting from, in connection with or arising out of (i) any
breach by the Participant of any provision of this Agreement; or (ii)
any failure by Participant, for any reason, fraudulent, negligent or
otherwise to comply with its obligations under this Agreement, (iii)
any action undertaken in accordance with the terms at the direction of
or for the benefit of the Participant, or (iv) any actions of such
Indemnified Party in reliance upon any instructions issued in
accordance with Attachment A (as may be amended from time to time)
believed by the Distributor and/or Trust to be genuine and to have been
given by the Participant. This paragraph shall survive the termination
of this Agreement.
10. Additional Payment on Redemption. In the event that the Participant
receives Fund Securities the value of which exceeds net asset value at the
time of redemption, the Participant agrees to pay, on the same business
day it is notified, or cause the beneficial owner(s) of the shares
redeemed to pay, on such day, to the Trust an amount in cash equal to the
difference.
11. Acknowledgment. The Participant acknowledges receipt of the Prospectus
and represents it has reviewed such document and understands the terms
thereof. The Distributor agrees to process orders for creation in
accordance with the provisions of the Prospectus. The Transfer Agent
agrees to process orders for redemptions in accordance with the
provisions of the Prospectus.
12. Notices. Except as otherwise specifically provided in this Agreement,
all notices required or permitted to be given pursuant to this
Agreement shall be given in writing and delivered by personal delivery
or by postage prepaid registered or certified United States first class
mail, return receipt requested, or by telex, telegram or facsimile or
similar means of same day delivery (with a confirming copy by mail as
provided herein). Unless otherwise notified in writing, all notices to
the Trust shall be given or sent as follows: State Street Bank and
Trust Company, Global Client Support, X.X. Xxx 0000, Xxxxxx, XX 00000,
Attn.: streetTRACKS(SM) Trust.
All notices to the Participant and the Distributor or the Transfer Agent,
as the case may be, shall be directed to the address or telephone,
facsimile or telex numbers indicated below the signature line of such
party.
13. Termination and Amendment. This Agreement shall become effective in
this form as of the date accepted by the Trust and may be terminated at
any time by any party upon thirty days prior notice to the other
parties (i) unless earlier terminated by the Trust in the event of a
breach of this Agreement or the procedures described herein by the
Participant or (ii) in the event that the Trust is terminated pursuant
to the Trust's Declaration of Trust, filed June 12, 1998, as amended
and restated on September 6, 2000. This Agreement supersedes any prior
such agreement between the parties. This Agreement may be amended by
the Trust from time to time by the following procedure. The Trust will
mail a copy of the amendment to the Distributor, the Transfer Agent and
the Participant. If neither the Distributor, the Transfer Agent nor
the Participant objects in writing to the amendment within ten days
after its receipt, the amendment will become part of this Agreement in
accordance with its terms.
14. Limitation of Liability. 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
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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.
15. Counterparts. This Agreement may be simultaneously executed in several
counterparts, each of which shall be an original and all shall
constitute but one and the same instrument.
16. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of The Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the _________ day of _______________ , 200__ .
STATE STREET CAPITAL MARKETS, LLC
BY: _______________________________
TITLE: _______________________________
ADDRESS: _______________________________
TELEPHONE: _______________________________
FACSIMILE: _______________________________
TELEX: _______________________________
STATE STREET BANK AND TRUST COMPANY
BY: _______________________________
TITLE: _______________________________
ADDRESS: _______________________________
TELEPHONE: _______________________________
FACSIMILE: _______________________________
TELEX: _______________________________
BY: _______________________________
TITLE: _______________________________
ADDRESS: _______________________________
TELEPHONE: _______________________________
FACSIMILE: _______________________________
TELEX: _______________________________
ACCEPTED BY:
streetTRACKS(SM) SERIES TRUST
BY: _______________________________
TITLE: _______________________________
ATTACHMENT A
This document supplements the Prospectus with respect to the procedures to
be used by (i) the Distributor in processing an order for the creation of
Creation Units of each series of streetTRACKS(SM) Series Trust (each a "Fund")
and (ii) the Transfer Agent in processing an order for redemption of Creation
Units. To accommodate Participants with restricted securities in the standard
basket, State Street has developed custom creation and redemption baskets. For a
Participant to transact in a custom basket, the Participant must acknowledge the
additional procedures described in Appendix 1 relating to custom baskets.
A Participant is required to have signed the Participant Agreement. Upon
acceptance of the Participant Agreement by the Trust, the Distributor will
assign a personal identification number to each Authorized Person authorized to
act for the Participant. This will allow a Participant through its Authorized
Person(s) to place an order with respect to Creation Units.
TO PLACE AN ORDER FOR CREATION OR REDEMPTION OF CREATION UNITS
1. Call to Receive an Order Number. For Creations, an Authorized Person
for the Participant will call the telephone representative at
0-000-000-0000 not later than the closing time of the regular trading
session on the New York Stock Exchange (the "NYSE Closing Time")
(ordinarily 4:00 p.m. New York time) to receive an Order Number. For
Redemptions, an Authorized Person for the Participant will call the
telephone representative at 0-000-000-0000 not later than the NYSE
Closing Time to receive an Order Number.
Upon verifying the authenticity of the caller (as determined by the use of
the appropriate PIN Number) and the terms of the order, the telephone
representative will issue a unique Order Number. All orders with respect
to the creation or redemption of Creation Units are required to be in
writing and accompanied by the designated Order Number. Incoming telephone
calls are queued and will be handled in the sequence received. Calls
placed before the NYSE Closing Time will be processed even if the call is
taken after this cut-off time. ACCORDINGLY, DO NOT HANG UP AND REDIAL.
INCOMING CALLS THAT ARE ATTEMPTED LATER THAN THE NYSE CLOSING TIME WILL
NOT BE ACCEPTED.
NOTE THAT THE TELEPHONE CALL IN WHICH THE ORDER NUMBER IS ISSUED INITIATES
THE ORDER PROCESS BUT DOES NOT ALONE CONSTITUTE THE ORDER. AN ORDER IS
ONLY COMPLETED AND PROCESSED UPON RECEIPT OF WRITTEN INSTRUCTIONS
CONTAINING THE DESIGNATED ORDER NUMBER AND PIN NUMBER AND TRANSMITTED BY
FACSIMILE OR TELEX (the "Order").
2. Place the Order. An Order Number is only valid for a limited time.
The Order for creation or redemption of Creation Units must be sent by
facsimile or telex to the telephone representative within 20 minutes of
the issuance of the Order Number. In the event that the Order is not
received within such time period, the telephone representative will
attempt to contact the Participant to request immediate transmission of
the Order. Unless the Order is received by the telephone
representative upon the earlier of (i) within 15 minutes of contact
with the Participant or (ii) 45 minutes after the NYSE Closing Time,
the order will be deemed invalid.
3. Await Receipt of Confirmation.
A. Clearing Process. The Distributor (in the case of creations) or the
Transfer Agent (in the case of redemptions) shall issue a
confirmation of Order acceptance within 15 minutes of
its receipt of an Order received in good form. In the event the
Participant does not receive a timely confirmation from the
Distributor or the Transfer Agent, it should contact the telephone
representative at the business number indicated.
B. Outside the Clearing Process. In lieu of receiving a
confirmation of Order acceptance, the DTC Participant will
receive an acknowledgment of Order acceptance. The DTC
Participant shall deliver on trade date plus one the Deposit
Securities and Cash Component (in the case of creations) or the
Creation Unit size aggregation of shares (in the case of
redemptions) to the Trust through DTC. The Trust shall settle
the transaction within three (3) Business Days.
4. Ambiguous Instructions. In the event that an Order contains terms that
differ from the information provided in the telephone call at the time
of issuance of the Order Number, the telephone representative will
attempt to contact the Participant to request confirmation of the terms
of the order. If an Authorized Person confirms the terms as they
appear in the Order then the order will be accepted and processed. If
an Authorized Person contradicts its terms, the Order will be deemed
invalid and a corrected Order must be received by the telephone
representative not later than the earlier of (i) within 15 minutes of
such contact with the Participant or (ii) 45 minutes after the NYSE
Closing Time. If the telephone representative is not able to contact
an Authorized Person, then the Order shall be accepted and processed in
accordance with its terms notwithstanding any inconsistency from the
terms of the telephone information. In the event that an Order
contains terms that are illegible, as determined in the sole discretion
of the Distributor (in the case of creations) or the Transfer Agent (in
the case of redemptions), the Order will be deemed invalid and the
telephone representative will attempt to contact the Participant to
request retransmission of the Order. A corrected Order must be
received by the telephone representative not later than the earlier of
(i) within 15 minutes of such contact with the Participant or (ii) 45
minutes after the NYSE Closing Time.
5. Processing an Order. The Distributor reserves the right to suspend an
Order in the event that its acceptance would appear to result in the
Participant or a Beneficial Owner owning 80 percent (80%) or more of
all outstanding shares of a given Fund. In such event, the telephone
representative will attempt to contact an Authorized Person for
purposes of confirmation of the fact that with respect to such
Participant no Beneficial Owner would own 80 percent (80%) or more of
all outstanding shares of a given Fund upon execution of the Order. In
the event that (i) the telephone representative is unable to contact an
Authorized Person or (ii) the Participant fails to transmit an
identical Order containing a representation and warranty as to such
fact, then the Order shall be deemed invalid.
6. Creation of Creation Units Prior to Receipt of Deposit Securities.
Creation Units of streetTRACKS(SM) Funds may be created in advance of
receipt by the Trust of all or a portion of the applicable Deposit
Securities, provided that the Participant deposits an initial deposit
of cash with the Trust having a value greater than the net asset value
of the shares on the date the order is placed in proper form. In
addition to available Deposit Securities, cash must be deposited in an
amount equal to the sum of (i) the Cash Component, plus (ii) 115% of
the market value of the undelivered Deposit Securities (the "Additional
Cash Deposit"). The order shall be deemed to be received on the
Business Day on which the order is placed provided that the order is
placed in proper form prior to 4:00 p.m. eastern time such date and
federal funds in the appropriate amount are deposited with the Trust's
Custodian by 11:00 a.m. eastern time the following Business Day. If
the order is not placed in proper form by 4:00 p.m. eastern time or
federal funds in the appropriate amount are not received by 11:00 a.m.
eastern time the next Business Day, then the order may be deemed to be
rejected and the investor shall be liable to the Trust for losses, if
any,
resulting therefrom. An additional amount of cash shall be required to be
deposited with the Trust, pending delivery of the missing Deposit
Securities to the extent necessary to maintain an amount of cash on
deposit with the Trust at least equal to 115% of the daily marked to
market value of the missing Deposit Securities. To the extent that missing
Deposit Securities are not received by 1:00 p.m. eastern time on the third
Business Day following the day on which the purchase order is deemed
received by the Distributor or in the event a xxxx to market payment is
not made within one Business Day following notification by the Distributor
that such a payment is required, the Trust may use the cash on deposit to
purchase the missing Deposit Securities. The Participant will be liable to
the Trust for the costs incurred by the Trust in connection with any such
purchases. These costs will be deemed to include the amount by which the
actual purchase price of the Deposit Securities exceeds the market value
of such Deposit Securities on the day the purchase order was deemed
received by the Distributor plus the brokerage and related transaction
costs associated with such purchases. The Trust will return any unused
portion of the Additional Cash Deposit once all of the missing Deposit
Securities have been properly received by the Custodian or purchased by
the Trust and deposited into the Trust. The Trust shall charge and the
Participant agrees to pay to the Trust the Transaction Fee prescribed in
the Prospectus applicable to creation or redemption through the Clearing
Process, or the Transaction Fee and such additional fee as may be
prescribed pursuant to the Prospectus applicable to creation or redemption
outside the Clearing Process. The delivery of Creation Units of the
streetTRACKS(SM) Funds so created will occur no later than the third
Business Day following the day on which the purchase order is deemed
received by the Distributor.
APPENDIX 1 -- PROCEDURES SPECIFIC TO CUSTOM BASKETS
To accommodate Participants with restricted securities in the standard
basket of a Fund, State Street has developed custom creation and redemption
baskets (the "Custom Baskets"). Custom Baskets are intended to allow
Participants with restricted issues in a particular Fund, to transact in that
Fund using the Custom Basket process. The Custom Basket process substitutes
cash-in-lieu for the restricted securities and continues to settle through the
standard CNS process at NSCC. It is the responsibility of the Participant to
apply to the NSCC by contacting DTCC Participant Services at 000-000-0000 to
allow them to receive Custom Baskets as well as the regular daily standard
baskets (the "Standard Baskets"). To ensure proper tracking of the Fund to its
benchmark index the following guidelines must be followed when transacting
Custom Baskets:
1. On or before T-1, the Participant must request a Custom Basket from the
Transfer Agent by calling 0-000-000-0000. The Transfer Agent will fax
a standard form (see attached) on which the Participant must identify
the restricted securities to be omitted from the creation or redemption
basket. At this time, the Participant is limited to substituting
cash-in-lieu only for restricted issues. Participants may request that
the Custom Basket be available for creations and redemptions for a
one-time transaction, a specific period or indefinitely. The Trust
will review the Custom Basket request and, if approved, will deliver a
confirmation back to the Participant. In the event subsequent
additions and/or deletions to restricted issues are required to change
the custom basket already approved, the Participant is responsible for
completing a new standard form with the Transfer Agent.
2. On trade date, prior to the opening of the NYSE, State Street will notify
NSCC as to the components of the approved Custom Baskets available that
day along with the components of the Standard Basket. Each Custom Basket
will be identified by a separate NSCC assigned instruction CUSIP.
3. On trade date, the Participant will follow the directions regarding
placing orders outlined in Attachment A. A Participant wishing to
create or redeem a Custom Basket must identify the custom CUSIP on the
order form in the blank provided. Orders received without a custom
CUSIP indicated will be processed as orders for Standard Baskets.
Participants placing orders for Custom Baskets must note that the
cut-off-time to create and redeem a Custom Basket will be 3:00 p.m. New
York time. ORDERS FOR CUSTOM BASKETS WILL NOT BE PROCESSED IF RECEIVED
BY STATE STREET AFTER 3:00 P.M. NEW YORK TIME. The Participant must
transact on the Standard Basket after 3:00 p.m. New York time.
IN WITNESS WHEREOF, the Participant acknowledges that he or she has read
the procedures relating to Custom Baskets and agrees to comply with all such
procedures. Failure to comply with the Custom Basket procedures will require the
transaction to be effected in Standard Basket.
PARTICIPANT: __________________________________
BY: __________________________________
TITLE: __________________________________
ADDRESS: __________________________________
TELEPHONE: __________________________________
FACSIMILE: __________________________________
TELEX: __________________________________
Date: _____________________________
ATTACHMENT B
The following individuals are Authorized Persons pursuant to Section 6
of the Participant Agreement between State Street Capital Markets, LLC, State
Street Bank and Trust Company and [ ]
[ ]
By: __________________________
