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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 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Trust"), STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company having its principal office and place of business at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (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 Xxxxx U.S. Large-Cap Value Index Fund, streetTRACKS(SM) Dow
Xxxxx U.S. Large Cap Growth Index Fund, streetTRACKS(SM) Dow Xxxxx U.S. Small
Cap Value Index Fund, streetTRACKS(SM) Dow Xxxxx U.S. Small Cap Growth Index
Fund, streetTRACKS(SM) Dow Xxxxx Global Titans Index Fund, streetTRACKS(SM)
Wilshire REIT Index Fund, streetTRACKS(SM) Xxxxxx Xxxxxxx High Tech 35 Index
Fund, streetTRACKS(SM) Xxxxxx Xxxxxxx 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:
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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;
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(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
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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.
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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
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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.
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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
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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.
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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
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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.
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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.
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streetTRACKS(SM) SERIES TRUST
BY:/s/ Xxxxxxx X. Xxxxxxx
------------------------------
ATTEST: Treasurer
/s/ Xxxxx Xxxx
---------------------------------------
STATE STREET BANK AND TRUST
COMPANY (the "Bank")
BY:/s/ Xxxxxx Xxxxx
------------------------------
Executive Vice President
ATTEST:
/s/ Xxxxx Xxxxxx, VP & Associate Counsel
---------------------------------------
STATE STREET BANK AND TRUST
COMPANY ("the Adviser")
BY: /s/ Xxxxxxx Xxxxxxx
------------------------------
Executive Vice President
ATTEST:
/s/ Xxxxx Xxxx
---------------------------------------
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ANNEX A
streetTRACKS(SM) Dow Xxxxx U.S. Large-Cap Value Fund
streetTRACKS(SM) Dow Xxxxx U.S. Large-Cap Growth Fund
streetTRACKS(SM) Dow Xxxxx U.S. Small-Cap Value Fund
streetTRACKS(SM) Dow Xxxxx U.S. Small-Cap Growth Fund
streetTRACKS(SM) Dow Xxxxx Global Titans Index Fund
streetTRACKS(SM) Wilshire REIT Index Fund
streetTRACKS(SM) Xxxxxx Xxxxxxx High Tech 35 Index Fund
streetTRACKS(SM) Xxxxxx Xxxxxxx Internet Index Fund
The FORTUNE 500(R) Index Fund
The FORTUNE e-50(TM) Index Fund
Dated: September 22, 2000
