EXHIBIT (h)(10)
MASTER FEEDER PARTICIPATION AGREEMENT
BETWEEN
Xxxxxxxxx Global Funds
AND
STATE STREET MASTER FUNDS
DATED AS OF
April 20, 2009
THIS AGREEMENT is made and entered into as of the 20th day of April 2009,
by and between Xxxxxxxxx Global Funds (the "Company"), a Delaware business
trust, on behalf of its series Xxxxxxxxx Money Market Fund (the "Feeder Fund")
and State Street Master Funds (the "Trust"), a trust organized under the common
law of the Commonwealth of Massachusetts, on behalf of its series State Street
Money Market Portfolio (the "Master Portfolio").
WITNESSETH
WHEREAS, the Company and Trust are each open-end management investment
companies and the Feeder Fund and the Master Portfolio have the same investment
objectives and substantively the same investment policies;
WHEREAS, the Feeder Fund desires to invest all of the its investable assets
in the Master Portfolio in exchange for a beneficial interest in the Master
Portfolio (the "Investment") on the terms and conditions set forth in this
Agreement;
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:
I
THE INVESTMENT
1.1 The Feeder Fund will invest all of its investable assets in the Master
Portfolio and, in exchange therefor, the Master Portfolio agrees to issue to the
Feeder Fund a beneficial interest in the Master Portfolio equal in value to the
net value of the assets of the Feeder Fund conveyed to the Master Portfolio (the
"Account"). The Feeder Fund may add to or reduce its investment in the Master
Portfolio in the manner described in the Master Portfolio's registration
statement on Form N-1A, as it may be amended from time to time (the "Master
Portfolio's N-1A"). The Feeder Fund's aggregate interest in the Master Portfolio
would then be recomputed in accordance with the method described in the Master
Portfolio's N-1A.
1.2 On each date of Investment, the Feeder Fund shall authorize the Feeder
Fund's custodian to deliver all of the assets held by such custodian to the
Master Portfolio's custodian. The Master Portfolio's custodian shall acknowledge
its acceptance of the assets. In addition, each party shall deliver to the other
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 Company on behalf of the Feeder Fund represents and warrants to the
Trust and the Master Portfolio (which representations and warranties shall be
deemed made at and as of this date and at and as of all times when this
Agreement is in effect) that:
(a) The Feeder Fund is a series of the Company, which is a business
trust duly organized and validly existing under the laws of the State of
Delaware, 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) The execution and delivery of this Agreement by the Company on
behalf of the Feeder Fund and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the
Feeder Fund by the Company's Board of Trustees and no other action or proceeding
is necessary for the execution and delivery of this Agreement by the Company,
the performance by the Company of its obligations hereunder and the consummation
by the Company on behalf of the Feeder Fund of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Company on
behalf of the Feeder Fund and constitutes a legal, valid and binding obligation
of the Feeder Fund, enforceable against it in accordance with its terms.
(c) Neither the Company nor the Feeder Fund is 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) The fiscal year end for the Feeder Fund is December 31.
(e) The Feeder 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") or the Investment Company Act of 1940, as amended (the
"1940 Act" and, together 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 to comply in all material respects with the requirements of the
Securities Laws, as applicable, and the rules and regulations of the Securities
and Exchange Commission (the "SEC") thereunder, and did not at the time of their
filing 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; provided that the Company on behalf of the Feeder Fund
makes no representation or warranty with respect to information supplied by the
Master Portfolio or any agent of the Master Portfolio for use in the Company's
filings including, but not limited to, any written information contained in the
Master Portfolio's N-1A.
(f) The Company is duly registered as an open-end management
investment company under the 1940 Act and the Feeder 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
effect. The Company is and will at all times when the Feeder Fund owns or
purchases interests in the Master Portfolio be registered as an open-end
investment company under the 0000 Xxx.
(g) The Company on behalf of the Feeder Fund understands and agrees
that the interests in the Master Portfolio (the "Interests") have not been
registered and will not be registered under the 1933 Act or any state securities
law, and that the Interests offered and the offering of the Interests
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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 Company on behalf of the Feeder Fund
acknowledges that the sale of interests is being made privately by the Master
Portfolio pursuant to the private placement exemption from registration provided
by Section 4(2) of the 1933 Act.
(h) The Company on behalf of the Feeder Fund acknowledges that it has
received copies of the Offering Memorandum of the Master Portfolio (the
"Memorandum") and of the Master Portfolio's Declaration of Trust and By-Laws.
The Company on behalf of the Feeder Fund has read, understands, and is fully
familiar with each of those documents and has received adequate information
concerning all matters that the Feeder Fund considers material to a decision to
purchase the Interests.
(i) The Interests subscribed for will be acquired solely by and for
the account of the Feeder Fund, solely for investment, and are not being
purchased for resale or distribution. The Company on behalf of the Feeder Fund
has no existing or contemplated agreement or arrangement with any person to
sell, exchange, transfer, assign, pledge, or otherwise dispose of the Interests.
The Company on behalf of the Feeder Fund acknowledges and agrees that the
interests are non-transferable.
(j) The Company on behalf of the Feeder Fund has relied solely upon
the Memorandum, the advice of its tax or other advisers, and independent
investigations made by the Feeder Fund in purchasing the Interests. No
representations or agreements other than those set forth in the Memorandum have
been made to the Feeder Fund by the Master Portfolio.
(k) The Company has in force an errors and omissions policy with
respect to the Feeder Fund covering losses for negligent and wrongful acts in a
commercially reasonable amount provided that such insurance may be joint with
other entities and the coverage may apply in the aggregate to all insureds, and
a fidelity bond in an amount consistent with the requirements of the 0000 Xxx.
2.2 The Trust on behalf of the Master Portfolio represents and warrants to
the Company and the Feeder Fund (which representations and warranties shall be
deemed made at and as of this date and at all times when this Agreement is in
effect) that:
(a) The Master Portfolio is a series of the State Street Master Funds,
a trust duly organized and validly existing under the Commonwealth of
Massachusetts, which 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) The execution and delivery of this Agreement by the Trust and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Trust by its Board of Trustees and no
other action or proceeding is necessary for the execution and delivery of this
Agreement by the Trust, the performance by the Trust of its obligations
hereunder and the consummation by the Trust of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Trust and
constitutes a legal, valid and binding obligation of the Trust, enforceable
against it in accordance with its terms.
(c) The issuance by the Master Portfolio of the Interests in exchange
for the Investment by the Feeder Fund of its assets has been duly authorized by
all necessary action on the part of the Board of Trustees of the Trust. When
issued in accordance with the terms of this Agreement, the Interests will be
validly issued, fully paid and non-assessable by the Master Portfolio.
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(d) Neither the Trust nor the Master Portfolio is 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) The fiscal year end of the Master Portfolio is December 31.
(f) The Master Portfolio is taxable as a partnership for federal
income tax purposes under the Internal Revenue Code of 1986, as amended.
(g) The Master Portfolio has duly filed all SEC Filings required to be
filed with the SEC pursuant to the 1934 Act and 1940 Act in connection with any
meetings of its investors or its registration as an investment company.
Interests in the Master Portfolio are not required to be registered under the
1933 Act in reliance on Section 4(2) of the 1933 Act, and the Master Portfolio
has duly filed any SEC Filings required to be filed in connection with such
exemption. The SEC Filings were prepared to comply in all material respects 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) The Trust is duly registered as an open-end management investment
company under the 1940 Act and such registration is in full force and effect.
(i) The Trust has in force an errors and omissions policy with respect
to the Master Portfolio covering losses for negligent and wrongful acts in a
commercially reasonable amount provided that such insurance may be joint with
other entities and the coverage may apply in the aggregate to all insureds, and
a fidelity bond in an amount consistent with the requirements of the 1940 Act.
III
COVENANTS AND INDEMNIFICATION
3.1 The Company on behalf of the Feeder Fund covenants that:
(a) Except as otherwise permitted under 12(d)(1)(E) of the 1940 Act,
or interpretations, orders or no-action positions issued by the SEC or its
staff, as the case may be, the Feeder Fund will own no investment security other
than its Account in the Master Portfolio for all periods during which this
Agreement is in effect.
(b) If requested to vote on matters pertaining to the Master
Portfolio, the Feeder Fund will (i) call a meeting of shareholders of the Feeder
Fund for the purpose of seeking instructions from shareholders regarding such
matters, (ii) vote the Feeder Fund's Interests proportionally as instructed by
Feeder Fund shareholders, and (iii) vote the Feeder Fund's Interests with
respect to the shares held by Feeder Fund shareholders who do not give voting
instructions in the same proportion as the shares of Feeder Fund shareholders
who do give voting instructions. The Feeder Fund will hold each such meeting of
Feeder Fund shareholders in accordance with a timetable reasonably agreed upon
between the Company and the Master Portfolio.
(c) The Feeder Fund will furnish the Master Portfolio, at least five
(5) business days prior to filing or first use, as the case may be, with drafts
of amendments to its registration statement on Form N-lA and prospectus
supplements or amendments relating to the Feeder Fund. The Feeder Fund will
furnish the Master Portfolio with any proposed advertising or sales literature
relating to the Feeder Fund at least three (3) business days prior to filing or
first use; provided, however, that such advance
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notice shall not be required for advertising or sales literature that merely
references the name of the Feeder Fund. The Master Portfolio agrees to provide
comments on such materials, if any, on a timely basis as agreed by the parties.
The Feeder Fund agrees that it will include in all such Feeder Fund documents
any disclosures that may be required by law and it will include in all such
Feeder Fund documents any material comments reasonably made by the Master
Portfolio and its counsel with respect to disclosure concerning the Master
Portfolio. The Master Portfolio will, however, in no way be liable for any
errors or omissions in such documents, whether or not it makes any objection
thereto, except to the extent such errors or omissions result from information
provided in writing by the Master Portfolio specifically for use therein. The
Feeder Fund will not make any other written or oral representation about the
Master Portfolio without its prior written consent.
(d) The Company shall comply in all material respects with all
applicable laws, rules, and regulations in connection with the operations of the
Feeder Fund as a registered investment company, including the requirements of
the USA PATRIOT ACT of 2001 and its implementing rules and regulations ("AML
Laws"). The Company on behalf of the Feeder Fund shall provide such
documentation as shall be reasonably requested by the Master Portfolio that
demonstrates the compliance of the Feeder Fund, or its service providers on its
behalf, as the case may be, with the with AML Laws.
(e) The Feeder Fund 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.
3.2 The Trust on behalf of the Master Portfolio covenants that:
(a) The Trust shall promptly provide all signature pages for the
Company required for inclusion in any SEC Filings of the Feeder Fund, provided
that the Feeder Fund is in material compliance with its covenants and
obligations under this Agreement and that such SEC filings are provided to the
Trust as soon as reasonably practicable prior to the filing date. The Company
acknowledges that the provision of such signature pages does not constitute a
representation that such SEC Filing complies with the Securities Laws or does
not contain any untrue statement of a material fact or does not omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, except with respect to information provided by the Master Portfolio
or its agents for inclusion in such SEC Filing, which shall in any event include
any written information obtained from the Master Portfolio N-1A.
(b) The Trust shall furnish to the Company, at least twenty (20)
business days prior to filing any amendments to its registration statement on
Form N-1A that relate to the Master Portfolio, unless provision of such
amendments is impracticable under the circumstances, in which case it shall be
provided as soon as reasonably practicable. The Trust shall provide the Company
with reasonable advance written notice of (1) any change in the Master
Portfolio's investment objective, (2) any material changes in the Master
Portfolio's investment policies or activities, (3) any material increase in the
Master Portfolio's fees and expenses including as a result of the termination or
change of any expense waiver or reimbursement agreement, (4) any change in the
Master Portfolio's fiscal year end, or (5) any change in the time for
calculating the net asset value of the Master Portfolio. The Trust shall provide
the Company with notice of any change in the Trust's registered public
accountants as soon as reasonably practicable.
(c) The Master Portfolio has and will continue to qualify to be
taxable as a partnership under the Code for federal income tax purposes for all
periods during which this Agreement is in effect. The Master Portfolio satisfies
and will continue to satisfy (i) the income test imposed on regulated investment
companies under Section 851(b)(2) of the Code, and (ii) the diversification test
5
imposed on regulated investment companies under Section 851(b)(3) of the Code as
if such sections applied to it for so long as this Agreement remains in effect.
(d) Interests in the Master Portfolio have and will continue to be:
(i) offered and sold solely in private placement transactions which do not
involve any "public offering" within the meaning of Section 4(2) of the 1933
Act, and (ii) are either noticed or qualified for sale or exempt from such
notice or qualification requirements under applicable securities laws in those
states of jurisdictions in which they are offered and sold.
(e) The Master Portfolio shall at all times effect redemptions of
Interests in accordance with the 1940 Act and the rules and regulations
thereunder, the Master Portfolio N-1A and the organizational documents of the
Trust. Redemption requests, other than a withdrawal of the Feeder Fund's entire
investment in the Master Portfolio, typically will be effected in cash, but the
Trust reserves the right to make redemptions of securities in kind as described
in the Master Portfolio's current Prospectus. The Master Portfolio shall use its
best efforts to settle redemptions on the next business day following the
receipt of the redemption request and if such next business day settlement is
not practicable, will immediately notify the Feeder Fund of the anticipated
settlement date, which shall in all events be a date permitted by the 1940 Act.
(f) The Master Portfolio, or its designee, shall notify the Feeder
Fund, or its designee, of the Master Portfolio's NAV and the Feeder Fund's pro
rata portion of income, expenses, and realized and unrealized gains and losses
of the Master Portfolio for that business day by 6:00 pm EST on a best effort
basis. Such information shall be accurate, true and complete in all material
respects.
(g) The Master Portfolio has and will continue to comply in all
respects with the provisions of Rule 2a-7 under the 1940 Act and has adopted
written procedures in accordance with that rule. The Master Portfolio shall
provide such certifications and information, in such form and for periods as is
agreed to by the parties, to demonstrate the Master Portfolio's compliance with
the provisions of Rule 2a-7, but in no case will the provision of such materials
occur before the Trust's Board of Trustees has received the information
contained in such materials. To the extent that Rule 2a-7 requires reporting of
any event to the Board of Trustees of the Master Portfolio, the Master Portfolio
shall provide notice of such event to the Feeder Fund as soon as reasonably
practicable after notice is provided to the Board of Trustees of the Trust. The
Master Portfolio shall provide such reports as agreed to by the parties, to
enable Feeder Fund to fulfill the responsibilities of its Board of Trustees
under Rule 2a-7 including, without limitation, shadow pricing reports pursuant
to Rule 2a-7 at such intervals as agreed to by the parties.
(h) The Trust shall comply in all material respects with all
applicable laws, rules and regulations applicable to the operations of the
Master Portfolio as a registered investment company.
(i) The Master Portfolio agrees to notify the Company 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
Company may reasonably request.
6
3.3 Each party covenants that it will cooperate with the other to provide
any such information as may be requested by the other (i) during the course of
an SEC or other regulatory exam, (ii) to complete its year-end audit, or (iii)
to complete any SEC Filings, as previously defined.
3.4 Indemnification by Feeder Fund.
(a) The Feeder Fund will indemnify and hold harmless the Master
Portfolio, and the Trust and its respective trustees, directors, officers and
employees and each other person who controls the Master Portfolio, 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 cost of investigating
and defending against any claims therefor and any counsel fees and expenses
incurred in connection therewith), joint or several, that
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement, any prospectus, or any amendment thereof or supplement thereto, or
any advertisement or sales literature, or any other document or publication
filed, created, or published or otherwise disseminated by the Feeder Fund, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Feeder Fund will
not be liable in any such case to the extent that such Liability arises out of
or is based upon any untrue statement or omission in or from any thereof in
reliance upon and in conformity with written information furnished to the Feeder
Fund by the Master Portfolio specifically for use therein; or
(ii) result from the failure of any representation or warranty
made by the Company on behalf of the Feeder Fund to be accurate when made or the
failure of the Company or the Feeder Fund to perform any covenant contained
herein or to otherwise comply with the terms of this Agreement.
(iii) arise out of any failure of the Company, with respect to
the Feeder Fund, or any director, officer, employee or agent of the Company,
with respect to the Feeder Fund, to comply with any applicable law.
(b) The Feeder 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 Feeder Fund elects to assume the
defense, such defense shall be conducted by counsel chosen by the Feeder Fund
and reasonably acceptable to the Master Portfolio. In the event the Feeder 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
Feeder Fund shall have specifically authorized the retaining of such counsel or
(B) the parties to such suit include any Covered Person and the Feeder 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 Feeder Fund, in
which case the Feeder 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 Feeder Fund shall not be liable to indemnify any Covered Person for
any settlement of any claim effected without the Feeder 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 Feeder Fund
might otherwise have to a Covered Person.
7
3.5 Indemnification by the Master Portfolio.
(a) The Master Portfolio will indemnify and hold harmless the Feeder
Fund and the Company and its respective directors, officers and employees and
each other person who controls the Feeder 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; that
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Master
Portfolio's N-1A, any prospectus or offering memorandum, or any amendment
thereon or supplement thereto or any sales literature, or any other documents or
publication filed, created, or published or otherwise disseminated by the Trust
or Master Portfolio, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Master Portfolio will not be liable in any such case to the extent that any
such Liability arises out of or is based upon any untrue statement or omission
in or from any such document made in reliance upon and in conformity with
written information furnished to the Master Portfolio by the Feeder Fund
specifically for use therein (for this purpose, information of any kind
contained in any filing by the Feeder Fund with the Securities and Exchange
Commission, other than information furnished by the Master Portfolio, being
deemed to have been so furnished to the Master Portfolio); or
(ii) result from the failure of any representation or warranty
made by the Master Portfolio to be accurate when made or the failure of the
Master Portfolio to perform any covenant contained herein or to otherwise comply
with the terms of this Agreement.
(iii) arise out of any failure of the Trust, with respect to the
Master Portfolio, or any director, officer, employee or agent of the Trust, to
comply with any applicable law.
(b) The Master 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 Master Portfolio elects to
assume the defense, such defense shall be conducted by counsel chosen by the
Master Portfolio. In the event that the Master 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 Master Portfolio shall have
specifically authorized the retaining of such counsel or (B) the parties to such
suit include any Covered Person and the Master 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 Master Portfolio, in which case
the Master 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 Master Portfolio shall not be liable to indemnify any Covered Person for any
settlement of any claim affected without the Master 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 Master
Portfolio might otherwise have to a Covered Person.
3.6 Allocation of Losses.
(a) If the indemnification provided for in Section 3.2 or Section 3.3
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
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contribute to the aggregate amount of 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 Feeder Fund and the Master
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 Feeder Fund and the Master 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 Feeder Fund or the Master Portfolio and the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission.
(c) The Feeder Fund and the Master Portfolio agree that it would not
be just and equitable if contribution pursuant to this Section 3.4 were
determined by any method of allocation which does not take account of the
equitable considerations referred to above in this Section 3.4. The aggregate
amount of losses, claims, demands, damages, liabilities, and expenses incurred
by a Covered Person and referred to above in this Section 3.4 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 and
expenses incurred in connection therewith.
(d) For purposes of this Section 3.4, each person, if any, who
controls the Feeder Fund or the Master 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 Feeder Fund or the
Master Portfolio, as the case may be, and each director or trustee, officer, or
employee of the Trust or the Company and each officer thereof who signed a
registration statement shall have the same rights to contribution as the Feeder
Fund or the Master Portfolio, as the case may be.
IV
ADDITIONAL AGREEMENTS
4.1 Each party agrees that it shall hold in strict confidence all data and
information, including any and all portfolio holdings information, obtained from
the other party (unless such information is or becomes readily 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 Feeder Fund's or Master Portfolio's respective auditors,
legal counsel, independent legal counsel to the independent trustees, 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.
4.2 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.
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V
TERMINATION, AMENDMENT AND WAIVER
5.1 Termination.
(a) This Agreement may be terminated by the Company upon not less than
five (5) business days notice to the Trust.
(b) This Agreement may be terminated at any time by the Company by
withdrawing all of the Feeder Fund's Interest in the Master Portfolio.
(c) This Agreement may be terminated by the Trust on not less than 120
days' prior written notice to the Company.
(d) This Agreement may be terminated by either party at any time
immediately upon written notice to the other parties in the event that formal
proceedings are instituted against the other 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 and contribution obligations set forth in
Article III and the confidentiality provisions in Section 4.1 shall survive the
termination of this Agreement.
5.2 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.
VI
GENERAL PROVISIONS
6.1 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 Feeder Fund:
000 X. Xxxxxxxx Xxx; Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Secretary
If to the Master Portfolio:
State Street Master Funds
c/o State Street Bank and Trust Company
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Either 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.
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6.2 Unless stated otherwise herein, all costs and expenses associated with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such costs and expenses.
6.3 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.
6.4 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 acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
6.5 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.
6.6 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.
6.7 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.
6.8 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.
6.9 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.
6.10 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.
6.11 Each party expressly acknowledges the provision in the Articles of
Incorporation of the Company and the Declaration of Trust of the Trust limiting
the personal liability of shareholders and the officers and trustees of the
Company and the Master Portfolio, respectively.
6.12 The parties hereto agree and acknowledge that (a) the Company has
entered into this Agreement solely on behalf of the Feeder Fund and that no
other party shall have any obligation hereunder with respect to any liability of
the Feeder Fund arising hereunder; (b) the Trust has entered into this Agreement
solely on behalf of the Master Portfolio and that no other series of the Trust
shall have any obligation hereunder with respect to any liability of the Master
Portfolio arising hereunder; and (c) no
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series or feeder participant of the Master Portfolio shall be liable to any
other series or feeder participant of the Master Portfolio.
6.13 It is expressly acknowledged and agreed that the obligations of the
Trust hereunder shall not be binding upon any of the interest holders, 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 this Agreement will be 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.
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.
XXXXXXXXX GLOBAL FUNDS
By: /s/ Xxxxx X. Xxxx
------------------------------------
Its: Vice President
STATE STREET MASTER FUNDS
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
Its: Secretary
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