EXHIBIT 99.d(v)(D)
MASTER FEEDER PARTICIPATION AGREEMENT
AMONG
AMERICAN AADVANTAGE FUNDS,
AMERICAN AADVANTAGE MILEAGE FUNDS,
AND
STATE STREET EQUITY 500 INDEX PORTFOLIO
AND
SSGA FUNDS MANAGEMENT, INC.
DATED AS OF
MAY 1, 2001
AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of May 2001,
by and among American AAdvantage Funds and American AAdvantage Mileage Funds,
each organized as a Massachusetts business trust (each a "Trust" or,
collectively, the "Trusts"), on behalf of the American AAdvantage S&P 500 Index
Fund and the American AAdvantage S&P 500 Index Mileage Fund, respectively, (each
a "Fund" or, collectively, the "Funds"); State Street Equity 500 Index Portfolio
(the "Portfolio"), a series of the State Street Master Funds, a trust organized
under the common law of the Commonwealth of Massachusetts (the "Master Trust");
and SSgA Funds Management, Inc., a Massachusetts corporation (the "Adviser"),
with respect to the investment by the Funds in the Portfolio.
WITNESSETH
WHEREAS, the Funds and the Portfolio are each open-end management
investment companies and the Funds and the Portfolio have the same investment
objectives and substantively the same investment policies;
WHEREAS, the Adviser currently serves as the investment adviser of the
Portfolio and an affiliate of the Adviser previously served as the investment
adviser of the Portfolio; and
WHEREAS, the Funds invest all of their investable assets in the
Portfolio in exchange for a beneficial interest in the Portfolio (the
"Investments") on the terms and conditions set forth in this Agreement; and
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WHEREAS, the Portfolio believes that accepting the Investment is in the
best interests of the Portfolio and that the interests of existing investors in
the Portfolio will not be diluted as a result of its accepting the Investment;
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 Account. The Funds invest all of their investable assets in the
Portfolio and, in exchange therefor, the Portfolio has issued to each Fund a
beneficial interest in the Portfolio equal in value to the net value of the
assets of the Fund conveyed to the Portfolio (the "Interest"). Each Fund may add
to or reduce its Investment in the Portfolio in the manner described in the
Portfolio's registration statement on Form N-1A (the "Portfolio's N-1A"). Each
Fund's aggregate interest in the Portfolio would then be recomputed in
accordance with the method described in the Portfolio's N-1A.
1.2 Application. In connection with its initial Investment in the
Portfolio, each Fund has executed and delivered to the Portfolio an application
substantially in the form of Appendix A attached hereto.
1.3 Investment Date. The Investments, as described above, together with
related acts necessary to consummate such transactions, initially occurred on
March 1, 2000, and will occur at each subsequent date as the Funds desire to
make a further Investment in the Portfolio. All acts occurring on the date of
Investments shall be deemed to occur simultaneously as of the last daily
determination of the Portfolio's net asset value on the date of the Investments.
1.4 Related Matters. On each date of an Investment, the relevant Fund
shall authorize the Fund's custodian to deliver all of the assets held by such
custodian to the Portfolio's custodian. The Portfolio's custodian shall
acknowledge its acceptance of the assets. The Portfolio shall deliver to the
Fund acceptable evidence of the Fund's ownership of the Interest. In addition,
each party shall deliver to each other party such bills of sale, checks,
assignments, securities instruments, receipts or other documents as such other
party or its counsel may reasonably request.
II
REPRESENTATIONS AND WARRANTIES
2.1 The Trusts. Each Trust represents and warrants to the Portfolio:
(a) Organization. Each Trust is duly organized and validly
existing under the laws of the Commonwealth of Massachusetts as a Massachusetts
business trust. The Funds are duly and validly designated series of the Trusts
and have the requisite power and authority to
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own their property and conduct their business as now being conducted and as
proposed to be conducted pursuant to this Agreement.
(b) Authorization of Agreement. The execution and delivery of
this Agreement by the Trusts and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of each Trust by its respective Board of Trustees and no other action or
proceeding is necessary for the execution and delivery of this Agreement by each
Trust, the performance by each Trust of its obligations hereunder and the
consummation by each Fund of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by each Trust and constitutes a
legal, valid and binding obligation of each Fund, enforceable against it in
accordance with its terms.
(c) No Bankruptcy Proceedings. Neither 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) Fiscal Year. The fiscal year end for each Fund is December
31.
(e) Registration Statement. AMR Investment Services, Inc. and
counsel to the Trusts have reviewed the Portfolio's registration statement on
Form N-1A, as filed with the Securities and Exchange Commission ("SEC"), and
understand and agree to the Portfolio's policies and methods of operation as
described therein.
(f) Errors and Omissions Insurance Policy. The Trusts have in
force an errors and omissions liability insurance policy insuring the Funds
against loss up to $12.5 million for negligence or wrongful acts.
(g) SEC Filings. Each Fund has duly filed all forms, reports,
proxy statements and other documents (collectively, the "SEC Filings") required
to be filed under the Securities Act of 1933, as amended (the "1933 Act"), the
Securities Exchange Act of 1934 (the "1934 Act") and the Investment Company Xxx
0000 Act, as amended (the "1940 Act" and, collectively with the 1933 Act and the
1934 Act, the "Securities Laws") in connection with the registration of its
shares, any meetings of its shareholders and its registration as an investment
company. The SEC Filings were prepared in accordance with the requirements of
the Securities Laws, as applicable, and the rules and regulations of the SEC
thereunder, and do not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(h) 1940 Act Registration. Each Trust is duly registered as an
open-end management investment company under the 1940 Act and each 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.
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2.2 The Portfolio. The Portfolio represents and warrants to the Trusts
that:
(a) Organization. The Portfolio is a series of the Master Trust,
a duly organized and validly existing trust under the laws of the Commonwealth
of Massachusetts and has the requisite power and authority to own its property
and conduct its business as now being conducted and as proposed to be conducted
pursuant to this Agreement.
(b) Authorization of Agreement. The execution and delivery of
this Agreement by the Master Trust and the consummation of the transactions
contemplated hereby by the Portfolio have been duly authorized by all necessary
action on the part of the Portfolio by the Master Trust's Board of Trustees and
no other action or proceeding is necessary for the execution and delivery of
this Agreement by the Master Trust, the performance by the Portfolio of its
obligations hereunder and the consummation by the Portfolio of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Master Trust and constitutes a legal, valid and binding obligation of the
Portfolio, enforceable against it in accordance with its terms.
(c) Authorization of Issuance of Interest. The issuance by the
Portfolio of an Interest in exchange for the Investment by each Fund of its
assets has been duly authorized by all necessary action on the part of the Board
of Trustees of the Master Trust. When issued in accordance with the terms of
this Agreement, the Interest will be validly issued, fully paid and
non-assessable by the Portfolio.
(d) No Bankruptcy Proceedings. The Portfolio is not under the
jurisdiction of a court in a proceeding under Title 11 of the Bankruptcy Code or
similar case within the meaning of Section 368(a)(3)(A) of the Bankruptcy Code.
(e) Fiscal Year. The fiscal year end of the Portfolio is December
31.
(f) Auditors. The Portfolio has appointed Ernst & Young LLP as
the Portfolio's independent public accountants to certify the Portfolio's
financial statements in accordance with Section 32 of the 1940 Act.
(g) Registration Statement. The Portfolio has reviewed each
Fund's registration statement on Form N-1A, as filed with the SEC, and
understands and agrees to each Fund's policies and methods of operation as
described therein.
(h) Errors and Omissions Insurance Policy. The Master Trust has
in force an errors and omissions liability insurance policy insuring it against
loss of at least $5 million for negligence or wrongful acts.
(i) SEC Filings. The Portfolio has duly filed all SEC Filings
required to be filed with the SEC pursuant to the 1934 Act and the 1940 Act in
connection with any meetings of its investors and its registration as an
investment company. Beneficial interests in the Portfolio are not required to be
registered under the 1933 Act because such interests are offered solely in
private placement transactions that do not involve any "public offering" within
the meaning of
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Section 4(2) of the 1933 Act. The SEC Filings were prepared in accordance with
the requirements of the Securities Laws, as applicable, and the rules and
regulations of the SEC thereunder, and do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(j) 1940 Act Registration. The Portfolio is duly registered as an
open-end management investment company under the 1940 Act and such registration
is in full force and effect.
(k) Tax Status. The Portfolio is taxable as a partnership under
the Internal Revenue Code of 1986, as amended (the "Code").
(l) Pricing Procedures. The Portfolio has adopted pricing and
valuation procedures that comply with the 1940 Act.
(m) In-Kind Redemption Procedures. The Portfolio has adopted
in-kind redemption procedures that comply with the 1940 Act and any
interpretations related thereto issued by the SEC staff.
2.3 The Adviser. The Adviser represents and warrants to the Funds that:
(a) Organization. The Adviser is a Massachusetts corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and has the requisite power and authority to
conduct its business as now being conducted. On April 30, 2001, the Adviser
received a parent guarantee from State Street Corporation (the "Parent
Guarantee"), the parent company of the Adviser and State Street Bank and Trust
Company. Subject to the terms and conditions described in the Parent Guarantee,
State Street Corporation (i) provides a guarantee of the full performance of the
financial obligations of the Adviser and (ii) will indemnify the Portfolio
against, and pay when due, any and all sums for which the Adviser shall be
liable under the investment advisory agreement between the Adviser and the
Master Trust, with respect to the Portfolio, with respect to any and all losses,
liabilities, costs, claims, charges, actions, damages, and/or expenses which may
be incurred or which may be made by the Portfolio as a result of or arising out
of or in relation to any default by the Adviser in the full, due and punctual
performance of its obligations under such investment advisory agreement.
(b) Authorization of Agreement. The execution and delivery of
this Agreement by the Adviser have been duly authorized by all necessary action
on the part of the Adviser and no other action or proceeding is necessary for
the execution and delivery of this Agreement by the Adviser. This Agreement has
been duly executed and delivered by the Adviser and constitutes a legal, valid
and binding obligation of the Adviser.
(c) Advisers Act. The Adviser is an investment adviser, as
defined in the Investment Advisers Act of 1940, as amended (the "Advisers Act")
and is registered as an investment adviser under the Advisers Act.
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III
COVENANTS
3.1 The Trusts. Each Trust covenants that:
(a) Advance Review of Certain Documents. Each Trust will furnish
the Portfolio and the Adviser, at least three (3) 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
Fund. Each Trust will furnish the Portfolio and the Adviser with any proposed
advertising or sales literature relating to the Fund at least one (1) business
day prior to filing or first use; provided, however, that such advance notice
shall not be required for advertising or sales literature that merely references
the name of the Fund. Each Trust agrees that it will include in all such Fund
documents any disclosures that may be required by law and it will include in all
such Fund documents any material comments reasonably made by the Adviser or
Portfolio. The Portfolio and Adviser will, however, in no way be liable for any
errors or omissions in such documents, whether or not they make any objection
thereto, except to the extent such errors or omissions result from information
provided by the Adviser or the Portfolio.
(b) Tax Status. Each Fund will qualify for treatment as a
regulated investment company under Subchapter M of the Code for all periods
during which this Agreement is in effect, except to the extent a failure to so
qualify may result from any action or omission of the Portfolio.
(c) Investment Securities. Neither Fund will own any investment
security other than its Interest in the Portfolio for all periods during which
this Agreement is in effect as to that Fund.
(d) Proxy Voting. If requested to vote on matters pertaining to
the Portfolio, each Fund will (i) call a meeting of shareholders of the Fund for
the purpose of seeking instructions from shareholders regarding such matters,
(ii) vote the Fund's Interest proportionally as instructed by Fund shareholders,
and (iii) vote the Fund's Interest with respect to the shares held by Fund
shareholders who do not give voting instructions in the same proportion as the
shares of Fund shareholders who do give voting instructions. Each Fund will hold
each such meeting of Fund shareholders in accordance with a timetable reasonably
established by the Portfolio. The Portfolio will be responsible for all
reasonable costs (including legal fees) associated with Fund proxies and
shareholder meetings called for the purpose of voting on matters pertaining to
the Portfolio.
(e) Insurance. The Trusts shall at all times maintain errors and
omissions liability insurance with respect to the Funds covering losses for
negligence and wrongful acts in an amount not less than $12.5 million.
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3.2 Indemnification by the Funds.
(a) Each Fund will indemnify and hold harmless the Portfolio and
the Adviser and their respective trustees, directors, officers and employees and
each other person who controls the Portfolio or the Adviser, 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 incurred in connection
therewith), joint or several, which
(i) arise out of or are based upon any of the Securities Laws,
any other statute or common law or are incurred in connection with or as a
result of any formal or informal administrative proceeding or investigation by a
regulatory agency, insofar as such Liabilities arise out of or are based upon
the ground or alleged ground that any direct or indirect omission or commission
by the Fund (either during the course of its daily activities or in connection
with the accuracy of its representations or its warranties in this Agreement)
caused or continues to cause the Portfolio to violate any federal or state
securities laws or regulations or any other applicable domestic or foreign law
or regulations or common law duties or obligations, but only to the extent that
such Liabilities do not arise out of and are not based upon an omission or
commission of the Portfolio or Adviser;
(ii) arise out of any misstatement of a material fact or an
omission of a material fact in the Fund's registration statement (including
amendments thereto) or included in the Fund's advertising or sales literature,
other than information provided by the Portfolio or the Adviser or included in
the Fund's advertising or sales literature at the request of the Portfolio or
the Adviser;
(iii) result from the failure of any representation or
warranty made by the Fund to be accurate when made or the failure of the Fund to
perform any covenant contained herein or to otherwise comply with the terms of
this Agreement;
(iv) arise out of any unlawful or negligent act of the Fund or
the Trusts or any director, officer, employee or agent of the Trusts, whether
such act was committed against the Portfolio, the Adviser or any third party; or
(v) arise out of any claim that the use of the names "Standard
& Poor's," "S&P," "Standard & Poor's 500" or "500" by the Fund or the Trusts
violates any license or infringes upon any trademark; provided, however, that in
no case shall a Fund be liable with respect to any claim made against any
Covered Person unless the party shall have notified the Fund in writing of the
nature of the claim within a reasonable time after the summons, other first
legal process or formal or informal initiation of a regulatory investigation or
proceeding shall have been served upon or provided to a Covered Person, or any
federal, state or local tax deficiency has come to the attention of the Adviser,
the Portfolio or a Covered Person. Failure to notify the Fund of such claim
shall not relieve it from any liability that it may have to any party otherwise
than on account of the indemnification contained in this Section.
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(b) Each 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 a Fund elects to assume the defense, such
defense shall be conducted by counsel chosen by the Fund. In the event a Fund
elects to assume the defense of any such suit and retain such counsel, each
Covered Person and any other defendant or defendants may retain additional
counsel, but shall bear the fees and expenses of such counsel unless (A) the
Fund shall have specifically authorized the retaining of such counsel or (B) the
parties to such suit include any Covered Person and the Fund, and any such
Covered Person has been advised by counsel that one or more legal defenses may
be available to it that may not be available to the Fund, in which case the Fund
shall not be entitled to assume the defense of such suit notwithstanding its
obligation to bear the fees and expenses of such counsel. A Fund shall not be
liable to indemnify any Covered Person for any settlement of any claim affected
without the Fund's written consent, which consent shall not be unreasonably
withheld or delayed. The indemnities set forth in paragraph (a) will be in
addition to any liability that the Company in respect of the Fund might
otherwise have to a Covered Person.
3.3 The Portfolio. The Portfolio covenants that:
(a) Advance Review of Certain Documents. The Portfolio will
furnish the Funds, at least five (5) business days prior to filing, with drafts
of amendments to its registration statement on Form N-1A.
(b) Tax Status. The Portfolio will qualify to be taxable as a
partnership under the Code for all periods during which this Agreement is in
effect, except to the extent that the failure to so qualify results from any
action or omission of a Fund.
(c) Insurance. The Master Trust shall at all times maintain
errors and omissions liability insurance covering losses for negligence and
wrongful acts in an amount not less than $5 million.
(d) Availability of Interest. Conditional upon the Funds
complying with the terms of this Agreement, the Portfolio shall permit each Fund
to make additional Investments in the Portfolio on each business day on which
shares of the Funds are sold to the public; provided, however, that the
Portfolio may refuse to permit a Fund to make additional Investments in the
Portfolio on any day on which (i) the Portfolio has refused to permit all other
investors in the Portfolio to make additional Investments in the Portfolio or
(ii) the Trustees of the Portfolio have reasonably determined that permitting
additional Investments by the Funds in the Portfolio would constitute a breach
of their fiduciary duties to the Portfolio.
(e) Investment Objective. The Portfolio will notify the Funds at
least 60 days prior to changing its investment objective or policies.
(f) Tax data. The Portfolio will provide all necessary tax data
as of the fiscal and excise year ends of the Funds.
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3.4 Indemnification by the Portfolio and the Adviser.
(a) The Portfolio and the Adviser will indemnify and hold
harmless the Funds and the Trusts, their respective trustees, officers and
employees and each other person who controls each Fund, as the case may be,
within the meaning of Section 15 of the 1933 Act (each, a "Covered Person" and
collectively, "Covered Persons"), against any and all losses, claims, demands,
damages, liabilities and expenses (each, a "Liability" and collectively, the
"Liabilities") (including the reasonable costs of investigating and defending
against any claims therefor and any counsel fees incurred in connection
therewith), joint or several, whether incurred directly by the Fund or through
the Fund's Investment in the Portfolio, which
(i) arise out of or are based upon any of the Securities Laws,
any other statute or common law or are incurred in connection with or as a
result of any formal or informal administrative proceeding or investigation by a
regulatory agency, insofar as such Liabilities arise out of or are based upon
the ground or alleged ground that any direct or indirect omission or commission
by the Portfolio (either during the course of its daily activities or in
connection with the accuracy of its representations or its warranties in this
Agreement) caused or continues to cause the Funds to violate any federal or
state securities laws or regulations or any other applicable domestic or foreign
law or regulations or common law duties or obligations, but only to the extent
that such Liabilities do not arise out of and are not based upon an omission or
commission of the Funds;
(ii) arise out of or are based upon an inaccurate calculation
of the Portfolio's net asset value (whether by the Portfolio, the Adviser or any
party retained for that purpose);
(iii) arise out of (a) any misstatement of a material fact or
an omission of a material fact in the Portfolio's registration statement
(including amendments thereto) or included at the Portfolio's or the Adviser's
request in advertising or sales literature used by the Fund, or (b) any
misstatement of a material fact or an omission of a material fact in the
registration statement or advertising or sales literature of any investor in the
Portfolio, other than the Funds;
(iv) arise out of the Portfolio's having caused either Fund to
fail to qualify as a regulated investment company under the Code;
(v) result from the failure of any representation or warranty
made by the Portfolio or the Adviser to be accurate when made or the failure of
the Portfolio or the Adviser to perform any covenant contained herein or to
otherwise comply with the terms of this Agreement;
(vi) arise out of any unlawful or negligent act by the
Portfolio, the Adviser or any director, trustee, officer, employee or agent of
the Portfolio or the Adviser, whether such act was committed against the
Portfolio, the Fund or any third party;
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(vii) arise out of any claim that the systems, methodologies,
or technology used in connection with operating the Portfolio, including the
technologies associated with maintaining the master-feeder structure of the
Portfolio, violates any license or infringes upon any patent or trademark;
(viii) arise out of any claim that the use of the names
"Standard & Poor's," "S&P," "Standard & Poor's 500," "S&P 500" or 500" by the
Portfolio violates any license or infringes upon any trademark; or
(ix) result from any Liability of the Portfolio to any
investor in the Portfolio (or shareholder thereof), other than the Funds (and
their shareholders); provided, however, that in no case shall the Portfolio or
the Adviser be liable with respect to any claim made against any such Covered
Person unless such Covered Person shall have notified the Portfolio and the
Adviser in writing of the nature of the claim within a reasonable time after the
summons, other first legal process or formal or informal initiation of a
regulatory investigation or proceeding shall have been served upon or provided
to a Covered Person or any federal, state or local tax deficiency has come to
the attention of the Funds or a Covered Person. Failure of a Covered Person to
notify the Portfolio and the Adviser of such claim shall not relieve them from
any liability that they may have to any Covered Person otherwise than on account
of the indemnification contained in this paragraph.
(b) Both the Portfolio and the Adviser will be entitled to
participate at their own expense in the defense or, if they so elect, to assume
the defense of any suit brought to enforce any such liability, but, if the
Portfolio or the Adviser elects to assume the defense, such defense shall be
conducted by counsel chosen by the Portfolio or the Adviser, as applicable. In
the event the Portfolio or the Adviser elects to assume the defense of any such
suit and retain such counsel, each Covered Person and any other defendant or
defendants may retain additional counsel, but shall bear the fees and expenses
of such counsel unless (A) the Portfolio or the Adviser, as applicable, shall
have specifically authorized the retaining of such counsel, or (B) the parties
to such suit include any Covered Person, the Portfolio or the Adviser, as
applicable, and any such Covered Person has been advised by counsel that one or
more legal defenses may be available to it that may not be available to the
Portfolio or the Adviser, in which case the Portfolio or the Adviser, as the
case may be, shall not be entitled to assume the defense of such suit
notwithstanding its obligation to bear the fees and expenses of such counsel.
The Portfolio and the Adviser shall not be liable to indemnify any Covered
Person for any settlement of any claim affected without the Portfolio's or the
Adviser's written consent, as applicable, 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 Company in respect of the
Portfolio or the Adviser, as the case may be, might otherwise have to a Covered
Person.
3.5 In-Kind Redemption. In the event a Fund desires to withdraw or
redeem all of its Interest in the Portfolio, unless otherwise agreed to by the
parties, the Portfolio will effect such redemption "in kind" and in such a
manner that the securities delivered to the Fund's custodian for the account of
the Fund will mirror, as closely as practicable, the composition of the
Portfolio immediately prior to such redemption so long as such redemption is
made in accordance with the 1940 Act as interpreted by the SEC and its staff. No
other withdrawal or redemption of any
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Interest in the Portfolio will be satisfied by means of an "in kind" redemption
except in compliance with Rule 18f-1 under the 1940 Act; provided, however, that
for purposes of determining compliance with Rule 18f-1, each shareholder of the
Fund redeeming shares of the Fund on a particular day will be treated as a
direct holder of an Interest in the Portfolio being redeemed that day.
3.6 Auditors. In the event a Fund's independent public accountants
differ from those of the Portfolio, the Portfolio shall be responsible for any
costs and expenses associated with the need for the Portfolio's independent
public accountants to provide information to the Fund's independent public
accountants.
3.7 Reasonable Actions. Each party covenants that it will, subject to
the provisions of this Agreement, from time to time, as and when requested by
another party or in its own discretion, as the case may be, execute and deliver
or cause to be executed and delivered all such assignments and other
instruments, take or cause to be taken such actions, and do or cause to be done
all things reasonably necessary, proper or advisable in order to consummate the
transactions contemplated by this Agreement and to carry out its intent and
purpose.
IV
CONDITIONS PRECEDENT
The obligations of each party to consummate the transactions provided
for herein shall be subject to (a) all representations and warranties of the
other parties contained in this Agreement being true and correct in all material
respects as of the date hereof and, except as they may be affected by the
transactions contemplated by this Agreement, and (b) the following further
conditions that shall be fulfilled on or before investment:
4.1 Regulatory Status. All necessary filings shall have been made with
the SEC and state securities authorities, and no order or directive shall have
been received that any other or further action is required to permit the parties
to carry out the transactions contemplated hereby.
4.2 Investment Objective/Restrictions. The Funds shall have the same
investment objective and substantively the same investment restrictions as the
Portfolio.
V
ADDITIONAL AGREEMENTS
5.1 Notification of Certain Matters. Each party will give prompt notice
to the other parties of (a) the occurrence or non-occurrence of any event the
occurrence or non-occurrence of which would be likely to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate, and (b) any material failure of a party or any trustee, director,
officer, employee or agent thereof to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by such person
hereunder; provided, however, that the delivery of any notice pursuant to this
Section 5.1 shall not limit or otherwise affect the remedies available,
hereunder or otherwise, to the party receiving such notice.
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5.2 Access to Information. The Portfolio and the Funds shall afford
each other access at all reasonable times to such party's officers, employees,
agents and offices and to all its relevant books and records and shall furnish
each other party with all relevant financial and other data and information as
requested; provided, however, that nothing contained herein shall obligate the
Funds to provide the Portfolio with access to the books and records of the Funds
relating to any other series of the Trusts other than the Funds, nor shall
anything contained herein obligate the Funds to furnish the Portfolio with the
Funds' shareholder list, except as may be required to comply with applicable law
or any provision of this Agreement.
5.3 Confidentiality. Each party agrees that it shall hold in strict
confidence all data and information obtained from another party (unless such
information is or becomes readily 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 Funds' or
the Portfolio's respective auditors, or in the opinion of counsel such
disclosure is required by law, and then only with as much prior written notice
to the other party as is practical under the circumstances.
5.4 Public Announcements. No party shall issue any press release or
otherwise make any public statements with respect to the matters covered by this
Agreement without the prior consent of the other parties hereto, which consent
shall not be unreasonably withheld; provided, however, that consent shall not be
required if, in the opinion of counsel, such disclosure is required by law,
provided further, however, that the party making such disclosure shall provide
the other parties hereto with as much prior written notice of such disclosure as
is practical under the circumstances.
VI
TERMINATION, AMENDMENT AND WAIVER
6.1 Termination.
(a) This Agreement may be terminated by each Fund upon five (5)
business days notice to the Portfolio and the Adviser.
(b) This Agreement may be terminated at any time by a Fund by
withdrawing all of the Fund's Interest in the Portfolio.
(c) This Agreement may be terminated on not less than 120 days'
prior written notice by the Portfolio to the Funds.
(d) This Agreement may be terminated at any time immediately upon
written notice to the other parties in the event that formal proceedings are
instituted against another party to this Agreement by the SEC or any other
regulatory body, provided that the terminating party has a reasonable belief
that the institution of the proceeding is not without foundation and will have a
material adverse impact on the terminating party.
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(e) The indemnification obligations set forth in Article III and
the confidentiality provisions in Section 5.3 shall survive the termination of
this Agreement.
6.2 Amendment. This Agreement may be amended, modified or supplemented
at any time in such manner as may be mutually agreed upon in writing by the
parties.
VII
GENERAL PROVISIONS
7.1 Notices. All notices and other communications given or made
pursuant hereto shall to in writing and shall be deemed to have been duly given
or made when actually received in person or by fax, or three days after being
sent by certified or registered United States mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Funds: AMR Investment Services, Inc.
0000 Xxxx Xxxxxx Xxxx., XX 2450
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx, President
Fax: (000) 000-0000
If to the Adviser: SSgA Funds Management, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Compliance Officer
Fax: (000) 000-0000
If to the Portfolio: State Street Master Funds
c/o State Street Bank and Trust Company
P. O. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxxx
Fax: (000) 000-0000
Any party to this Agreement may change the identity of the person to receive
notice by providing written notice thereof to all other parties to the
Agreement.
7.2 Expenses. Unless stated otherwise herein, all costs and expense
associated with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses.
7.3 Headings. The headings and captions contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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7.4 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
7.5 Entire Agreement. This Agreement and the agreements and other
documents delivered pursuant hereto set forth the entire understanding between
the parties concerning the subject matter of this Agreement and incorporate or
supersede all prior negotiations and understandings. There are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between them relating to the subject matter of this Agreement other than those
set forth herein.
7.6 Successors and Assignments. Each and all of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and, except as otherwise specifically provided in this Agreement, their
respective successors and assigns. Notwithstanding the foregoing, no party shall
make any assignment of this Agreement or any rights or obligations hereunder
without the written consent of all other parties. As used herein, the term
"assignment" shall have the meaning ascribed thereto in the 1940 Act.
7.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts without giving
effect to the choice of law or conflicts of law provisions thereof.
7.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing one or more counterparts.
7.9 Third Parties. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give any person, other than the parties
hereto and their successors or assigns, any rights or remedies under or by
reason of this Agreement.
7.10 Interpretation. Any uncertainty or ambiguity existing herein shall
not presumptively be interpreted against any party, but shall be interpreted
according to the application of the rules of interpretation for arm's length
agreements.
7.11 Limitation of Liability. Each party expressly acknowledges the
provision in the Declaration of Trust of each of the Trusts and the Master Trust
limiting the personal liability of shareholders of the Funds and the Portfolio
and the officers and trustees of the Trusts and the Master Trust.
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7.12 Additional Limitations of Liability. The parties hereto agree and
acknowledge that (i) no series or feeder participant of the Master Trust shall
be liable to any other series or feeder participant of the Master Trust, (ii)
the Portfolio has entered into this Agreement solely on its own behalf and that
no other series of the Master Trust shall have any obligation hereunder with
respect to any liability of the Master Trust arising hereunder, and (iii) the
Trusts have entered into this Agreement solely on behalf of the Funds and that
no other party shall have any obligations hereunder with respect to any
liability of the Funds arising hereunder.
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.
AMERICAN AADVANTAGE FUNDS, on behalf of itself and the
AMERICAN AADVANTAGE S&P 500 INDEX FUND, a series thereof
AMERICAN AADVANTAGE MILEAGE FUNDS, on behalf of itself and the
AMERICAN AADVANTAGE S&P 500 INDEX MILEAGE FUND, a series
thereof
----------------------------------------------
By: Xxxxxxx X. Xxxxx
Its: President
STATE STREET MASTER FUNDS, on behalf of itself and the STATE
STREET EQUITY 500 INDEX PORTFOLIO, a series thereof
----------------------------------------------
By: Xxxxxxxx Xxxxxxx
Its: President
SSGA FUNDS MANAGEMENT, INC.
----------------------------------------------
By:
-------------------------------------------
Its:
------------------------------------------
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