MASTER-FEEDER PARTICIPATION AGREEMENT
AMONG
AMR INVESTMENT SERVICES TRUST
AMR INVESTMENT SERVICES, INC.
AMERIPRIME FUNDS
and
CASH MANAGEMENT SERVICES, INC.
THIS AGREEMENT is made and entered into as of the 19th day of December,
2000, by and among AMR Investment Services Trust ("AMR Trust"), AMR Investment
Services, Inc. ("AMR"), the AmeriPrime Funds ("Trust"), and Cash Management
Systems, Inc. ("Adviser").
WHEREAS, the Money Market Portfolio ("Portfolio") is a series of the
AMR Trust and the Cash Fund ("Fund") is a series of the Trust;
WHEREAS, the Portfolio and the Fund are each a series of separate
open-end management investment companies and each have the same investment
objectives and substantially the same investment policies;
WHEREAS, AMR serves as the manager of the Portfolio and Adviser serves
as the investment adviser of the Fund;
WHEREAS, the Fund desires to invest all of its investable assets in the
Portfolio in exchange for a beneficial interest in the Portfolio (the
"Investment") on the terms and conditions set forth in this Agreement; and
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.
ARTICLE I
THE INVESTMENT
1.1 Agreement to Effect the Investment. The Fund agrees to assign,
transfer and deliver all of the Fund's investable assets ("Assets") to the
Portfolio at each Closing (as hereinafter defined). The Portfolio agrees in
exchange therefor to issue to the Fund a beneficial interest ("Interest") in the
Portfolio equal in value to the net value of the Assets of the Fund conveyed to
the Portfolio on that date of Closing.
ARTICLE II
CLOSING AND CLOSING DATE
2.1 Time of Closing. The conveyance of the Assets in exchange for the
Interest, as described in Article I, together with related acts necessary to
consummate such transactions, shall occur initially on the date the Fund
commences an offering of its shares of the Fund to the public and at each
subsequent date as the Fund desires to make a further Investment in the
Portfolio (each, a "Closing"). All acts occurring at any Closing shall be deemed
to occur simultaneously as of the last daily determination of the Portfolio's
net asset value on the date of Closing.
2.2 Related Closing Matters. On each date of Closing, the Trust, on
behalf of the Fund, shall authorize the Fund's custodian to deliver all of the
Assets held by such custodian to the Portfolio's custodian. The Fund's and the
Portfolio's custodians shall acknowledge, in a form acceptable to the other
party, their respective delivery and acceptance of the Assets. The Portfolio
shall deliver to the Trust 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. Each of the
representations and warranties set forth in Article III shall be deemed to have
been made anew on each date of Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 The Trust and the Adviser. The Trust and the Adviser each
represents and warrants to AMR Trust and AMR that:
(a) Organization. The Trust is a trust duly organized, validly
existing and in good standing under the laws of the State of Ohio, the Fund is a
duly and validly designated series of the Trust, and the Trust and the Fund have
the requisite power and authority to 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 Trust and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Trust and the Fund 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 in respect of the Fund, and is enforceable against them in accordance
with its terms.
(c) Authorization of Investment. The Investment has been duly
authorized by all necessary action on the part of the Adviser and the Board of
Trustees of the Trust.
(d) No Bankruptcy Proceedings. Neither the Trust nor the 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.
(e) Fund Assets. The Fund's Assets will, at the initial
Closing, consist solely of cash.
(f) Fiscal Year. The fiscal year end for the Fund is
December 31.
(g) Auditors. The Trust has appointed Ernst & Young, LLP as
the Fund's independent public accountants to certify the Fund's financial
statements in accordance with Section 32 of the investment Company Act of 1940,
an amended ("1940 Act").
(h) Registration Statements. The Trust (1) has reviewed the
Portfolio's registration statement on Form N-1A, as filed with the Securities
and Exchange Commission ("SEC"), and understands and agrees to the Portfolio's
policies and methods of operation as described therein, and (2) has provided to
AMR Trust and AMR the Trust's most recent registration statement on Form N-1A,
as filed with the SEC, and all exhibits contained or incorporated therein.
(i) Errors and Omissions Insurance Policy. The Trust and the
Adviser have in force an errors and omissions liability insurance policy
insuring the Fund against loss up to at least $10,000,000 for negligence or
wrongful acts.
(j) SEC Filings. The Trust has duly filed all forms and other
documents (collectively, "SEC Filings") required to be filed under the
Securities Act of 1933, as amended ("1933 Act"), the Securities Exchange Act of
1934 ("1934 Act") and the 1940 Act (collectively, 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.
(k) 1940 Act Registration. The Trust is duly registered as an
open-end management investment company under the 1940 Act and the Fund and its
shares are registered or qualified in any states where such registration or
qualification is necessary and such registrations or qualifications are in full
force and effect.
3.2 The Portfolio and AMR. The Portfolio and AMR each represents
and warrants to the Trust and Adviser that:
(a) Organization. AMR Trust is a trust duly organized, validly
existing and in good standing under the common law of the State of New York, the
Portfolio is a duly and validly designated series of AMR Trust, and AMR Trust
and the Portfolio have the requisite power and authority to 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 AMR Trust on behalf of the Portfolio and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of AMR Trust by its Board of Trustees and no other action or
proceeding is necessary for the execution and delivery of this Agreement by AMR
Trust, the performance by AMR Trust of its obligations hereunder and the
consummation by AMR Trust of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by AMR Trust and constitutes a
legal, valid and binding obligation of AMR Trust enforceable against it in
accordance with its terms.
(c) Authorization of Issuance of Interest. The issuance by the
Portfolio of the Interest in exchange for the Investment by the Fund of its
Assets has been duly authorized by all necessary action on the part of the Board
of Trustees of AMR 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. Neither AMR Trust or the
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) 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 Trust and AMR have reviewed
the Trust's registration statement on Form N-1A which were provided to the Trust
and AMR pursuant Section 3.1(h) of this Agreement to the extent that such
registration statement and exhibits relate to the Fund.
(h) Errors and Omissions Insurance Policy. AMR Trust and AMR
have in force an errors and omissions liability insurance policy insuring the
Portfolio against loss up to at least $11,000,000 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 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 Trust 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").
3.3 AMR. AMR represents and warrants to the Trust and Adviser
that:
(a) Organization. AMR is a Delaware corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite power and authority to conduct its business as
now being conducted.
(b) Authorization of Agreement. The execution and delivery of
this Agreement by AMR have been duly authorized by all necessary action on the
part of AMR and no other action or proceeding is necessary for the execution and
delivery of this Agreement by AMR. This Agreement has been duly executed and
delivered by AMR and constitutes a legal, valid and binding obligation of the
Adviser.
(c) Advisers Act. AMR is duly registered as an investment
adviser under the Investment Advisers Act of 1940, as amended (the "Advisers
Act").
3.4 Adviser. Adviser represents and warrants to the Trust and AMR
that:
(a) Organization. Adviser is a Nevada corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and has the requisite power and authority to conduct its business as now
being conducted.
(b) Authorization of Agreement. The execution and delivery of
this Agreement by Adviser have been duly authorized by all necessary action on
the part of Adviser and no other action or proceeding is necessary for the
execution and delivery of this Agreement by Adviser. This Agreement has been
duly executed and delivered by Adviser and constitutes a legal, valid and
binding obligation of Adviser.
(c) Advisers Act. Adviser is duly registered as an
investment adviser under the Advisers Act.
ARTICLE IV
COVENANTS
4.1 The Trust. The Trust covenants as follows:
(a) Advance Review of Certain Documents. The Trust will
furnish to AMR Trust and AMR, at least five business days prior to filing or
first use, as the case may be, with a draft of any amendment or supplement to
its Form N-1A registration statement to the extent that such document relates to
the Fund. The Trust will furnish to AMR Trust and AMR any proposed advertisement
or sales literature relating to the Fund at least two business days prior to the
filing of such materials with appropriate regulators or first use, whichever is
sooner. The Trust will include in all such materials which relate to the Fund
any disclosures that may be required by law, and it will include in all such
materials any material comments reasonably made by AMR or AMR Trust. However,
AMR and AMR Trust will not 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 AMR or AMR Trust.
The Trust and Adviser will not make any other written or oral representation
about the AMR Trust or AMR without their prior written consent.
(b) Tax Status. The Fund will qualify for treatment as a
regulated investment company under Subchapter M of the Code for all fiscal
periods of the Fund and Portfolio during which this Agreement is in effect,
except to the extent a failure to so qualify may result from any action or
omission of the Portfolio.
(c) Investment Securities. The Fund will own no investment
security other than its Interest in the Portfolio.
(d) Proxy Voting. If requested to vote on matters pertaining
to AMR Trust or the Portfolio, the Fund will (1) call a timely meeting of
shareholders of the Fund for the purpose of seeking instructions from
shareholders regarding such matters, (2) vote the Fund's Interest proportionally
as instructed by Fund shareholders, and (3) 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.
(e) Auditors. In the event the Fund's independent public
accountants differ from those of the Portfolio, the Fund 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.
4.2 Indemnification by Adviser.
(a) Indemnification. Adviser will indemnify and hold harmless
AMR Trust, the Portfolio, AMR and their respective trustees, directors, officers
and employees and each other person who controls AMR Trust, the Portfolio or
AMR, 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, unless Adviser elects to assume
the defense pursuant to paragraph (b), the reasonable cost of investigating and
defending against any claims therefor and any counsel fees incurred in
connection therewith), joint or several, which:
(1) arise out of or are based upon any 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 Trust or 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 AMR;
(2) arise out of any misstatement of a material fact or an omission of
a material fact in the Trust's registration statement (including
amendments and supplements thereto) or in advertisements or sales
literature on behalf of the Trust, other than a misstatement or
omission arising from information provided by AMR Trust, the Portfolio
or AMR;
(3) result from the failure of any representation or warranty made by
the Trust, Fund or Adviser to be accurate when made or the failure of
such parties to perform any covenant contained herein or otherwise to
comply with the terms of this Agreement; or
(4) arise out of any unlawful or negligent act or omission by the
Trust, Fund or Adviser or any trustee, director, officer, employee or
agent of the such persons;
provided, however, that in no case shall Adviser be liable with respect to any
claim made against any Covered Person unless the Covered Person shall have
notified 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 Adviser, the Portfolio or a Covered Person. Failure to
notify Adviser of such claim shall not relieve it from any liability that it may
have to any Covered Person otherwise than on account of the indemnification
contained in this Section.
(b) Assumption of Defense. Adviser is 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 Adviser elects to assume
the defense, such defense shall be conducted by legal counsel acceptable to the
applicable Covered Persons. In the event 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 (1) Adviser shall have specifically
authorized the retaining of such counsel or (2) the parties to such suit include
any Covered Person and Adviser, 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 Adviser, in which case Adviser shall not be entitled to assume the
defense of such suit notwithstanding its obligation to bear the fees and
expenses of such counsel. Adviser shall not be liable to indemnify any Covered
Person for any settlement of any claim affected without Adviser'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 Trust in respect of the Fund might otherwise have to a Covered Person.
4.3 AMR Trust. AMR Trust, on behalf of the Portfolio, covenants
as follows:
(a) Advance Review of Certain Documents. AMR Trust will
furnish to the Trust and Adviser, at least five business days prior to filing or
first use, as the case may be, with a draft of any amendment or supplement to
its Form N-1A registration statement to the extent that such document relates to
any change in the investment practices of the Portfolio. AMR Trust will not make
any written or oral representation about the Trust, Fund or Adviser without
their prior written consent.
(b) Tax Status. The Portfolio will qualify to be taxed 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 in whole or
in part from any action or omission of the Fund.
(c) Availability of Interests. Conditional upon the Trust
complying with the terms of this Agreement, the Portfolio shall permit the Fund
to make additional Investments in the Portfolio on each business day on which
shares of the Fund are sold to the public; provided, however, that the Portfolio
may refuse to permit the Fund to make additional Investments in the Portfolio on
any day on which (1) the Portfolio has refused to permit all other investors in
the Portfolio to make additional Investments in the Portfolio or (2) the
Trustees of the Portfolio have reasonably determined that permitting additional
Investments by the Fund in the Portfolio could constitute a breach of their
fiduciary duties to the Portfolio.
4.4 Indemnification by AMR.
(a) Indemnification. AMR will indemnify and hold harmless the
Fund, Adviser, their respective trustees, directors, officers and employees and
each other person who controls the Fund or 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, unless AMR elects to assume the defense pursuant to
paragraph (b), 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 the Adviser or indirectly by
the Fund or Adviser through the Fund's Investment in the Portfolio, which
(1) arise out of or are based upon any Securities Laws, any other
statute or common law or are incurred in connection with or as a result
of any formal or informal administrative proceeding or investigation by
a regulatory agency, insofar as such Liabilities arise out of or are
based upon the ground or alleged ground that any direct or indirect
omission or commission by the Portfolio (either during the course of
its daily activities or in connection with the accuracy of its
representations or its warranties in this Agreement) caused or
continues to cause the Fund to violate any federal or state securities
laws or regulations or any other applicable domestic or foreign law or
regulations or common law duties or obligations, but only to the extent
that such Liabilities do not arise out of and are not based upon an
omission or commission of the Trust or the Adviser;
(2) arise out of the Portfolio having caused the Fund to fail to
qualify as a regulated investment company under the Code;
(3) arise out of any misstatement of a material fact or an omission of
a material fact in the Portfolio's registration statement (including
amendments and supplements thereto) or included at the request of AMR
or the Portfolio in advertising or sales literature used by the Fund,
other than a misstatement of a material fact or an omission arising
from information provided by the Trust, Fund or Adviser;
(4) result from the failure of any representation or warranty made by
the Portfolio or AMR to be accurate when made or the failure of such
parties to perform any covenant contained herein or otherwise to comply
with the terms of this Agreement; or
(5) arise out of any unlawful or negligent act or omission by the
Portfolio, AMR or any director, trustee, officer, employee or agent of
such persons;
provided, however, that in no case shall AMR be liable with respect to any claim
made against any such Covered Person unless such Covered Person shall have
notified AMR 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 Trust, the Adviser or a Covered Person. Failure to notify
AMR of such claim shall not relieve it from any liability that it may have to
any Covered Person otherwise than on account of the indemnification contained in
this paragraph.
(b) Assumption of Defense. AMR is 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. In the event AMR elects to assume
the defense of any such suit and retain such counsel, each Covered Person and
any other defendant or defendants in the suit may retain additional counsel but
shall bear the fees and expenses of such counsel unless (1) AMR shall have
specifically authorized the retaining of such counsel or (2) the parties to such
suit include any Covered Person and the Adviser, 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 Adviser, in which case the Adviser shall not be
entitled to assume the defense of such suit notwithstanding the obligation to
bear the fees and expenses of such counsel. AMR shall not be liable to indemnify
any Covered Person for any settlement of any such claim effected without the
Adviser's written consent, which content shall not be unreasonably withheld or
delayed. The indemnities set forth in paragraph (a) will be in addition to any
liability that the Portfolio might otherwise have to a Covered Person.
4.5 In-Kind Redemption. If the Fund desires to withdraw or redeem all
of its Interests in the Portfolio, the Portfolio can 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. No other
withdrawal or redemption of any Interest in the Portfolio will be satisfied by
means of an "in kind" redemption except in compliance with Rule 18f-1 under the
1940 Act.
4.6 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.
ARTICLE V
CONDITIONS PRECEDENT
The obligations of each party to consummate the transactions provided
for herein shall be subject to (a) performance by such other parties of all the
obligations to be performed by the other parties hereunder on or before each
Closing, and (b) 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, as of each date of Closing, with the same force
and effect as if made on and as of the time of such Closing.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 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 either (1) any
representation or warranty contained in this Agreement to be untrue or
inaccurate, or (2) any condition precedent set forth in Article V hereof to be
unsatisfied in any material respect at the time of any Closing 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 6.1 shall not limit or otherwise
affect the remedies available, hereunder or otherwise, to the party receiving
such notice.
6.2 Access to Information. The Portfolio and the Fund shall afford each
other access at all reasonable times to such party's officers, employees and
agents and to all its relevant books and records and shall furnish each other
party with all relevant financial and other data and information as reasonably
requested; provided, however, that nothing contained herein shall obligate any
party to provide another party with access to their books and records as they
relate to any series of the Trust or AMR Trust, except as may be required to
comply with applicable law or any provision of this Agreement.
6.3 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 Fund's or
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.
6.4 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.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination.
(a) This Agreement may be terminated by the mutual agreement of
all parties.
(b) This Agreement may be terminated at any time by the Trust by
redeeming all of the Fund's Interest in the Portfolio.
(c) This Agreement may be terminated on not less than 30 days' prior
written notice by AMR or the Trust to the Fund and the Adviser.
(d) This Agreement may be terminated immediately at any time upon
written notice to the other parties in the event that formal proceedings are
instituted against another party to this Agreement by the SEC or any other
regulatory body, provided that the terminating party has a reasonable belief
that the institution of the proceeding is not without foundation and will have a
material adverse impact on the terminating party.
(e) The indemnification obligations in Article IV shall survive
the termination of this Agreement.
7.2 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.
7.3 Waiver. At any time prior to any Closing, any party may (a) extend
the time for the performance of any of the obligations or other acts of the
other parties hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any of the agreements or conditions contained herein.
ARTICLE VIII
DAMAGES
8.1 Damages. The parties agree that, if this Agreement is breached, the
remedy of money damages would not be adequate and agree that injunctive relief
would be the appropriate relief.
ARTICLE IX
GENERAL PROVISIONS
9.1 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 AMR or AMR Investment Services, Inc.
AMR Trust: 0000 Xxxx Xxxxxx Xxxxxxxxx, XX-0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx, President
Fax: (000) 000-0000
With a copy to: Xxxxx X. Xxxxxxxxx, Esq.
If to the Adviser Cash Management Systems, Inc.
000 Xxxxxxxx Xxxx, #000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx, President
Fax: (000) 000-0000
9.2 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
9.3 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.
9.4 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.
9.5 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. No representation or warranty has been made by or on behalf of
any party to this Agreement (or any officer, director, trustee, employee or
agent thereof) to induce any other party to enter into this Agreement or to
abide by or consummate any transactions contemplated by any terms of this
Agreement, except representations and warranties expressly set forth herein.
9.6 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.
9.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas without giving
effect to the choice of law or conflicts of law provisions thereof.
9.8 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.
9.9 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.
9.10 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.
9.11 Limitation of Liability. The parties acknowledge that the Trust and
AMR Trust have entered into this Agreement solely on behalf of the Fund and the
Portfolio, respectively, and that no other series of the Trust or the AMR Trust
shall have any obligation hereunder with respect to any liabilities 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.
AMR INVESTMENT SERVICES, INC.
By ____/S/______________________
Xxxxxxx X. Xxxxx
President
AMR INVESTMENT SERVICES TRUST,
on behalf of itself and the
Money Market Portfolio,
a series thereof
By_______/S/____________________
Xxxxxxx X. Xxxxx
President
CASH MANAGEMENT SYSTEMS, INC.
By _________/S/_________________
Name: Xxxxx X. Xxxxxxx
Title: President
AMERIPRIME FUNDS,
on behalf of itself and the Cash Fund, a series thereof
By _________/S/_________________
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: President
