1
MASTER FEEDER PARTICIPATION AGREEMENT
AMONG
AMERICAN AADVANTAGE FUNDS,
AMERICAN AADVANTAGE MILEAGE FUNDS,
AND
STATE STREET EQUITY 500 INDEX PORTFOLIO
AND
STATE STREET BANK AND TRUST COMPANY
DATED AS OF
MARCH 1, 2000
AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of March,
2000, 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, a series of the State Street Master Funds, a trust organized under
the common law of the Commonwealth of Massachusetts (the "Portfolio"), and State
Street Bank and Trust Company, a Massachusetts bank holding company (the
"Adviser"), with respect to the proposed 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;
WHEREAS, the Funds desire to invest all of their 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;
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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;
and
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 will invest all of their investable assets in
the Portfolio and, in exchange therefor, the Portfolio agrees to issue 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 (an "Account"). 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 will execute and deliver to the Portfolio an application
substantially in the form of Appendix A hereto.
1.3 Investment Date. The Investment, as described in Article I,
together with related acts necessary to consummate such transactions, shall
occur initially on March 1, 2000 and at each subsequent date as the Funds desire
to make a further Investment in the Portfolio. All acts occurring on the date of
Investment shall be deemed to occur simultaneously as of the last daily
determination of the Portfolio's net asset value on the date of the Investment.
1.4 Related Matters. On each date of Investment, the 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 their respective acceptance of the assets. The Portfolio shall
deliver to the Fund acceptable evidence of the Fund's ownership of the Account.
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) Auditors. The Trusts have appointed Ernst & Young LLP as
the Funds' independent public accountants to certify each Fund's financial
statements in accordance with Section 32 of the Investment Company Act of 1940,
an amended ("1940 Act").
(f) Registration Statement. AMR Investment Services, Inc.,
Adviser 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 understands and agrees to the Portfolio's policies and methods of
operation as described therein.
(g) 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.
(h) 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 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 Securities and
Exchange Commission (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.
(i) 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 and the Adviser. The Portfolio and the Adviser each
represents and warrants to the Trusts that:
(a) Organization. The Portfolio is a series of the State
Street Master Funds, 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 Portfolio and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Portfolio by its Board of Trustees and no other action or proceeding
is necessary for the execution and delivery of this Agreement by the Portfolio,
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 Portfolio 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 Account 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 Portfolio. When issued in accordance with the terms of this
Agreement, the Account 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 Portfolio has
in force an errors and omissions liability insurance policy insuring the
Portfolio against loss up to $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
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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 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 banking
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.
(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 currently exempt from the
definition of an investment adviser under the Investment Advisers Act of 1940,
as amended (the "Advisers Act") and will register as an investment adviser under
the Advisers Act on a timely basis as required by applicable registration.
(d) Pricing Procedures. The Adviser has adopted pricing and
valuation procedures that comply with the 1940 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,
particularly those relating to the Adviser's status as a bank, 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 Account 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 Account proportionally as instructed by Fund
shareholders, and (iii) vote the Fund's Account 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 Funds.
(a) Each Fund will indemnify and hold harmless the Portfolio,
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 Fund advertising or sales literature, other
than information provided by the Portfolio or the Adviser or included in Fund
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 any director, officer, employee or agent of Fund, whether such act was
committed against the Fund, the Portfolio, Adviser or any third party;
(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
violates any license or infringes upon any trademark; or
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
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relieve it from any liability that it may have to any party otherwise than on
account of the indemnification contained in this Section.
(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 Portfolio 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 Interests. Conditional upon the Fund
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 Fund 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 Fund in the Portfolio would constitute a breach of their
fiduciary duties to the Portfolio.
(e) Investment Objective. Portfolio will notify the Funds at
least 60 days prior to changing its investment objective or policies.
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3.4 Indemnification by Adviser.
(a) The Adviser will indemnify and hold harmless the Trusts,
the Funds, 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 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 Fund;
(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 Adviser's or Portfolio'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 Fund;
(iv) arise out of the Portfolio's having caused the 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 Adviser to be accurate when made or the
failure of the Portfolio or 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 Adviser, whether such act was committed against the Portfolio,
the Fund or any third party;
(vii) arise out of any claim that the systems,
methodologies, or technology used in connection with operating the Portfolio,
including the technologies associated
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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 Fund (and its
shareholders); provided, however, that in no case shall the Adviser be liable
with respect to any claim made against any such Covered Person unless such
Covered Person shall have notified 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 Fund or a Covered Person.
Failure to notify the 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 paragraph.
(b) The Adviser 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 Adviser elects to assume the
defense, such defense shall be conducted by counsel chosen by the Adviser. In
the event 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 Adviser shall have specifically authorized the retaining of such
counsel or (B) 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 its obligation to bear the fees and expenses of
such counsel. The Adviser shall not be liable to indemnify any Covered Person
for any settlement of any claim affected without the 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 Company in
respect of the Adviser 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 Interests 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. 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,
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
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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.
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 Funds 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.
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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
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.
(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.
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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 5645
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx, President
Fax: (000) 000-0000
If to the Adviser: State Street Bank and Trust Company
P. O. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxxx
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.
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
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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 Portfolio
limiting the personal liability of shareholders and the officers and trustees of
the Trusts and the Portfolio.
7.12 Additional Limitations of Liability. The parties hereto agree and
acknowledge that (a) the Trusts have entered into this Agreement solely on
behalf of the Funds and no other series of the Trusts shall have any obligation
hereunder with respect to any liability of the Trusts arising hereunder; (b) the
Portfolio has entered into this Agreement solely on its own behalf and no other
series of the State Street Master Funds shall have any obligation hereunder with
respect to any liability of the Portfolio arising hereunder; and (c) no series
or feeder participant of the Portfolio shall be liable to any other series or
feeder participant of the Portfolio.
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15
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
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
By: Xxxxxxx X. Xxxxx
Its: President
State Street Equity 500 Index Portfolio
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
By: Xxxxx X. Xxxxxx
-------------------------------------
Its: President and Treasurer
------------------------------------
State Street Bank and Trust Company
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------
By: Xxxxxxxx X. Xxxxxxx
-------------------------------------
Its: Senior Vice President
------------------------------------
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