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Exhibit 5(a)
FORM OF
INVESTMENT ADVISORY AND ADMINISTRATION AGREEMENT
(THE SCHWAB MONEY FUNDS)
AGREEMENT made as of May 1, 1997 between THE XXXXXXX XXXXXX FAMILY OF
FUNDS, a Massachusetts business trust (herein called the "Trust"), and XXXXXXX
XXXXXX INVESTMENT MANAGEMENT, INC., a Delaware corporation (the "Investment
Adviser").
WHEREAS, the Trust is registered as an open-end diversified, management
investment company under the Investment Company Act of 1940, as amended ("1940
Act"); and
WHEREAS, the Trust desires to retain the Investment Adviser to furnish
investment advisory, administrative, and certain accounting and record-keeping
services to three investment portfolios of the Trust: the Schwab Money Market
Fund, the Schwab Government Money Fund (formerly, the Schwab Government
Securities Fund), and the Schwab Municipal Money Fund (formerly, the Schwab
Tax-Exempt Money Fund or Schwab Tax-Exempt Fund) (each a "Money Fund" and
collectively, the "Money Funds"), and the Investment Adviser is willing and
believes that it possesses the legal authority to so furnish such services,
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints the Investment Adviser to act
as investment adviser and administrator to the Money Funds for the period and on
the terms set forth in this Agreement. The Investment Adviser accepts such
appointment and agrees to furnish the services herein set forth for the
compensation herein provided.
2. Delivery of Documents. The Trust has furnished the Investment
Adviser with copies properly certified or authenticated of each of the
following:
(a) the Trust's Agreement and Declaration of Trust, as filed
with the Secretary of State of The Commonwealth of Massachusetts on
October 20, 1989, and all amendments thereto or restatements thereof
(such Agreement and Declaration, as presently in effect and as it shall
from time to time be amended or restated, is herein called the
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"Declaration of Trust");
(b) the Trust's By-Laws and amendments thereto;
(c) resolutions of the Trust's Board of Trustees authorizing
the appointment of the Investment Adviser and approving this Agreement;
(d) the Trust's Notification of Registration on Form N-8A
under the 1940 Act, as filed with the Securities and Exchange
Commission ("SEC") on November 1, 1989 and all amendments thereto;
(e) the Trust's Registration Statement on Form N-1A under the
Securities Act of 1933, as amended ("1933 Act"), (File No. 33-31894)
and under the 1940 Act as filed with the "SEC" and all amendments
thereto; and
(f) the Trust's most recent prospectus and Statement of
Additional Information for the Money Funds (such prospectuses and
Statement of Additional Information, as presently in effect, and all
amendments and supplements thereto are herein collectively called the
"Prospectus").
The Trust will furnish the Investment Adviser from time to time with copies of
all amendments of or supplements to the foregoing.
3. Management. Subject to the direction and control of the Board of
Trustees of the Trust, the Investment Adviser will supervise or perform for the
Money Funds all aspects of the operations of the Money Funds except for those
performed by the custodian for the Money Funds under the Custody Agreement,
provide general economic and financial analysis and advice to the Money Funds,
and provide a continuous investment program for the Money Funds, including
investment research and management as to all securities and investments and cash
equivalents in the Money Funds. More particularly, the Investment Adviser will:
determine from time to time what securities and other investments will be
purchased, retained, or sold by the Money Funds; maintain office facilities
(which may be in the offices of the Investment Adviser or a corporate affiliate
but shall be in such location as the Trust reasonably determines); furnish
statistical and research data, clerical services and stationery and office
supplies; compile data for, prepare for execution by the Money Funds and file
all the Money Funds' federal and state tax returns
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and required tax filings other than those required to be made by the Money
Funds' custodian and transfer agent; prepare compliance filings pursuant to
state securities laws with the advice of the Trust's counsel; prepare the
Trust's Annual and Semi-Annual Reports to Shareholders and amendments to its
Registration Statements (on Form N-1A or any replacement therefor); compile data
for, prepare and file timely Notices to the SEC required pursuant to Rule 24f-2
under the 1940 Act; perform at the expense of the Money Funds the daily pricing
of portfolio securities and computation of the net asset value and the net
income of each Money Fund in accordance with the Prospectus and resolutions of
the Trust's Board of Trustees; keep and maintain the financial accounts and
records of the Money Funds and provide the Trust with certain reports, all as
more specifically set forth on Schedule A hereto; and generally assist in all
aspects of the operations of the Money Funds.
Subject to the provisions of the Agreement and Declaration of
Trust and the 1940 Act, the Investment Adviser, at its expense, may select and
contract with investment advisers (the "Sub-Advisers") for one or more of the
Money Funds. So long as any Sub-Adviser serves as Sub-Adviser to a Money Fund,
it must be a party to a Sub-Investment Advisory Agreement in substantially the
form attached hereto as Schedule B (the "Sub-Adviser Agreement") and will be
obligated to (i) furnish continuously an investment program as to those assets
of the Trust and the Money Funds involved allocated by the Investment Adviser,
(ii) in connection therewith, adhere to such guidelines as may be established by
the Investment Adviser from time to time to insure compliance with applicable
investment objectives, policies and restrictions of the Trust and the Money
Funds and (iii) place all orders for the purchase and sale of Investments. The
Investment Adviser may also delegate or subcontract some or all of the
Investment Adviser's other duties enumerated in this Agreement. The Investment
Adviser will be responsible for payment of all compensation to all Sub-Advisers
and other persons and entities to which Investment Adviser delegates any duties
hereunder.
The Investment Adviser further agrees that it:
(a) will use the same skill and care in providing such
services as it would use in providing services to fiduciary accounts if
it had investment responsibilities for such accounts;
(b) will conform with all applicable Rules and Regulations of
the SEC and will in addition conduct its activities under this
Agreement in accordance with any applicable regulations of any
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governmental authority pertaining to the investment advisory activities
of the Investment Adviser;
(c) will not make loans to any person to purchase or carry
units of beneficial interest in the Trust or make loans to the Trust;
(d) will place orders pursuant to its investment
determinations for the Money Funds either directly with the issuer or
with an underwriter, market maker, or broker or dealer. In placing
orders with brokers and dealers the Investment Adviser will attempt to
obtain prompt execution of orders in an effective manner at the most
favorable price. Consistent with this obligation, when the execution
and price offered by two or more brokers or dealers are comparable, the
Investment Adviser may, in its discretion, purchase or sell portfolio
securities to and from brokers and dealers who provide the Investment
Adviser or any Sub-Adviser with research advice and other services. In
no instance will portfolio securities be purchased from or sold to the
Investment Adviser or any Sub-Adviser, or any affiliated person of
either the Trust, the Investment Adviser, or any Sub-Adviser, except as
may be permitted under the 1940 Act;
(e) will treat confidentially and as proprietary information
of the Trust all records and other information relative to the Trust,
and will not use such records and information for any purpose other
than performance of its responsibilities and duties hereunder, except
after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld
where the Investment Adviser may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge
such information by duly constituted authorities, or when so requested
by the Trust; and
(f) will direct its personnel when making investment
recommendations for the Trust, not to inquire or take into
consideration whether the issuers of securities proposed for purchase
or sale for the Trust's accounts are customers of the Investment
Adviser or of its parent or its subsidiaries or affiliates. In dealing
with such customers, the Investment Adviser and its parent,
subsidiaries, and affiliates will not inquire or take into
consideration whether securities of those customers are held by the
Trust.
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4. Services to Others. The Trust understands that the Investment
Adviser may in the future act as an investment adviser to fiduciary and other
managed accounts, and as investment adviser, sub-investment adviser, and/or
administrator to other investment companies. The Trust has no objection to the
Investment Adviser's acts in such capacities, provided that whenever one of the
Money Funds and one or more other investment companies advised by the Investment
Adviser have available funds for investment, investments suitable and
appropriate for each will be allocated in accordance with a formula believed by
the Investment Adviser to be equitable to each company. The Trust recognizes
that in some cases this procedure may adversely affect the size of the position
that a Money Fund may obtain in a particular security. In addition, the Trust
understands that the persons employed by the Investment Adviser to assist in the
Investment Adviser's duties under this Agreement will not devote their full time
to such service and nothing contained in this Agreement will be deemed to limit
or restrict the right of the Investment Adviser or any of its affiliates to
engage in and devote time and attention to other businesses or to render
services of whatever kind or nature.
5. Books and Records. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Investment Adviser hereby agrees that all records it
maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request and
will require the same type of agreement from each Sub-Adviser. The Investment
Adviser further agrees to preserve for the periods prescribed by Rule 31a-2
under the 1940 Act the records required to be maintained by Rule 31a-1 under the
1940 Act.
6. Expenses. During the term of this Agreement, the Investment Adviser
will pay all expenses incurred by it in providing general economic and financial
analysis and advice to the Money Funds and providing a continuous investment
program for the Money Funds pursuant to Section 3 above and in providing its
activities under this Agreement other than the cost of securities (including
brokerage commissions, if any) purchased for the Trust. The Investment Adviser
will also pay all compensation of any person or person employed by or associated
with the Investment Adviser to assist in the performance of the Investment
Adviser's obligations under this Agreement, whether or not such person is also a
officer or employee of the Trust, and the Investment Adviser will not cause any
obligation to be incurred on behalf of the Trust in respect of any such
compensation. Other expenses to be incurred in the operation of the Money Funds
-- including without
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limitation taxes, interest, brokerage fees and commissions, if any, fees of
Trustees who are not officers, directors, shareholders, or employees of the
Investment Adviser or any Sub-Adviser, SEC fees and state "blue sky"
qualification fees, advisory and administration fees, costs of performing the
pricing of portfolio securities, transfer and dividend disbursing agents' fees,
certain insurance premiums, outside auditing and legal expenses, costs of
maintaining the Trust's existence as a Massachusetts business trust, typesetting
and printing prospectuses for regulatory purposes and for distribution to
current shareholders of the Money Funds, costs of shareholders' and Trustees'
reports and meetings and any extraordinary expenses -- will be borne by the
Money Funds; provided however, that the Money Funds will not bear, directly or
indirectly, the cost of any activity that is primarily intended to result in the
distribution of shares of the Money Funds.
7. Compensation. For the services provided and the expenses assumed
pursuant to this Agreement for each Money Fund, the Trust will pay the
Investment Adviser out of the assets of such Money Fund and the Investment
Adviser will accept as full compensation therefor an annual fee, computed daily
and paid monthly in arrears, equal to the percentages of such Money Fund's
average daily net assets set forth below.
Schwab Money Market Fund
$1 billion or less 0.46%
Over $1 billion through $3 billion 0.45%
Over $3 billion through $10 billion 0.40%
Over $10 billion through $20 billion 0.37%
Over $20 billion 0.34%
Schwab Government Money Fund and the Schwab Municipal Money Fund
$1 billion or less 0.46%
Over $1 billion through $2 billion 0.41%
Over $2 billion 0.40%
If in any fiscal year the aggregate expenses (as defined under
the securities regulations of any state having jurisdiction over the Trust) of a
Money Fund exceed the expense limitations of any such state, the Investment
Adviser will reimburse such Money Fund for a portion of such excess expenses
equal to such excess times the ratio of the fees otherwise payable by such Money
Fund to the Investment Adviser hereunder to the aggregate fees otherwise payable
by such Money Fund to the Investment Adviser hereunder, and to Xxxxxxx Xxxxxx &
Co., Inc. under the Transfer Agency and Shareholder Servicing Agreement between
it and the Trust. The obligation of the Investment
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Adviser to reimburse a Money Fund hereunder is limited in any fiscal year to the
amount of its fee hereunder from such Money Fund for such fiscal year, provided,
however, that notwithstanding the foregoing, the Investment Adviser will
reimburse each Money Fund for such proportion of such excess expenses regardless
of the amount of fees paid to it during such fiscal year to the extent that the
securities regulations of any state having jurisdiction over the Trust so
require. Such expense reimbursement, if any, will be estimated daily and
reconciled and paid on a monthly basis.
8. Limitation of Liability. The Investment Adviser will not be liable
for any error of judgment or mistake of law or for any loss suffered by the Fund
in connection with the performance of this Agreement, except a loss resulting
from a breach of fiduciary duty with respect to the receipt of compensation for
services or a loss resulting from willful misfeasance, bad faith or gross
negligence on the part of the Investment Adviser in the performance of its
duties or from reckless disregard by it of its obligations and duties under this
Agreement.
9. Duration and Termination. This Agreement will become effective as to
each Money Fund as of the date first written above, provided that it has been
approved by a vote of a majority of the outstanding voting securities of such
Money Fund, in accordance with the requirements under the 1940 Act.
Thereafter, if not terminated as to a Money Fund, this
Agreement will continue in effect as to such Money Fund for successive periods
each ending on May 30 of each year, provided such continuance is specifically
approved at least annually (a) by the vote of a majority of those members of the
Trust's Board of Trustees who are not parties to this Agreement or interested
persons of the Trust, the Investment Adviser, or any Sub-Adviser, cast in person
at a meeting called for the purpose of voting on such approval, and (b) by the
Trust's Board of Trustees or by vote of a majority of the outstanding voting
securities of such Money Fund. Notwithstanding the foregoing, this Agreement may
be terminated at any time on sixty days' written notice, without the payment of
any penalty, by the Trust (by vote of the Trust's Board of Trustees or by vote
of a majority of the outstanding voting securities of such Money Fund) or by the
Investment Adviser. This Agreement will immediately terminate in the event of
its assignment. (As used in this Agreement, the terms "majority of the
outstanding voting securities," "interested persons" and "assignment" shall have
the same meaning of such terms in the 1940 Act.)
10. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing
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signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
11. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by the laws of the State of California.
The names "The Xxxxxxx Xxxxxx Family of Funds" and "Trustees
of The Xxxxxxx Xxxxxx Family of Funds" refer respectively to the Trust created
and the Trustees, as trustees but not individually or personally, acting from
time to time under the Declaration of Trust, to which reference is hereby made
and a copy of which is on file at the office of the Secretary of The
Commonwealth of Massachusetts and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of "The
Xxxxxxx Xxxxxx Family of Funds" entered into in the name or on behalf thereof by
any of the Trustees, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees, interest holders
or representatives of the Trust personally, but bind only the assets of the
Trust, and all persons dealing with any series of units of interest of the Trust
must look solely to the assets of the Trust belonging to such series for the
enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
THE XXXXXXX XXXXXX FAMILY OF FUNDS
By: ________________________________
Name: Xxxxxxx X. XxXxxxxx
Title: President and Trustee
XXXXXXX XXXXXX INVESTMENT
MANAGEMENT, INC.
By: ________________________________
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Operating Officer
