EXHIBIT B5
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 4th day of January, 1996 by and between XXXXXX MONEY MARKET
FUND, a Massachusetts business trust (the "Fund"), and XXXXXX FINANCIAL
SERVICES, INC., a Delaware corporation (the "Adviser").
WHEREAS, the Fund is an open-end, diversified management investment company
registered under the Investment Company Act of 1940, the shares of beneficial
interest ("Shares") of which are registered under the Securities Act of 1933;
and
WHEREAS, the Fund is authorized to issue Shares in separate series with each
such series representing the interests in a separate portfolio of securities and
other assets; and
WHEREAS, the Fund wants to retain the Adviser under this Agreement to render
investment advisory and management services to the portfolios of the Fund known
as the Money Market Portfolio, Government Securities Portfolio and Tax-Exempt
Portfolio (the "Initial Portfolios"), together with any other Fund portfolios
which may be established later and served by the Adviser hereunder, being herein
referred to collectively as the "Portfolios" and individually referred to as a
"Portfolio"; and
WHEREAS, the Adviser is willing to render such investment advisory and
management services for the Initial Portfolios;
NOW THEREFORE, in consideration of the mutual covenants hereinafter contained,
it is hereby agreed by and between the parties hereto as follows:
1. The Fund hereby employs the Adviser to act as the investment adviser for
the Initial Portfolios or other Portfolios hereunder and to manage the
investment and reinvestment of the assets of such Portfolios in accordance with
applicable investment objectives and policies and limitations, and to administer
their affairs to the extent requested by and subject to the supervision of the
Board of Trustees of the Fund for the period and upon the terms herein set
forth. The investment of funds shall be subject to all applicable restrictions
of the Agreement and Declaration of Trust and By-laws of the Fund as may from
time to time be in force.
The Adviser accepts such employment and agrees during such period to render such
services, to furnish office facilities and equipment, to provide clerical,
bookkeeping and administrative services for the Fund, to provide shareholder and
information
services, to permit any of its officers or employees to serve without
compensation as trustees or officers of the Fund if elected to such positions
and to assume the obligations herein set forth for the compensation herein
provided. The Adviser shall for all purposes herein provided be deemed to be an
independent contractor, and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Fund in any way or otherwise
be deemed an agent of the Fund. It is understood and agreed that the Adviser, by
separate agreement with the Fund, may also act as underwriter for the Fund.
2. In the event that the Fund establishes one or more portfolios other than
the Initial Portfolios with respect to which it desires to retain the Adviser to
render investment advisory and management services hereunder, it shall notify
the Adviser in writing. If the Adviser is willing to render such services it
shall notify the Fund in writing whereupon such portfolio or portfolios shall
become a Portfolio or Portfolios hereunder.
3. For the services and facilities described in Section 1, the Fund will pay
to the Adviser at the end of each calendar month, an investment management fee
computed by applying the following annual rate to the combined average daily net
assets of the Portfolios:
Annual Rate Average Daily Net Assets
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.50 of 1% on the first $215 million
.375 of 1% on the next $335 million
.30 of 1% on the next $250 million
.25 of 1% on average net assets
over $800 million
The fee as computed above shall be allocated to each Portfolio based upon the
relative average daily net assets of each Portfolio managed by the Adviser.
If expenses borne by the Portfolios which the Adviser manages in any fiscal year
(including the Adviser's fee, but excluding interest, taxes, fees incurred in
acquiring and disposing of portfolio securities and, to the extent permitted,
extraordinary expenses), exceed 1.5% of average daily net assets of the
Portfolios up to $30 million and 1% of average daily net assets of the
Portfolios over $30 million, the Adviser will reduce its fee or reimburse the
Fund for any excess. The expense limitation guarantee shall be allocated to each
Portfolio upon a fee
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reduction or reimbursement based upon the relative average daily net assets of
each Portfolio. If for any month the expenses of the Portfolios properly
chargeable to the income account shall exceed 1/12 of the percentage of daily
net assets allowable as expenses, the payment to the Adviser for that month
shall be reduced, and, if necessary, the Adviser shall make a refund payment to
the Fund so that the total net expense will not exceed such percentage. As of
the end of the Fund's fiscal year, however, the foregoing computations and
payments shall be readjusted so that the aggregate compensation payable to the
Adviser for the year is equal to the percentage set forth herein of the average
daily net assets as determined as described herein throughout the fiscal year,
diminished to the extent necessary so that the total of said expense item shall
not exceed the expense limitation. The aggregate of repayments, if any, by the
Adviser to the Fund for the year shall be the amount necessary to limit the said
net expense to said percentage.
The net asset value of each Portfolio shall be calculated in accordance with the
provisions of the Fund's prospectus or at such other time or times as the
trustees may determine in accordance with the provisions of the Investment
Company Act of 1940. On each day when net asset value is not calculated, the net
asset value of a Share of a Portfolio shall be deemed to be the net asset value
of such a Share as of the close of business on the last day on which such
calculation was made for the purpose of the foregoing computations.
For the month and year in which this Agreement becomes effective or terminates,
there shall be an appropriate proration on the basis of the number of days that
the Agreement is in effect during the month and year, respectively. The services
of the Adviser to the Fund under this Agreement are not to be deemed exclusive,
and the Adviser shall be free to render similar services or other services to
others so long as its services hereunder are not impaired thereby.
4. In addition to the fee of the Adviser, the Fund shall assume and pay any
expenses for services rendered by a custodian for the safekeeping of the Fund's
securities or other property, for keeping its books of account, for any other
charges of the custodian and for calculating the net asset value of the Fund as
provided in the Prospectus of the Fund. The Adviser shall not be required to pay
and the Fund shall assume and pay the charges and expenses of its operations,
including compensation of the trustees (other than those affiliated with the
Adviser), charges and expenses of independent auditors, of legal counsel, of any
transfer or dividend disbursing agent or any registrar of the Fund, costs of
acquiring and disposing of portfolio securities, interest, if any, on
obligations incurred by the Fund, costs of share certificates and of reports,
membership dues in the Investment Company Institute or any similar organization,
costs
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of reports and notices to shareholders, other like miscellaneous expenses and
all taxes and fees payable to federal, state or other governmental agencies on
account of the registration of securities issued by the Fund, filing of
corporate documents or otherwise. The Fund shall not pay or incur any obligation
for any management or administrative expenses for which the Fund intends to seek
reimbursement from the Adviser as herein provided without first obtaining the
written approval of the Adviser. The Adviser shall arrange, if desired by the
Fund, for officers or employees of the Adviser to serve, without compensation
from the Fund, as trustees, officers or agents of the Fund if duly elected or
appointed to such positions and subject to their individual consent and to any
limitations imposed by law.
5. Subject to applicable statutes and regulations, it is understood that
trustees, officers, or agents of the Fund are or may be interested in the
Adviser as officers, directors, agents, shareholders or otherwise, and that the
officers, directors, shareholders and agents of the Adviser may be interested in
the Fund otherwise than as a trustee, officer or agent.
6. The Adviser shall not be liable for any error of judgment or of law, or for
any loss suffered by the Fund in connection with the matters to which this
Agreement relates, except loss resulting from willful misfeasance bad faith or
gross negligence on the part of the Adviser in the performance of its
obligations and duties, or by reason of its reckless disregard of its
obligations and duties under this Agreement.
7. This Agreement shall become effective on the date hereof and shall remain
in full force until December 1, 1996, unless sooner terminated as hereinafter
provided. This Agreement shall continue in force from year to year thereafter,
but only as long as such continuance is specifically approved at least annually
for each Portfolio in the manner required by the Investment Company Act of 1940;
provided, however, that if the continuation of this Agreement is not approved
for a Portfolio, the Adviser may continue to serve in such capacity for such
Portfolio in the manner and to the extent permitted by the Investment Company
Act of 1940 and the rules and regulations thereunder.
This Agreement shall automatically terminate in the event of its assignment, and
may be terminated at any time without the payment of any penalty with respect to
any or all Portfolios by the Fund or by the Adviser on sixty (60) days written
notice to the other party. The Fund may effect termination with respect to any
Portfolio by action of the Board of Trustees or by vote of a majority of the
outstanding shares of such Portfolio, accompanied by appropriate notice.
This Agreement may be terminated with respect to any Portfolio at any time
without the payment of any penalty by the Board of
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Trustees or by vote of a majority of the outstanding Shares of such Portfolio in
the event that it shall have been established by a court of competent
jurisdiction that the Adviser or any officer or director of the Adviser has
taken any action which results in a breach of the covenants of the Adviser set
forth herein.
Termination of this Agreement shall not affect the right of the Adviser to
receive payments on any unpaid balance of the compensation described in Section
3 earned prior to such termination.
8. If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder shall not be thereby
affected.
9. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as such
other party may designate for the receipt of such notice.
10. All parties hereto are expressly put on notice of the Xxxxxx Money Market
Fund Agreement and Declaration of Trust and all amendments thereto, all of which
are on file with the Secretary of The Commonwealth of Massachusetts, and the
limitation of shareholder and trustee liability contained therein. This
Agreement has been executed by and on behalf of the Fund by its representatives
as such representatives and not individually, and the obligations of the Fund
hereunder are not binding upon any of the Trustees, officers or shareholders of
the Fund individually but are binding upon only the assets and property of the
Fund. With respect to any claim by Adviser for recovery of that portion of the
investment management fee (or any other liability of the Fund arising hereunder)
allocated to a particular Portfolio, whether in accordance with the express
terms hereof or otherwise, the Adviser shall have recourse solely against the
assets of that Portfolio to satisfy such claim and shall have no recourse
against the assets of any other Portfolio for such purpose.
11. This Agreement shall be construed in accordance with applicable federal law
and (except as to Section 10 hereof which shall be construed in accordance with
the laws of the Commonwealth of Massachusetts) the laws of the State of
Illinois.
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12. This agreement is the entire contract between the parties relating to the
subject matter hereof and supersedes all prior agreements between the parties
relating to the subject matter hereof.
IN WITNESS WHEREOF, the Fund and the Adviser have caused this Agreement to be
executed as of the day and year first above written.
XXXXXX MONEY MARKET FUND
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President
ATTEST:
/s/ Xxxxxx X. Xxxxxxx
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Title: Secretary
XXXXXX FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Title: Senior Vice President
ATTEST:
/s/ Xxxxx X. Xxxxxxxxxxx
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Title: Assistant Secretary
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