Exhibit (5)(a)
MANAGEMENT AGREEMENT
Agreement, made this 16th day of December, 1994
between The Gabelli Money Market Funds, a Delaware business
trust (the "Trust"), and Gabelli Funds, Inc., a New York
corporation (the "Manager"). This Agreement shall not
become effective as to any Series (as hereafter defined)
unless the shareholders of such Series approve this
Agreement.
W I T N E S S E T H
WHEREAS, the Trust operates as a diversified, open-end
management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"),
for the purpose of investing and reinvesting the assets of
its one or more series of shares (each a "Series," each of
which is listed in Appendix A hereto as it may be amended
from time to time) in securities pursuant to investment
objectives and policies as set forth more fully in its
Declaration of Trust, its By-Laws and its Registration
Statement (each as hereafter defined) as amended and
supplemented from time to time; and
WHEREAS, the Trust desires to retain the Manager to
render or contract to obtain as hereinafter provided
investment advisory services to the Trust and the Trust also
desires to avail itself of the facilities available to the
Manager with respect to the administration of its day to day
business affairs, and the Manager is willing to render such
investment advisory and administrative services;
NOW, THEREFORE, the parties agree as follows:
1. The Trust hereby appoints the Manager to act as
manager of the Trust and administrator of its business
affairs for the period and on the terms set forth in this
Agreement. The Manager accepts such appointment and agrees
to render the services herein described, for the
compensation herein provided. The Manager may enter into an
agreement, with one or more sub-advisers (each, a
"Sub-Adviser") pursuant to which each Sub-Adviser shall
furnish to the Trust on behalf of one or more Series the
investment advisory services specified therein in connection
with the management of the Trust. Any such agreements shall
be in the form attached as Appendix B, shall pertain to the
Series listed therein, and are hereinafter referred to
collectively as the "Sub-Advisory Agreement." The Manager
will continue to have responsibility for all investment
advisory services furnished pursuant to the Sub-Advisory
Agreement.
2. Subject to the supervision of the Trustees of
the Trust, the Manager shall administer the Trust's business
affairs and, in connection therewith, shall furnish the
Trust with office facilities and with clerical, bookkeeping
and recordkeeping services at such office facilities and,
subject to Paragraph 1 hereof and the Sub-Advisory
Agreement, the Manager shall manage the investment
operations of each Series of the Trust and the composition
of the portfolio of each Series, including the purchase,
retention and disposition thereof, in accordance with the
Trust's investment objectives, policies and restrictions of
each such Series as stated in the Prospectus (hereinafter
defined) and subject to the following understandings:
(a) The Manager shall provide supervision of each
Series' investments and determine from time to time what
investments or securities will be purchased, retained, sold
or loaned by each Series of the Trust, and what portion of
the assets will be invested or held uninvested as cash.
(b) The Manager, in the performance of its duties
and obligations under this Agreement, shall act in
conformity with the Declaration of Trust, By-Laws and
Prospectus (hereinafter defined) of the Trust and with the
instructions and directions of the Trustees of the Trust and
will conform to and comply with the requirements of the 1940
Act and all other applicable federal and state laws and
regulations.
(c) The Manager shall determine the securities to be
purchased or sold by each Series of the Trust and will place
orders pursuant to its determinations with or through such
persons, brokers, dealers in conformity with the policy with
respect to brokerage as set forth in the Trust's
Registration Statement and Prospectus (hereinafter defined)
or as the Trustees may direct from time to time. In
providing the Trust with investment supervision, it is
recognized that the Manager will give primary consideration
to securing the most favorable price and efficient
execution. Consistent with this policy, the Manager may
consider the financial responsibility, research and
investment information and other services provided by
brokers or dealers who may effect or be a party to any such
transaction or other transactions to which other clients of
the Manager may be a party. It is also understood that it
is desirable for the Trust that the Manager have access to
supplemental investment and market research and security and
economic analysis provided by brokers and that such brokers
may execute brokerage transactions at a higher cost to the
Trust than may result when allocating brokerage to other
brokers on the basis of seeking the most favorable price and
efficient execution. Therefore, the Manager is authorized
to pay higher brokerage commissions for the purchase and
sale of securities for each series of the Trust to brokers
who provide such research and analysis, subject to review by
the Trust's Trustees from time to time with respect to the
extent and continuation of this practice. It is understood
that the services provided by such broker may be useful to
the Manager in connection with its services to other
clients.
On occasions when the Manager deems the purchase or
sale of a security to be in the best interest of the Trust
(and each Series of the Trust) as well as other clients of
the Manager or the one or more Sub-Advisers, if any, the
Manager, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to,
aggregate the securities to be so sold or purchased in order
to obtain the most favorable price or lower brokerage
commissions and efficient execution. In such event,
allocation of the securities so purchased or sold, as well
as the expenses incurred in the transaction, will be made by
the Manager in the manner it considers to be the most
equitable and consistent with its fiduciary obligations to
the Trust (and each such Series of the Trust) and to such
other clients.
(d) The Manager shall maintain all books and records
with respect to the Trust's portfolio transactions and shall
render to the Trust's Trustees such periodic and special
reports as the Trustees may reasonably request.
(e) The Manager shall be responsible for the
financial and accounting records to be maintained by the
Trust (including those being maintained by the Trust's
Custodian).
(f) The investment management services of the
Manager to the Trust under this Agreement are not to be
deemed exclusive, and the Manager shall be free to render
similar services to others.
3. The Trust has delivered to the Manager copies of
each of the following documents and will deliver to it all
future amendments and supplements, if any:
(a) Certificate of Trust of the Trust, as filed with
the Secretary of State of Delaware, and Declaration of Trust
of the Trust (such Certificate of Trust and Declaration of
Trust, as in effect on the date hereof and as amended from
time to time, are herein called the "Certificate of Trust"
and "Declaration of Trust," respectively);
(b) By-Laws of the Trust (such By-Laws, as in effect
on the date hereof and as amended from time to time, are
herein called the "By-Laws");
(c) Certified resolutions of the Trustees of the
Trust authorizing the appointment of the Manager and
approving the form of this Agreement;
(d) Registration Statement under the 1940 Act and
the Securities Act of 1933, as amended, on Form N-lA (the
"Registration Statement"), as filed with the Securities and
Exchange Commission (the "Commission") relating to the Trust
and shares of beneficial interest of the Trust and all
amendments thereto;
(e) Notification of Registration of the Trust under
the 1940 Act on Form N-8A as filed with the Commission and
all amendments thereto; and
(f) Prospectus of the Trust (such Prospectus and
Statement of Additional Information, as currently in effect
and as amended or supplemented from time to time, being
herein called the "Prospectus").
4. The Manager shall authorize and permit any of
its directors, officers and employees who may be elected as
Trustees or officers of the Trust to serve in the capacities
in which they are elected. All services to be furnished by
the Manager under this Agreement may be furnished through
the medium of any such directors, officers or employees of
the Manager.
5. The Manager shall keep the Trust's books and
records required to be maintained by it pursuant to
Paragraph 2 hereof. The Manager agrees that all records
which it maintains for the Trust are the property of the
Trust and it will surrender promptly to the Trust any such
records upon the Trust's request, provided however that the
Manager may retain a copy of such records. The Manager
further agrees to preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act any such records as are
required to be maintained by the Manager pursuant to
Paragraph 2 hereof.
6. During the term of this Agreement, the Manager
shall pay the following expenses:
(i) the salaries and expenses of all personnel of the
Trust and the Manager except the fees and expenses of
Trustees who are not affiliated persons of the Manager or
the Trust's investment adviser,
(ii) all expenses incurred by the Manager or by the
Trust in connection with managing the ordinary course of the
Trust's business other than those assumed by the Trust
herein,
(iii) the costs and expenses payable to the
Sub-Advisers, if any, pursuant to the Sub-Advisory
Agreement, and
(iv) the fee of the Trust's Administrator that
relates to the performance of certain administrative
services necessary for the Trust's operations.
The Trust assumes and will pay the expenses described
below:
(a) the fees and expenses incurred by each Series of
the Trust in connection with the management of the
investment and reinvestment of the assets of each Series,
(b) the fees and expenses of Trustees who are not
affiliated persons of the Manager or any Sub-Adviser,
(c) the fees and expenses of the Custodian that
relate to (i) the custodial function and the recordkeeping
connected therewith, (ii) preparing and maintaining the
general accounting records of the Trust and the providing of
any such records to the Manager useful to the Manager in
connection with the Manager's responsibility for the
accounting records of the Trust pursuant to Section 31 of
the 1940 Act and the rules promulgated thereunder, (iii) the
pricing of the shares of each Series of the Trust, including
the costs of any pricing service or services which may be
retained pursuant to the authorization of the Trustees of
the Trust, and (iv) for both mail and wire orders, the
cashiering function in connection with the issuance and
redemption of the Trust's securities,
(d) the fees and expenses of the Trust's Transfer
and Dividend Disbursing Agent, which may be the Custodian,
that relate to the maintenance of each shareholder account,
(e) the charges and expenses of legal counsel and
independent accountants for the Trust,
(f) brokers' commissions and any issue or transfer
taxes chargeable to each Series of the Trust in connection
with its securities,
(g) all taxes and business fees payable by the Trust
to federal, state or other governmental agencies,
(h) the fees of any trade associations of which the
Trust may be a member,
(i) the cost of share certificates representing,
and/or non-negotiable share deposit receipts evidencing,
shares of each Series of the Trust, if any,
(j) the cost of fidelity, trustees and officers and
errors and omissions insurance,
(k) the fees and expenses involved in registering
and maintaining registration of the Trust and of its shares
with the Securities and Exchange Commission, registering the
Trust as a broker or dealer and qualifying its shares under
state securities laws, including the preparation and
printing of the Trust's registration statements,
prospectuses and statements of additional information for
filing under federal and state securities laws for such
purposes,
(l) allocable communications expenses with respect
to investor services and all expenses of shareholders' and
Trustees' meetings and of preparing, printing and mailing
reports to shareholders in the amount necessary for
distribution to the shareholders,
(m) litigation and indemnification expenses and
other extraordinary expenses not incurred in the ordinary
course of the Trust's business, and
(n) any expenses assumed by the Trust pursuant to a
Plan of Distribution adopted in conformity with Rule 12b-1
under the 1940 Act, if any.
7. In the event the expenses of the Trust for any
fiscal year (including the fees payable to the Manager but
excluding interest, taxes, brokerage commissions,
distribution fees and litigation and indemnification
expenses and other extraordinary expenses not incurred in
the ordinary course of the Trust's business) exceed the
lowest applicable annual expense limitation established and
enforced pursuant to the statute or regulations of any
jurisdictions in which shares of the Trust are then
qualified for offer and sale, the compensation due the
Manager will be reduced by the amount of such excess.
8. For the services provided and the expenses
assumed pursuant to this Agreement, the Trust will pay to
the Manager as full compensation therefor a fee calculated
as a specified percentage of the average daily net asset
value of each Series. Such fee, which will be computed daily
and paid monthly, shall be calculated at the annual
percentage rate set forth for the particular Series in
Appendix C to this Agreement. Any reduction in the fee
payable and any payment by the Manager to the Trust pursuant
to paragraph 7 shall be made monthly. Any such reductions
or payments are subject to readjustment during the year.
The fee payable to the Manager with respect to each Series
of the Trust shall be paid solely out of each such Series'
assets, and no Series shall be responsible for the payment
of a management fee calculated for or attributable to
another Series.
9. The Manager shall not be liable for any error of
judgment or for any loss suffered by the Trust in connection
with the matters to which this Agreement relates, except a
loss resulting from a breach of fiduciary duty with respect
to the receipt of compensation for services (in which case
any award of damages shall be limited to the period and the
amount set forth in Section 36(b)(3) of the 0000 Xxx) or
loss resulting from willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties or
from reckless disregard by it of its obligations and duties
under this Agreement.
10. This Agreement shall continue in effect for a
period of more than two years from the date hereof only so
long as such continuance is specifically approved at least
annually with respect to each Series in conformity with the
requirements of the 1940 Act; provided, however, that this
Agreement may be terminated with respect to any Series by
the Trust at any time, without the payment of any penalty,
by the Trustees of the Trust or by vote of a majority of the
outstanding voting securities (as defined in the 0000 Xxx)
of such Series, or by the Manager at any time, without the
payment of any penalty, on not more than 60 days' nor less
than 30 days' written notice to the other party. This
Agreement shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
11. Nothing in this Agreement shall limit or
restrict the right of any director, officer or employee of
the Manager who may also be a Trustee, officer or employee
of the Trust to engage in any other business or to devote
his or her time and attention in part to the management or
other aspects of any business, whether of a similar or
dissimilar nature, nor limit or restrict the right of the
Manager to engage in any other business or to render
services of any kind to any other corporation, firm,
individual or association.
12. Except as otherwise provided herein or
authorized by the Trustees of the Trust from time to time,
the Manager shall for all purposes herein be deemed to be an
independent contractor and shall have no authority to act
for or represent the Trust in any way or otherwise be deemed
an agent of the Trust.
13. During the term of this Agreement, the Trust
agrees to furnish the Manager at its principal office all
prospectuses, proxy statements, reports to shareholders,
sales literature, or other material prepared for
distribution to shareholders of the Trust or the public,
which refer in any way to the Manager, prior to use thereof
and not to use such material if the Manager reasonably
objects in writing within five business days (or such other
time as may be mutually agreed) after receipt thereof. In
the event of termination of this Agreement, the Trust will
continue to furnish to the Manager copies of any of the
above mentioned materials which refer in any way to the
Manager. Sales literature may be furnished to the Manager
hereunder by first-class or overnight mail, facsimile
transmission equipment or hand delivery. The Trust shall
furnish or otherwise make available to the Manager such
other information relating to the business affairs of the
Trust as the Manager at any time, or from time to time,
reasonably requests in order to discharge its obligations
hereunder.
14. This Agreement may be amended by mutual consent,
but the consent of each Series of the Trust must be obtained
in conformity with the requirements of the 1940 Act.
15. Any notice or other communication required to be
given pursuant to this Agreement shall be deemed duly given
if delivered or mailed by registered mail, postage prepaid,
(1) to the Manager at Xxx Xxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx
00000-0000, Attention: Secretary; or (2) to the Trust at
Xxx Xxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx, 00000-0000, Attention:
President.
16. This Agreement shall be governed by and
construed in accordance with the laws of the State of New
York.
17. The Trust may use the name "The Gabelli Money
Market Funds" and the Trust and each of its Series may use
any name including the word "Gabelli" only for so long as
this Agreement or any extension, renewal or amendment hereof
remains in effect, including any similar agreement with any
organization which shall have succeeded to the Manager's
business as Manager or any extension, renewal or amendment
thereof, or for so long as the Manager is responsible for
the portfolio management and administrative services of the
Trust. At such time as such an agreement shall no longer be
in effect, or at such time when the Manager ceases to be
responsible for the portfolio management and administration
services of the Trust, the Trust and each Series will (to
the extent that it lawfully can) cease to use the name
"Gabelli" or any other name indicating that the Trust or any
Series is advised by, managed by or otherwise connected with
the Manager, or any organization which shall have so
succeeded to such businesses, unless the Manager otherwise
consents in writing.
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 GABELLI MONEY MARKET FUNDS
By /s/ Xxxxx X. Xxxxxx
GABELLI FUNDS, INC.
By /s/ X. Xxxxxxxx Xxxxxxxx
APPENDIX A
Series Covered by Fund Management Agreement
The Gabelli U.S. Treasury Money Market Fund
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