Exhibit 5(i)
THE BENCHMARK FUNDS
INVESTMENT ADVISORY AGREEMENT
(International Growth Portfolio)
AGREEMENT made this ____ day of ________, 199_ among THE BENCHMARK FUNDS, a
Massachusetts business trust (the "Trust"), THE NORTHERN TRUST COMPANY, an
Illinois state bank ("Northern"), and RCB TRUST COMPANY, a Connecticut state-
chartered trust company ("RCB Trust").
WITNESSETH:
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue units of beneficial interest
("Units") in separate series with each such series representing interests in a
separate portfolio of securities and other assets; and
WHEREAS, the Trust presently offers Units in a portfolio known as the
International Growth Portfolio (such Portfolio (the "Current Portfolio")
together with all other portfolios hereafter made subject to this Agreement
being herein collectively referred to as the "Portfolios"); and
WHEREAS, the Trust desires to retain Northern and RCB Trust (the
"Advisers") to render investment advisory services to the Current Portfolio as
indicated below and the Advisers are willing to so render such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment of Advisers.
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(a) The Trust hereby appoints the Advisers to act as investment
advisers to the Current Portfolio for the period and on the
terms herein set forth. The Advisers hereby accept such
appointment and agree to render the services herein set
forth for the compensation herein provided.
(b) In the event that the Trust establishes one or more
portfolios other than the Current Portfolio with respect to
which it desires to
retain the Advisers to act as investment advisers hereunder,
it shall notify the Advisers in writing. If the Advisers are
willing to render such services under this Agreement they
shall notify the Trust in writing whereupon such portfolio
shall become a Portfolio hereunder and shall be subject to
the provisions of this Agreement to the same extent as the
Current Portfolio except to the extent that said provisions
(including those relating to the compensation payable by the
Trust to the Advisers) are modified with respect to such
Portfolio in writing by the Trust and the Advisers at the
time.
2. Delivery of Documents. The Trust has delivered (or will deliver as
soon as is possible) to the Advisers copies of each of the following documents:
(a) Agreement and Declaration of Trust dated as of July 15,
1982, together with all Amendments thereto (such Agreement
and Declaration of Trust, as presently in effect and as
amended from time to time, is herein called the "Trust
Agreement"), copies of which are also on file with the
Secretary of The Commonwealth of Massachusetts;
(b) By-Laws of the Trust (such By-Laws, as presently in effect
and as amended from time to time, are herein called the "By-
Laws");
(c) Administration Agreement between the Trust and its
Administrator;
(d) Distribution Agreement between the Trust and its
Distributor;
(e) Custodian Agreement between the Trust and its Custodian;
(f) Transfer Agency Agreement between the Trust and its Transfer
Agent;
(g) The Trust's Unitholder Servicing Plan and related Servicing
Agreements;
(h) Prospectus and Statement of Additional Information for the
Current Portfolio (such Prospectus and Statement of
Additional Information, as presently in effect and as
amended, supplemented and/or superseded from
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time to time, is herein called the "Prospectus" and
"Statement of Additional Information," respectively); and
(i) Post-Effective Amendment No. 34 to the Trust's Registration
Statement on Form N-1A (No. 2-80543) under the Securities
Act of 1933 (the "1933 Act") and Amendment No. 35 to the
Trust's Registration Statement on such form (No. 811-3605)
under the 1940 Act filed as a single document with the
Securities and Exchange Commission (the "SEC") (such
Registration Statement, as presently in effect and as
amended from time to time, is herein called the
"Registration Statement").
The Trust agrees to promptly furnish the Advisers from time to time
with copies of all amendments of or supplements to or otherwise current versions
of any of the foregoing documents not heretofore furnished.
3. Duties of Advisers and Delegation.
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(a) Subject to the general supervision of the Trustees of the
Trust, the Advisers shall provide for the management of the
investment operations of a Portfolio and the composition of
a Portfolio's assets, including the purchase, retention and
disposition thereof. In this regard, the Adviser shall
provide for:
(i) a continuous investment program for a Portfolio, the
determination from time to time of which investments or
securities will be purchased, retained or sold by a
Portfolio and which portion of the assets will be
invested or held uninvested as cash, and the
supervision of a Portfolio's assets; and
(ii) the placement of orders for a Portfolio either directly
with the issuer or with any broker and/or dealer or
other persons who deal in the securities in which the
Portfolio in question is dealing. Any person executing
portfolio transactions or selecting brokers or dealers
for a Portfolio shall use its best judgment to obtain
the best overall terms available. In assessing the
best overall terms available for any
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transaction, all factors deemed relevant may be
considered, including the breadth of the market in the
security, the price of the security, the financial
condition and execution capability of the broker or
dealer, and the reasonableness of the commission, if
any, both for the specific transaction and on a
continuing basis. In evaluating the best overall terms
available and in selecting the broker or dealer to
execute a particular transaction, the brokerage and
research services (as those terms are defined in
section 28(e) of the Securities Exchange Act of 1934)
provided to the Portfolio and/or other accounts over
which an Adviser, sub-adviser and/or affiliate
exercises investment discretion may be considered. In
addition, any person executing portfolio transactions
may, when it deems the purchase or sale of a security
to be in the best interests of a Portfolio as well as
other fiduciary or agency accounts managed by it,
aggregate, to the extent permitted by applicable laws
and regulations, the securities to be sold or purchased
in order to obtain best overall terms available
execution. In such event, allocation of the securities
so purchased or sold, as well as the expenses incurred
in the transaction, will be made in the manner
considered to be most equitable and consistent with the
fiduciary obligations owed to the Portfolio and to such
other accounts.
(b) The Advisers shall perform their duties under this Agreement
either by taking such actions themselves or by delegating
some or all of their duties to one or more sub-advisers
pursuant to a written sub-advisory agreement or agreements.
Each such sub-advisory agreement shall be approved by the
Board of Trustees of the Trust and the unitholders of the
Portfolio in accordance with and to the extent required by
the 1940 Act or any rule or order of the SEC. The Advisers
will be solely responsible for payment of any fees,
compensation or expenses to any such sub-adviser under any
such sub-advisory agreement, and a Portfolio shall have no
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liability therefor. Notwithstanding the delegation of any
of their duties to any sub-adviser, the Advisers, subject to
review and approval by the Board of Trustees of the Trust,
shall:
(i) set a Portfolio's overall investment strategies;
(ii) monitor and evaluate the performance of sub-
advisers;
(iii) recommend to the Board of Trustees whether an
agreement with any proposed or current sub-adviser
should be approved, modified or terminated;
(iv) as deemed appropriate by the Advisers, allocate and
re-allocate a Portfolio's assets among sub-advisers;
and
(v) oversee compliance by a Portfolio's sub-advisers with
the Portfolio's investment objective, policies and
restrictions.
4. Other Covenants.
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(a) The Advisers, in connection with their rights and duties
with respect to a Portfolio,
(i) shall use the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person
acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a
like character and with like aims; and
(ii) shall act in conformity with the Trust Agreement, By-
Laws, Registration Statement, Prospectus and Statement
of Additional Information and the instructions and
directions of the Trustees of the Trust, and will use
their best efforts to comply with and conform to the
requirements of the 1940 Act and all other applicable
federal and state laws, regulations and rulings.
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(b) The Advisers shall:
(i) comply with all applicable Rules and Regulations of the
SEC and will in addition conduct their activities under
this Agreement in accordance with other applicable law;
and
(ii) maintain a policy and practice of conducting their
investment advisory services hereunder independently of
the commercial banking operations of Northern and any
of its affiliated banks. When investment
recommendations are made for a Portfolio, the
investment advisory personnel will not inquire or take
into consideration whether the issuer of securities
proposed for purchase or sale for the Portfolio's
account are customers of the commercial banking
department of Northern or any of its affiliated banks.
(c) The Advisers shall not, unless permitted by the SEC:
(i) permit a Portfolio to execute transactions with the
Advisers or Xxxxxxx, Xxxxx & Co.; or
(ii) permit a Portfolio to purchase certificates of deposit
of Northern or its affiliate banks, commercial paper
issued by Northern's parent holding company or other
securities issued or guaranteed by Northern, its parent
holding company or their subsidiaries or affiliates.
(d) The Advisers shall render to the Trustees of the Trust such
periodic and special reports as the Trustees may reasonably
request.
(e) The services of the Advisers hereunder are not deemed
exclusive and the Advisers shall be free to render similar
services to others (including other investment companies) so
long as their services under this Agreement are not impaired
thereby.
5. Expenses. During the term of this Agreement, the Advisers shall pay
all costs incurred by them in connection with
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the performance of their duties under this Agreement, other than the cost
(including taxes, brokerage commissions and other transactions costs, if any) of
securities purchased or sold for a Portfolio.
6. Compensation.
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(a) For the services provided and the expenses assumed by the
Advisers pursuant to this Agreement with respect to the
Current Portfolio, the Trust shall pay as full compensation
therefor an aggregate fee to the Advisers at an annual rate
of 1.00% of the Current Portfolio's average net assets.
(b) The fee shall be computed based on net assets on each day
and shall be paid to the Advisers monthly. Such fee as is
attributable to a Portfolio shall be a separate charge to
the Portfolio and shall be the several (and not joint or
joint and several) obligation of the Portfolio.
7. Books and Records. The Advisers agree to maintain, and preserve
for the periods prescribed by Rule 31a-2 of the SEC under the 1940 Act, such
records as are required to be maintained by Rule 31a-1 of the SEC under the 1940
Act (other than clause (b)(4) and paragraphs (c), (d) and (e) thereof). The
Advisers further agree that all records which they maintain for the Trust are
the property of the Trust and they shall surrender promptly to the Trust any of
such records upon the Trust's request.
8. Indemnification.
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(a) The Trust hereby agrees to indemnify and hold harmless the
Advisers, their directors, officers, and employees and each
person, if any, who controls either of them (collectively,
the "Indemnified Parties") against any and all losses,
claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the 1933 Act,
the Securities Exchange Act of 1934 or other federal or
state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon:
(i) any untrue statement or alleged untrue statement of a
material fact or any
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omission or alleged omission to state a material fact
required to be stated or necessary to make the
statements made not misleading in the Registration
Statement, the Prospectus, the Statement of Additional
Information, or any application or other document filed
in connection with the qualification of the Trust or
Units of the Trust under the Blue Sky or securities
laws of any jurisdiction ("Application"), except
insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are
based upon any such untrue statement or omission or
alleged untrue statement or omission either pertaining
to a breach of the Advisers' duties in connection with
this Agreement or made in reliance upon and in
conformity with information furnished by, through or on
behalf of the Advisers for use in connection with the
Registration Statement, any Application, the Prospectus
or the Statement of Additional Information; or
(ii) subject to clause (i) above, the Advisers acting in
accordance with the terms hereof;
and the Trust shall reimburse each Indemnified Party for any
legal or other expense incurred by such Indemnified Party in
connection with investigating or defending any such loss,
claim, damages, liability or action.
(b) If the indemnification provided for in paragraph 8(a) is due
in accordance with the terms of such paragraph but is for
any reason held by a court to be unavailable from the Trust,
then the Trust shall contribute to the aggregate amount paid
or payable by the Trust and the Indemnified Parties as a
result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as
appropriate to reflect (i) the relative benefits received by
the Trust and such Indemnified Parties in connection with
the operation of the Trust, (ii) the relative fault of the
Trust and such Indemnified
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Parties, and (iii) any other relevant equitable
considerations. The Trust and the Advisers agree that it
would not be just and equitable if contribution pursuant to
this subparagraph (b) were determined by pro rata allocation
or other method of allocation which does not take account of
the equitable considerations referred to above in this
subparagraph (b). The amount paid or payable as a result of
the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subparagraph (b)
shall be deemed to include any legal or other expense
incurred by the Trust and the Indemnified Parties in
connection with investigating or defending any such loss,
claim, damage, liability or action. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
(c) It is understood, however, that nothing in this paragraph 8
shall protect any Indemnified Party against, or entitle any
Indemnified Party to indemnification against, or
contribution with respect to, any liability to the Trust or
its Unitholders to which such Indemnified Party is subject,
by reason of its willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of
a reckless disregard to its obligations and duties, under
this Agreement or otherwise, to an extent or in a manner
inconsistent with Section 17 of the 1940 Act.
9. Duration and Termination. Insofar as the holders of Units
representing the interests in the Current Portfolio are affected by this
Agreement, it shall continue, unless sooner terminated as provided herein, until
April 30 of the year following the year first above written, and, insofar as the
holders of Units representing the interests in each of the other Portfolios are
affected by this Agreement, it (as supplemented by the terms specified in any
notice and agreement pursuant to paragraph 1(b) hereof) shall continue (assuming
approval by the initial holder(s) of Units of such Portfolio) until April 30 of
the year following the year in which the Portfolio becomes a Portfolio
hereunder, and with respect to each Portfolio thereafter shall continue
automatically for periods of one year so long as each such latter continuance is
approved at least
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annually (a) by the vote of a majority of the Trustees of the Trust who are not
parties to this Agreement or interested persons (as defined by the 0000 Xxx) of
any such party, cast in person at a meeting called for the purpose of voting on
such approval, and (b) by the Trustees of the Trust or by vote of a majority of
the outstanding Units (as defined with respect to voting securities in the 1940
Act) representing the interests in such Portfolio; provided, however, that this
Agreement may be terminated by the Trust as to any Portfolio at any time,
without the payment of any penalty, by vote of a majority of the Trustees of the
Trust or by vote of a majority of the outstanding Units (as so defined)
representing the interests in the Portfolio affected thereby on 60 days' written
notice to the Advisers, or by the Advisers at any time, without the payment of
any penalty, on 60 days' written notice to the Trust. This Agreement shall
automatically and immediately terminate in the event of its assignment (as
defined by the 1940 Act).
10. Name of the Trust. Northern agrees that the name "The Benchmark"
may be used in the name of each Portfolio and that such name, any related logos
and any service marks containing the words "The Benchmark" may be used in
connection with the Portfolio's business only for so long as this Agreement
(including any continuance or amendment hereof) remains in effect and that such
use shall be royalty free. At such time as this Agreement shall no longer be in
effect, each Portfolio shall cease such use. The Trust acknowledges that it has
no rights to the name "The Benchmark," such logos or service marks other than
those granted in this paragraph and that Northern reserves to itself the right
to grant the nonexclusive right to use the name "The Benchmark," such logos or
service marks to any other person, including, but not limited to, another
investment company.
11. Status of Advisers as Independent Contractors. The Advisers shall
for all purposes herein be deemed to be independent contractors and shall,
unless otherwise expressly provided herein or authorized by the Trustees of the
Trust from time to time, have no authority to act for or represent the Trust in
any way or otherwise be deemed agents of the Trust.
12. Amendment of Agreement. This Agreement may be amended by mutual
consent, but the consent of the Trust must be approved (a) by vote of a majority
of those Trustees of the Trust who are not parties to this Agreement or
interested persons (as defined in the 0000 Xxx) of any such party, cast in
person at a meeting called for the purpose of voting on such amendment, and (b)
by vote of a majority of the outstanding Units (as defined with respect to
voting securities by the 1940 Act) representing the interests in each Portfolio
affected by such amendment.
13. Unitholder Liability. This Agreement is executed by or on behalf
of the Trust with respect to each Portfolio and
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the obligations hereunder are not binding upon any of the Trustees, officers or
Unitholders of the Trust individually but are binding only upon the Trust and
its assets and property. All obligations of the Trust under this Agreement shall
apply only on a Portfolio-by-Portfolio basis, and the assets of one Portfolio
shall not be liable for the obligations of another Portfolio.
14. Miscellaneous. The Trust's Declaration of Trust as amended to date
is on file with the Secretary of The Commonwealth of Massachusetts. 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 construed in
accordance with applicable federal law and (except as to paragraph 13 hereof
which shall be construed in accordance with the laws of The Commonwealth of
Massachusetts) the laws of the State of Illinois and shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
(subject to the last sentence of paragraph 9) and, to the extent provided in
paragraph 8 hereof, each Indemnified Party. Anything herein to the contrary
notwithstanding, this Agreement shall not be construed to require, or to impose
any duty upon, any party to do anything in violation of any applicable laws or
regulations. Any provision in this Agreement requiring compliance with any
statute or regulation shall mean such statute or regulation as amended and in
effect from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first above written.
THE BENCHMARK FUNDS
_________________________
Title:
THE NORTHERN TRUST COMPANY
_________________________
Title:
RCB TRUST COMPANY
_________________________
Title:
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