EXHIBIT 9(m)
THE BENCHMARK FUNDS
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
AGREEMENT made this 8th day of June, 1992, as amended and restated on
May 1, 1997 between THE BENCHMARK FUNDS, a Massachusetts business trust (the
"Trust"), and XXXXXXX, XXXXX & CO., a New York limited partnership (the
"Administrator").
WITNESSETH:
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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 the interests in
a separate portfolio of securities and other assets; and
WHEREAS, the Trust currently intends to offer units of beneficial
interest in eighteen portfolios, known as the Diversified Assets Portfolio,
Government Portfolio, Government Select Portfolio, Tax-Exempt Portfolio, U.S.
Treasury Index Portfolio, Short-Intermediate Bond Portfolio, Bond Portfolio,
Intermediate Bond Portfolio, Equity Index Portfolio, Small Company Index
Portfolio, Diversified Growth Portfolio, U.S. Government Securities Portfolio,
Short Duration Portfolio, Focused Growth Portfolio, Balanced Portfolio,
International Growth Portfolio, International Bond Portfolio and International
Equity Index Portfolio; such Portfolios (the "Current Portfolios) together
with all other portfolios subsequently established by the Trust and made subject
to this Agreement being herein collectively referred to as the "Portfolios"; and
WHEREAS, the Trust desires to retain the Administrator to act as
administrator of the Trust and the Administrator is willing to so act;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment of Administrator. The Trust hereby appoints the
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Administrator to act as administrator of the Trust for the periods and on the
terms herein set forth. The Administrator accepts such appointment and agrees
to render the services herein set forth, for the compensation herein provided.
2. Delivery of Documents. The Trust has delivered (or will
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deliver as soon as is possible) to the Administrator copies of each of the
following documents:
(a) Agreement and Declaration of Trust of the Trust dated as of July
15, 1982, together with all Amendments thereto (such Agreement
and Declaration of Trust, as currently 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 currently in effect and as
amended from time to time, are herein called the "By-Laws");
(c) Advisory Agreement between the Trust and The Northern Trust
Company ("North ern") (such Agreement, as currently in effect and
as amended and/or superseded from time to time, is herein called
the "Advisory Agreement");
(d) Custodian Agreement between the Trust and Northern;
(e) Transfer Agency Agreement between the Trust and Northern;
(f) Prospectus and Statement of Additional Information of the
Trust (such Prospectus and Statement of Additional
Information, as presently in effect and as amended,
supplemented and/or superseded from time to time, is herein
called the "Prospectus" and "Statement of Additional
Information", respectively);
(g) 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 "Commission") (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 Administrator 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 Administrator.
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(a) Subject to the general supervision of the Trustees
of the Trust, the Administrator:
(i) shall provide supervision of all aspects of the Trust's
operations (other than those referred to in paragraph
3(a) of the Advisory Agreement) (the parties giving due
recognition to the fact that certain of such operations
to be supervised are performed by Northern pursuant to
the Trust's agreements with Northern referred to in
paragraph 2 hereof);
(ii) shall, to the extent not provided pursuant to the
Trust's agreements with Northern referred to in
paragraph 2 hereof, provide the Trust with such
personnel as are reasonably necessary for the conduct of
the Trust's affairs;
(iii) shall, to the extent not provided pursuant to the
Trust's agreements with Northern referred to in
paragraph 2 hereof, arrange for (A) the preparation for
the Trust of all required tax returns, (B) the prepara
tion and submission of reports to existing Unitholders,
and (C) the periodic updating of the Prospectus and the
preparation of reports filed with the Commission and
other regulatory authorities (including qualification
under state securities or Blue Sky laws of the Trust's
Units);
(iv) shall, to the extent not provided pursuant to the
Trust's agreements with Northern referred to in
paragraph 2 hereof, provide the Trust with adequate
office space and all necessary office equipment and
services, including telephone service, heat, utilities,
stationery supplies and similar items, in Chicago,
Illinois;
(v) shall prepare and implement the Trust's expense budgets,
accruals and amortizations.
(b) The Administrator, in the performance of its duties
hereunder, shall act in conformity with the Trust Agreement,
By-Laws, Registration Statement and Prospectus and Statement
of Additional Information and with the instructions and
directions of the Trustees of the Trust, and will use its
best efforts to conform to the requirements of the 1940 Act
and all other applicable federal and state laws, regulations
and rulings.
(c) The Administrator shall render to the Trustees of the Trust
such periodic and special reports as the Trustees may
reasonably request .
(d) The services of the Administrator hereunder are not deemed
exclusive and the Ad ministrator shall be free to render
similar services to others so long as its services under this
Agreement are not impaired thereby.
4. Expenses.
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(a) During the term of this Agreement, the Administrator will pay
all expenses incurred by it in connection with the
performance of its duties under paragraph 3 hereof, other
than the out-of-pocket cost of the preparations, submissions,
updatings and filings referred to in paragraph 3(a)(iii).
(b) If, in any fiscal year, the sum of a Portfolio's expenses
(including the fee payable pursuant to paragraph 5 hereof,
but excluding the investment advisory fee and transfer agency
fee payable to Northern pursuant to its agreements with the
Trust referred to in paragraph 2 hereof and servicing fees,
and extraordinary expenses such as taxes, interest, and
indemnification expenses) exceeds on an annualized basis .10%
of a Portfolio's average net assets (0.25% for each
International Portfolio, including the International Growth
Portfolio, International Bond Portfolio and International
Equity Index Portfolio) for such fiscal year, the
Administrator will reimburse each Portfolio for the amount of
such excess in accordance with the following timetable.
Expense reimbursements, if any, will be calculated and paid
monthly. The amount of the reimbursement paid by the
Administrator to each Portfolio will be computed as of the
end of each month by (1) determining the difference between
the Portfolio's estimated annualized expense ratio and the
above percentage limitation; (2) multiplying this percentage
by the Portfolio's average net asset value for such month to
obtain the cumulative dollar amount of such excess; [and (3)
subtracting from the cumulative dollar amount of such excess
the cumulative amount of reimbursements made to such
Portfolio by the Administrator since the beginning of the
fiscal year.] [A positive remainder represents the amount to
be paid by the Administrator to the Portfolio; a negative
remainder represents the amount to be paid by the Portfolio
to the Administrator.]
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(c) In the event that the reimbursements described in paragraph
(b) to the New Portfolios cause the aggregate net
administration fees actually earned by Xxxxxxx Sachs on
behalf of all the Fund's Portfolios during any fiscal year
pursuant to the Administration Agreement to be less than the
sum of (a) $1 million for the first 12 Portfolios that were
actively engaged in operations during any part of such fiscal
year plus (b) $50,000 for each additional Portfolio that was
actively engaged in operations during any part of such fiscal
year (the "Minimum Fee"), Northern agrees to pay to Xxxxxxx
Sachs, promptly following the close of each fiscal year of
the Fund, an amount equal to the difference between such
earned net administration fees and the Minimum Fee.
5. Compensation.
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(a) For the services provided and the expenses assumed by the
Administrator for each non-international Portfolio (which
include supervision with respect to the Trust's non-
investment advisory operations) pursuant to the Agreement,
the Trust will pay to the Administrator for as full
compensation therfor a fee at an annual rate of .10% of each
Portfolio's average daily net assets.
For the services provided and the expenses assumed by the
Administrator for an International Portfolio, including
International Growth Portfolio, International Bond Portfolio
and International Equity Index Portfolio (which include
supervision with respect to the Trust's non-investment
advisory operations) pursuant to the Agreement, the Trust
will pay to the Administra tor for as full compensation
therfor a fee at an annual rate of .25% of each Portfolio's
average daily net assets.
(b) The fee will be computed based on net assets on each day and
will be paid to the Administrator monthly.
6. Books and Records. The Administrator agrees to maintain such
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records with respect to its activities hereunder as may be required or as are
appropriate. The Administrator further 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 of such records upon the Trust's request.
7. Indemnification.
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(a) The Trust hereby agrees to indemnify and hold harmless the
Administrator, its officers, partners and employees and each
person, if any, who controls the Adm inistrator (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, the 1940 Act or
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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 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 or the
Statement of Additional Information, or any application or other
document filed in connection with the qualification of the Trust
or Units of any Portfolio under the Blue Sky or securities laws of
any jurisdiction ("Application"), excepy insofar as such losses,
claims, damages or liabilities (or actions in respect there of)
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 Administrator's duties in connection with this
Agreement or the Distribution Agreement of even date herewith
between the Adminis trator and the Trust, made in reliance upon
and in conformity with information furnished by or on behalf of
the Administrator for use in connection with the Registration
Statement, the Prospectus and Statement of Additional Information
or any Application, or
(ii) subject to clause (i) above, the Administrator acting hereunder or
under the Distribution Agreement of even date herewith between the
Administrator and the Trust;
and the Trust will reimburse each Indemnified Party for any legal or other
expenses incurred by such Indemnified Party in connection with
investigating or defending any such loss, claim, damage, liability or
action.
(b) If the indemnification provided for in paragraph 7(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 is
appropriate to reflect (i) the relative benefits received by the Trust
and such Indemnified Parties in connection with the operations of the
Trust, (ii) the relative fault of the Trust and such Indemnified
Parties, and (iii) any other relevant equitable considerations. The
Trust and the Administrator agree that it would not be just and
equitable if contribution pursuant to this subparagraph (b) were
determined by pro rata allocation or any 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 7 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 Unit-holders to which
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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 any reckless disregard of its obligations and
duties, under this Agreement or the Distribution Agreement, or
otherwise to an extent or in a manner inconsistent with Section 17 of
the 1940 Act.
8. Duration and Termination. Insofar as the holders of Units
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representing the interests in the Current Portfolios are affected by this
Agreement, it shall continue, unless sooner terminated as provided herein, until
April 30, 1998, and, insofar as the holders of Units representing the interests
in each of the other Portfolios are affected by this Agreement, it shall
continue until April 30 of the year following the year in which the Portfolio
becomes a Portfolio hereunder, and thereafter shall continue automatically for
periods of one year so long as each such latter continuance is approved at least
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. 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 Administrator,
or by the Administrator at any time, without the payment of any penalty, on 60
days' written notice to the Trust. This Agreement will automatically and
immediately terminate in the event of its assignment (as defined by the 1940
Act).
9. Status of Administrator as Independent Contractor. The
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Administrator shall for all purposes herein be deemed to be an independent
contractor 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 an agent of the Trust.
The Administrator represents and warrants to the Trust that it is duly organized
as a New York limited partnership and is and at all times will remain duly
authorized and licensed to carry out its services as contemplated herein and in
its Distribution Agreement with the Trust.
10. Amendment of Agreement. This Agreement may be amended by mutual
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consent provided that such amendment is approved 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.
11. Unitholder Liability. This Agreement is executed by or on behalf
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of the Trust with respect to each of its Portfolios and the obligations
hereunder are not binding upon any of the Trustees, officers or Unitholders of
the Trust individually but are binding only upon the Portfolio to which such
obligations pertain and the assets and property of such Portfolio.
12. Miscellaneous. The Trust's Declaration of Trust as amended to
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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 11 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 8) and, to the extent provided in
paragraph 7 hereof, each Indemnified Party. Anything herein to the contrary
notwithstanding, this Agreement shall not be construed to require, or to impose
any duty upon, either of the parties to do anything in violation of any
applicable laws or regulations.
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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
Attest: By:
As its:____________________________
Attest: XXXXXXX, XXXXX & CO.
___________________________________
As Its:
THE NORTHERN TRUST
For purposes of paragraph 4(c) only
___________________________________
As Its:
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