EXHIBIT 99.9(d)
THE BENCHMARK FUNDS
ADMINISTRATION AGREEMENT
AGREEMENT made this 8th day of June, 1992, between THE BENCHMARK FUNDS, a
Massachusetts business trust (the "Trust"), and XXXXXXX, XXXXX & CO., a New York
limited partnership (the "Administrator").
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 the interests in
a separate portfolio of securities and other assets; and
WHEREAS, the Trust currently intends to offer units of beneficial interest
in six portfolios, known as the Diversified Assets Portfolio, Government
Portfolio, Government Select Portfolio, Tax-Exempt Portfolio, California
Municipal Portfolio and Short Duration 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
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 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
("Northern") (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and/or superseded from time to time, is herein called the "Advisory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. 13 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. 14 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.
(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;
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(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 Administrator shall be free to render similar
services to others so long as its services under this Agreement
are not impaired thereby.
4. Expenses.
(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 and the
fees payable to Northern pursuant to its agreements with the
Trust referred to in paragraph 2 hereof, but excluding taxes,
interest, brokerage commissions relating to the purchase or sale
of Portfolio securities, and extraordinary expenses such as for
litigation) exceeds the expense limitations applicable to such
Portfolio imposed by state securities administrators, as such
limitations may be lowered or raised from time to time, the
Administrator shall reimburse such Portfolio in the amount of
such excess to the extent required by such expense limitations.
(c) If, in any fiscal year, the average net assets of the Diversified
Assets Portfolio exceed $450 million and the Specified Expenses
(as hereinafter defined) of such Portfolio exceed .05 of 1% of
such Portfolio's average net assets for such fiscal year, the
Administrator will reimburse such Portfolio for the amount of
such excess as promptly as possible after the end of the fiscal
year. If, in any fiscal year, the average net assets of either
the Government Portfolio or the Tax-Exempt Portfolio exceeds $75
million and the Specified Expenses of such Portfolio exceed .05
of 1% of such Portfolio's average net assets for such fiscal
year, the Administrator will reimburse such Portfolio for the
amount of such excess. "Specified Expenses" are defined as the
following expenses of a Portfolio: custodial fees (except to the
extent that they exceed the fees specified in the custodial fee
schedule in effect on the date hereof or are due to any upward
adjustment in such fees after the date hereof), fees payable to
the Commission and state securities administrators (except to the
extent the fees payable to the Commission or any such
administrator represent an increase in the schedule of such fees
from the schedule in effect on the date hereof), amortized
expenses of the organization of the Trust, premiums
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expensed by the Trust for fidelity bonds, legal fees and
expenses, expenses of preparing and setting in type Prospectuses,
Statements of Additional Information, proxy material, reports and
notices and the printing and distributing of the same to the
Unitholders and regulatory authorities, and compensation and
expenses of the Trustees of the Trust; provided, however, that
auditing fees and expenses are not regarded as "Specified
Expenses."
5. Compensation.
(a) For the services provided and the expenses assumed by the
Administrator pursuant to this Agreement, the Trust will pay to
the Administrator as full compensation therefor a fee at an
annual rate of .25 of 1% of the first $100 million, .15 of 1% of
the next $200 million, .075 of 1% of the next $450 million, and
.05 of 1% of any excess over a total of $750 million of each
Portfolio's average 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 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.
(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 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
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(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 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 representing
the interests in the Current Portfolios are affected by this Agreement, it shall
continue, unless sooner terminated as provided herein, until April 30, 1993,
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).
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9. Status of Administrator as Independent Contractor. The 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 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 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 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.
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:/s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx
---------------------------------
As its: Vice President
Attest:/s/ Xxxxx Xxxxx XXXXXXX, XXXXX & CO.
/s/ Xxxxx X. Xxxxxx
---------------------------------
As Its: Vice President
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