DISTRIBUTION AGREEMENT
BETWEEN
THE BENCHMARK FUNDS
AND
XXXXXXX, XXXXX & CO.
CONTENTS
Paragraph Page
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1. Appointment of Distributor............................................ 2
2. Duties as Distributor................................................. 2
3. Distribution Costs.................................................... 3
4. Duration and Termination.............................................. 3
5. Amendment of Agreement................................................ 4
6. Shareholder Liability................................................. 4
7. Miscellaneous......................................................... 4
DISTRIBUTION AGREEMENT
AGREEMENT made this 31st day of March, 1998, between THE BENCHMARK FUNDS, a
Delaware business trust (the "Trust"), and XXXXXXX, SACHS & CO., a New York
limited partnership (the "Distributor").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as an open-end, management
investment company and is so registered under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares of beneficial interest
("Shares") in separate series with each such series representing the interests
in a separate portfolio of securities and other assets; and
WHEREAS, the Trust presently intends to offer Shares in eighteen
portfolios, the Diversified Assets Portfolio, the Government Portfolio, the Tax-
Exempt Portfolio, the Government Select Portfolio, the Equity Index Portfolio,
the Small Company Index Portfolio, the Diversified Growth Portfolio, the Focused
Growth Portfolio, the U.S. Treasury Index Portfolio, the U.S. Government
Securities Portfolio, the Short-Intermediate Bond Portfolio, the Bond Portfolio,
the Balanced Portfolio, the International Growth Portfolio, the International
Bond Portfolio, the International Equity Index Portfolio, the Intermediate Bond
Portfolio and the Global Asset Portfolio (such Portfolios together with all
other series subsequently established by the Trust and made subject to this
Agreement being herein referred to as the "Portfolios"); and
WHEREAS, the Trust desires to retain the Distributor to act as distributor
to provide for the sale and distribution of Shares of the Portfolios, and the
Distributor is willing to so render such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and other good and valuable consideration, receipt whereof is
hereby acknowledged, the parties hereto agree as follows:
1. Appointment of Distributor. The Trust hereby appoints the
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Distributor as exclusive distributor of the Shares of each of the Portfolios on
the terms and for the periods set forth in this Agreement. The Distributor
hereby accepts such appointment and agrees to render the services and perform
the duties set forth in this paragraph 1 and in paragraph 2 without
compensation.
2. Duties as Distributor. The following provisions shall apply to the
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Distributor's obligations as distributor under this Agreement:
(a) The Trust agrees to sell Shares of each of the Portfolios through
the Distributor, as agent, from time to time during the term of this
Agreement upon the terms and at the current offering price described in the
Prospectus and Statement of Additional Information [as those terms are
defined in the Administration Agreement of even date herewith between the
Trust and the Distributor (the "Administration Agreement")]. Such sales
may, however, be suspended whenever in the judgment of the Trust it is in
its best interests to do so;
(b) The Distributor will hold itself available to receive or will
arrange for the receipt of orders for the purchase of Shares of each
Portfolio and will (and shall have the authority to) receive and accept or
reject or arrange for the receipt and acceptance or rejection of such
orders on behalf of the Trust in accordance with the provisions of the
Prospectus and Statement of Additional Statement.
(c) The Distributor shall not be obligated to sell any certain number
of Shares of any Portfolio;
(d) In performing its duties hereunder, the Distributor shall act in
conformity with the Trust Agreement, By-Laws, Registration Statement,
Prospectus and Statement of Additional Information (as such terms are
defined in the Administration Agreement) and with the instructions and
directions of the Trustees of the Trust, and will use its best efforts to
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comply with and conform to the requirements of the 1940 Act and all other
applicable federal and state laws, regulations and rulings including
without limitation any exemptive order issued by the Securities and
Exchange Commission to which the Trust may be subject;
(e) The Distributor shall be free to render to others services
similar to those rendered to the Trust hereunder so long as the
Distributor's services hereunder are not impaired thereby.
(f) The Distributor agrees to maintain, and preserve for the periods
prescribed by Rule 31a-2 of the Securities and Exchange Commission under
the 1940 Act, such records as are required to be maintained by Rule 31a-
1(d) under the 1940 Act.
3. Distribution Costs. During the term of this Agreement, the Distributor
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will pay the following costs:
(a) Costs of all sales presentations, mailings, advertising and any
other distribution efforts by the Distributor with respect to the Shares of
each of the Portfolios. Such costs shall not be deemed to include the costs
of preparing and setting in type Prospectuses, Statements of Additional
Information, proxy material, reports and notices and the printing and
distributing the same to existing Shareholders and regulatory authorities;
and
(b) Compensation of any personnel of the Distributor for activities
in connection with the distribution or sale of the Shares of each of the
Portfolios.
4. Duration and Termination. This Agreement shall continue, unless
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sooner terminated as provided herein, until April 30, 1999 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 in the 0000 Xxx) of any such
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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 Shares (as defined with respect to voting securities in the 1940
Act) representing the interests in the Portfolios; provided, however, that this
Agreement may be terminated by the Trust as to any or all Portfolios at any
time, without the payment of any penalty, on 60 days' written notice to the
Distributor or by the Distributor 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 in the 1940 Act).
5. 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.
6. Shareholder Liability. This Agreement is executed by or on behalf of
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the Trust with respect to each of the Portfolios and the obligations hereunder
are not binding upon any of the Trustees, officers or Shareholders of the Trust
individually but are binding only upon the Portfolio to which such obligations
pertain and the assets and property of such Portfolio. 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.
7. Miscellaneous. The Trust's Declaration of Trust is on file with the
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Trust. 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,
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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 6 hereof which shall be
construed in accordance with the laws of the State of Delaware) 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 paragraph 4
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
ATTEST: THE BENCHMARK FUNDS
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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ATTEST: XXXXXXX, XXXXX & CO.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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