Exhibit 6
DISTRIBUTION AGREEMENT
Between
THE BENCHMARK FUNDS
and
XXXXXXX, XXXXX & CO.
CONTENTS
Paragraph Page
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1. Appointment of Distributor............................................. 1
2. Duties as Distributor.................................................. 2
3. Distribution Costs..................................................... 3
4. Duration and Termination............................................... 3
5. Amendment of Agreement................................................. 4
6. Unitholder Liability................................................... 4
7. Miscellaneous.......................................................... 4
DISTRIBUTION AGREEMENT
AGREEMENT made this 5th day of October, 1990 between THE BENCHMARK FUNDS, a
Massachusetts 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 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 presently intends to offer Units in four portfolios, the
Diversified Assets Portfolio, the Government Portfolio, the Tax-Exempt
Portfolio, and the Government Select 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 Units 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 Distributor as
exclusive distributor of the Units 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
Distributor's obligations as distributor under this Agreement;
(a) The Trust agrees to sell Units 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 Units 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 Information.
(c) The Distributor shall not be obligated to sell any certain number
of Units 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
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
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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
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 Units 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 Unitholders and regulatory authorities;
and
(b) Compensation of any personnel of the Distributor for activities in
connection with the distribution or sale of the Units of each of the
Portfolios.
4. Duration and Termination. This Agreement shall continue, unless sooner
terminated as provided herein, until April 30, 1992 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 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 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).
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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. Unitholder Liability. This Agreement is executed by or on behalf of
the Trust with respect to each of the 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.
7. Miscellaneous. The Trust's Declaration of Trust 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 6 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
paragraph 4 hereof.
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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
By: /s/ Xxxxx X. Xxxxxx Attest:
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Title: President
XXXXXXX SACHS & CO.
By: /s/ Xxxxx X. Xxxxxx Attest:
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Partner
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