Exhibit No. 5(d)
EXCLUSIVE DEALER AGREEMENT
SHARES OF LIR CASH RESERVES FUND AND LIR LIQUID ASSETS FUND
AGREEMENT made as of February 1, 2000 between Xxxxxxxx Xxxxxxxx Asset
Management Inc. ("Xxxxxxxx Xxxxxxxx"), a Delaware corporation, and PaineWebber
Incorporated ("PaineWebber"), a Delaware corporation.
WHEREAS Xxxxxxxx Xxxxxxxx LIR Money Series ("Trust") is a Delaware
business trust registered under the Investment Company Act of 1940, as amended
("1940 Act"), as an open-end management investment company; and
WHEREAS the Trust has five distinct series of shares of beneficial
interest, each of which corresponds to a distinct portfolio and two of which
have been designated as LIR Cash Reserves Fund and LIR Liquid Assets Fund (each
of LIR Cash Reserves Fund and LIR Liquid Assets Fund is a "Series"); and
WHEREAS the Trust's board of trustees ("Board") has established an
unlimited number of shares of beneficial interest of the above-referenced Series
("Shares"); and
WHEREAS Xxxxxxxx Xxxxxxxx has entered into a Distribution Contract with
the Trust ("Distribution Contract") pursuant to which Xxxxxxxx Xxxxxxxx serves
as principal distributor in connection with the offering and sale of the Shares
of the above-referenced Series; and
WHEREAS Xxxxxxxx Xxxxxxxx desires to retain PaineWebber as its
exclusive agent in connection with the offering and sale of the Shares of each
such Series and to delegate to PaineWebber performance of certain of the
services which Xxxxxxxx Xxxxxxxx provides to the Trust under the Distribution
Contract; and
WHEREAS PaineWebber is willing to act as Xxxxxxxx Xxxxxxxx' exclusive
agent in connection with the offering and sale of such Shares and to perform
such services on the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, Xxxxxxxx Xxxxxxxx and PaineWebber agree as follows:
1. APPOINTMENT. Xxxxxxxx Xxxxxxxx hereby appoints PaineWebber as
its exclusive agent to sell and to arrange for the sale of the Shares on the
terms and for the period set forth in this Contract. Xxxxxxxx Xxxxxxxx also
appoints PaineWebber as its agent for the performance of certain other services
set forth herein which Xxxxxxxx Xxxxxxxx provides to the Trust under the
Distribution Contract. PaineWebber hereby accepts such appointments and agrees
to act
hereunder. It is understood, however, that these appointments do not preclude
sales of Shares directly through the Trust's transfer agent in the manner set
forth in the Registration Statement. As used in this Contract, the term
"Registration Statement" shall mean the currently effective Registration
Statement of the Trust, and any supplements thereto, under the Securities Act of
1933, as amended ("1933 Act"), and the 1940 Act.
2. SERVICES, DUTIES AND REPRESENTATIONS OF PAINEWEBBER.
(a) PaineWebber agrees to sell the Shares on a best
efforts basis from time to time during the term of this Agreement as agent for
Xxxxxxxx Xxxxxxxx and upon the terms described in this Contract and the
Registration Statement.
(b) Upon the later of the date of this Contract or the
initial offering of Shares by a Series, PaineWebber will hold itself available
to receive orders, satisfactory to PaineWebber and Xxxxxxxx Xxxxxxxx, for the
purchase of Shares and will accept such orders on behalf of Xxxxxxxx Xxxxxxxx
and the Trust as of the time of receipt of such orders and will promptly
transmit such orders as are accepted to the Trust's transfer agent. Purchase
orders shall be deemed effective at the time and in the manner set forth in the
Registration Statement.
(c) PaineWebber in its discretion may sell Shares to (i)
its correspondent firms and customers of such firms and (ii) such other
registered and qualified retail dealers as it may select, subject to the
approval of Xxxxxxxx Xxxxxxxx. In making agreements with such dealers,
PaineWebber shall act only as principal and not as agent for Xxxxxxxx Xxxxxxxx
or the Trust.
(d) The offering price of the Shares of each Series shall
be the net asset value per Share as determined in accordance with each Series'
currently effective prospectus. Xxxxxxxx Xxxxxxxx shall promptly furnish or
arrange for the furnishing to PaineWebber of a statement of each computation of
net asset value.
(e) PaineWebber shall not be obligated to sell any
certain number of Shares.
(f) To facilitate redemption of the Shares by shareholders
directly or through dealers, PaineWebber is authorized but not required on
behalf of Xxxxxxxx Xxxxxxxx and the Trust to repurchase Shares presented to it
by shareholders, its correspondent firms and other dealers at the price
determined in accordance with, and in the manner set forth in, the Registration
Statement.
(g) PaineWebber represents and warrants that: (i) it is a
member in good standing of the National Association of Securities Dealers, Inc.
and agrees to abide by the Conduct Rules of such Association; (ii) it is
registered as a broker-dealer with the Securities and Exchange Commission; (iii)
it will maintain any filings and licenses required by federal and state laws to
conduct the business contemplated under this Agreement; and (iv) it will comply
with all federal and state laws and regulations applicable to the offer and sale
of the Shares.
(h) PaineWebber shall not incur any debts or obligations
on behalf of Xxxxxxxx Xxxxxxxx or the Trust. PaineWebber shall bear all costs
that it incurs in selling the Shares and in
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complying with the terms and conditions of this Contract as more specifically
set forth in paragraph 8.
(i) PaineWebber shall not permit any employee or agent to
offer or sell the Shares unless such person is duly licensed under applicable
federal and state laws and regulations.
(j) PaineWebber shall not (i) furnish any information or
make any representations concerning the Shares other than those contained in the
Registration Statement or in sales literature or advertising that has been
prepared or approved by Xxxxxxxx Xxxxxxxx as provided in paragraph 6 or (ii)
offer or sell the Shares in jurisdictions in which they have not been approved
for offer and sale.
3. SERVICES NOT EXCLUSIVE. The services furnished by PaineWebber
hereunder are not to be deemed exclusive and PaineWebber shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby. Nothing in this Contract shall limit or restrict the
right of any director, officer or employee of PaineWebber who may also be a
director, trustee, officer or employee of Xxxxxxxx Xxxxxxxx or the Trust, to
engage in any other business or to devote his or her time and attention in part
to the management or other aspects of any other business, whether of a similar
or a dissimilar nature.
4. COMPENSATION.
Xxxxxxxx Xxxxxxxx shall not be obligated to pay any
compensation to PaineWebber hereunder nor to reimburse any of PaineWebber's
expenses incurred hereunder.
5. DUTIES OF XXXXXXXX XXXXXXXX.
(a) It is understood that the Trust reserves the right at
any time to withdraw all offerings of Shares of any Series by written notice to
Xxxxxxxx Xxxxxxxx.
(b) Xxxxxxxx Xxxxxxxx shall keep PaineWebber fully
informed of the Trust's affairs and shall make available to PaineWebber copies
of all information, financial statements and other papers which PaineWebber may
reasonably request for use in connection with the distribution of the Shares,
including, without limitation, certified copies of any financial statements
prepared for the Trust by its independent public accountant and such reasonable
number of copies of the most current prospectus, statement of additional
information, and annual and interim reports of any Series as PaineWebber may
request, and Xxxxxxxx Xxxxxxxx shall cooperate fully in the efforts of
PaineWebber to sell and arrange for the sale of the Shares and in the
performance of PaineWebber under this Contract.
(c) Xxxxxxxx Xxxxxxxx shall comply with all state and
federal laws and regulations applicable to a distributor of the Shares.
6. ADVERTISING. Xxxxxxxx Xxxxxxxx agrees to make available such
sales and advertising materials relating to the Shares as Xxxxxxxx Xxxxxxxx in
its discretion determines appropriate. PaineWebber agrees to submit all sales
and advertising materials developed by it
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relating to the Shares to Xxxxxxxx Xxxxxxxx for approval. PaineWebber agrees not
to publish or distribute such materials without first receiving such approval in
writing. Xxxxxxxx Xxxxxxxx shall assist PaineWebber in obtaining any regulatory
approvals of such materials that may be required of or desired by PaineWebber.
7. RECORDS. PaineWebber agrees to maintain all records required
by applicable state and federal laws and regulations relating to the offer and
sale of the Shares. Xxxxxxxx Xxxxxxxx and its representatives shall have access
to such records during normal business hours for review or copying.
8. EXPENSES OF PAINEWEBBER. PaineWebber shall bear all costs and
expenses of (i) preparing, printing, and distributing any materials not prepared
by the Trust or Xxxxxxxx Xxxxxxxx and other materials used by PaineWebber in
connection with its offering of the Shares for sale to the public; (ii) any
expenses of advertising incurred by PaineWebber in connection with such
offering; (iii) the expenses of registration or qualification of PaineWebber as
a dealer or broker under federal or state laws and the expenses of continuing
such registration or qualification; and (iv) all compensation paid to
PaineWebber's investment executives or other employees and others for selling
the Shares, and all expenses of PaineWebber, its investment executives and
employees and others who engage in or support the sale of the Shares as may be
incurred in connection with their sales efforts. PaineWebber shall bear such
additional costs and expenses as it and Xxxxxxxx Xxxxxxxx may agree upon, such
agreement to be evidenced in a writing signed by both parties. Xxxxxxxx Xxxxxxxx
shall advise the Board of any such agreement as to additional costs and expenses
borne by PaineWebber at their first regular meeting held after such agreement
but shall not be required to obtain prior approval for such agreements from the
Board.
9. INDEMNIFICATION.
(a) Xxxxxxxx Xxxxxxxx agrees to indemnify, defend, and
hold PaineWebber, its officers and directors, and any person who controls
PaineWebber within the meaning of Section 15 of the 1933 Act, free and harmless
from and against any and all claims, demands, liabilities, and expenses
(including the cost of investigating or defending such claims, demands, or
liabilities and any counsel fees incurred in connection therewith) which
PaineWebber, its officers, directors, or any such controlling person may incur
under the 1933 Act, under common law or otherwise, arising out of or based upon
any alleged untrue statement of a material fact contained in the Registration
Statement; arising out of or based upon any alleged omission to state a material
fact required to be stated in the Registration Statement thereof or necessary to
make the statements in the Registration Statement thereof not misleading; or
arising out of any sales or advertising materials with respect to the Shares
provided by Xxxxxxxx Xxxxxxxx to PaineWebber. However, this indemnity agreement
shall not apply to any claims, demands, liabilities, or expenses that arise out
of or are based upon any such untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
furnished in writing by PaineWebber to Xxxxxxxx Xxxxxxxx or the Trust for use in
the Registration Statement or in any sales or advertising material; and further
provided, that in no event shall anything contained herein be so construed as to
protect PaineWebber against any liability to Xxxxxxxx Xxxxxxxx or the Trust or
to the shareholders of any Series to which
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PaineWebber would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of its duties, or by reason of its
reckless disregard of its obligations under this Contract.
(b) PaineWebber agrees to indemnify, defend, and hold
Xxxxxxxx Xxxxxxxx and its officers and directors, the Trust, its officers and
trustees, and any person who controls Xxxxxxxx Xxxxxxxx or the Trust within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all claims, demands, liabilities and expenses (including the cost of
investigating or defending against such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which Xxxxxxxx Xxxxxxxx or its
officers or directors or the Trust, its officers or trustees, or any such
controlling person may incur under the 1933 Act, under common law or otherwise
arising out of or based upon any alleged untrue statement of a material fact
contained in information furnished in writing by PaineWebber to Xxxxxxxx
Xxxxxxxx or the Trust for use in the Registration Statement; arising out of or
based upon any alleged omission to state a material fact in connection with such
information required to be stated in the Registration Statement or necessary to
make such information not misleading; or arising out of any agreement between
PaineWebber and a correspondent firm or any other retail dealer; or arising out
of any sales or advertising material used by PaineWebber in connection with its
duties under this Contract.
10. DURATION AND TERMINATION.
(a) This Contract shall be approved by vote of a majority
of the Board and by vote of a majority of those trustees of the Trust who are
not interested persons of the Trust and who have no direct or indirect financial
interest in the operation of this Contract or in any agreements related thereto
(all such trustees collectively being referred to herein as the "Independent
Trustees"), cast in person at a meeting called for the purpose of voting on such
action.
(b) Unless sooner terminated as provided herein, this
Contract shall continue in effect for one year from the above written date.
Thereafter, if not terminated, this Contract shall continue automatically for
successive periods of twelve months each, provided that such continuance is
specifically approved at least annually (i) by a vote of a majority of the
Independent Trustees, cast in person at a meeting called for the purpose of
voting on such approval, and (ii) by the Board with respect to any given Series
or by vote of a majority of the outstanding voting securities of the Shares of
such Series.
(c) Notwithstanding the foregoing, with respect to any
Series this Contract may be terminated at any time, without the payment of any
penalty, by either party, upon the giving of 30 days' written notice. Such
notice shall be deemed to have been given on the date it is received in writing
by the other party or any officer thereof. This Contract may also be terminated
at any time, without the payment of any penalty, by vote of the Board, by vote
of a majority of the Independent Trustees or by vote of a majority of the
outstanding voting securities of the Shares of such Series on 30 days' written
notice to Xxxxxxxx Xxxxxxxx and PaineWebber.
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(d) Termination of this Contract with respect to any
given Series shall in no way affect the continued validity of this Contract or
the performance thereunder with respect to any other Series. This Contract will
automatically terminate in the event of its assignment or in the event that the
Distribution contract is terminated.
11. AMENDMENT OF THIS AGREEMENT. No provision of this Contract may
be amended, changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
12. USE OF PAINEWEBBER NAME. PaineWebber hereby authorizes
Xxxxxxxx Xxxxxxxx to use the name "PaineWebber Incorporated" or any name derived
therefrom in any sales or advertising materials prepared and/or used by Xxxxxxxx
Xxxxxxxx in connection with its duties as distributor of the Shares, but only
for so long as this Contract or any extension, renewal or amendment hereof
remains in effect, including any similar agreement with any organization which
shall have succeeded to the business of PaineWebber.
13. GOVERNING LAW. This Contract shall be construed in accordance
with the laws of the State of Delaware and the 1940 Act. To the extent that the
applicable laws of the State of Delaware conflict with the applicable provisions
of the 1940 Act, the latter shall control.
14. MISCELLANEOUS. The captions in this Contract 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 Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms "majority of the outstanding voting securities," "interested person"
and "assignment" shall have the same meaning as such terms have in the 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated as of the day and year first written
above.
XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. X'Xxxxxxx
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Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. X'Xxxxxxx
Title: First Vice President Title: Senior Vice President
PAINEWEBBER INCORPORATED
Attest: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------- ------------------------------
Name: Xxxx Xxxxxxxxx Name: Xxxxxxxx Xxxxxxxxx
Title: Corporate Vice President Title: Senior Vice President
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