Exhibit No. 5(c)
DEALER AGREEMENT
LIQUID INSTITUTIONAL RESERVES
AGREEMENT made as of June 14, 2001 between Xxxxxxx Advisors, Inc.
("Xxxxxxx Advisors"), a Delaware corporation, and UBS Warburg LLC ("UBS
Warburg"), a Delaware limited liability company.
WHEREAS Liquid Institutional Reserves ("Fund") is a Massachusetts business
trust registered under the Investment Company Act of 1940, as amended ("1940
Act"), as an open-end management investment company; and
WHEREAS the Fund currently offers three distinct series of shares of
beneficial interest ("Series"), each of which corresponds to a distinct
portfolio, which have been designated as Xxxxxxx LIR Money Market Fund, Xxxxxxx
LIR Government Securities Fund and Xxxxxxx LIR Treasury Securities Fund for
which the Fund's board of trustees ("Board") has established an unlimited number
of shares of beneficial interest ("Shares"); and
WHEREAS Xxxxxxx Advisors has entered into a Principal Underwriting
Contract with the Fund ("Underwriting Contract") pursuant to which Xxxxxxx
Advisors serves as principal underwriter in connection with the offering and
sale of the Shares of the above-referenced Series and of such other Series as
may hereafter be designated by the Board and have one or more classes of Shares
established; and
WHEREAS Xxxxxxx Advisors desires to retain UBS Warburg as its agent in
connection with the offering and sale of the Shares of each Series and to
delegate to UBS Warburg performance of certain of the services which Xxxxxxx
Advisors provides to the Fund under the Underwriting Contract; and
WHEREAS UBS Warburg is willing to act as Xxxxxxx Advisors' 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, Xxxxxxx Advisors and UBS Warburg agree as follows:
1. Appointment. Xxxxxxx Advisors hereby appoints UBS Warburg as its agent
to sell and to arrange for the sale of the Shares on the terms and for the
period set forth in this Agreement. Xxxxxxx Advisors also appoints UBS Warburg
as its agent for the performance of certain other services set forth herein,
which Xxxxxxx Advisors provides to the Fund under the Underwriting Contract. UBS
Warburg hereby accepts such appointments and agrees to act hereunder. It is
understood, however, that these appointments do not preclude Xxxxxxx Advisors
from entering into agreements with other registered and qualified retail dealers
for the sale of Shares or preclude sales of the Shares directly through the
Fund's transfer agent in the manner set forth in the Registration Statement. As
used in this Agreement, the term "Registration Statement" shall mean the
currently effective Registration Statement of the Fund, and any supplements
thereto, under the Securities Act of 1933, as amended ("1933 Act"), and the 0000
Xxx.
2. Services, Duties and Representations of UBS Warburg.
(a) UBS Warburg agrees to sell the Shares on a best efforts basis from
time to time during the term of this Agreement as agent for Xxxxxxx Advisors and
upon the terms described in this Agreement and the Registration Statement.
(b) Upon the later of the date of this Agreement or the initial offering
of Shares by a Series to the public, UBS Warburg will hold itself available to
receive orders, satisfactory to UBS Warburg and Xxxxxxx Advisors, for the
purchase of Shares and will accept such orders on behalf of Xxxxxxx Advisors and
the Fund as of the time of receipt of such orders and will promptly transmit
such orders as are accepted to the Fund's transfer agent. Purchase orders shall
be deemed effective at the time and in the manner set forth in the Registration
Statement.
(c) The offering price of the Shares shall be the net asset value per
share as next determined by the Fund following receipt of an order at UBS
Warburg's principal office as set forth in the Registration Statement. Xxxxxxx
Advisors shall promptly furnish or arrange for the furnishing to UBS Warburg
from the Fund of a statement of each computation of net asset value.
(d) UBS Warburg shall not be obligated to sell any certain number of
Shares.
(e) UBS Warburg represents and warrants that: (i) it is a member in good
standing of the NASD and agrees to abide by the Conduct Rules of the NASD; (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.
(f) UBS Warburg shall not incur any debts or obligations on behalf of
Xxxxxxx Advisors or the Fund. UBS Warburg shall bear all costs that it incurs in
selling the Shares and in complying with the terms and conditions of this
Agreement as more specifically set forth in paragraph 8.
(g) UBS Warburg shall not permit any employee or agent to offer or sell
Shares to the public unless such person is duly licensed under applicable
federal and state laws and regulations.
(h) UBS Warburg 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 Xxxxxxx Advisors 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 UBS Warburg hereunder
are not to be deemed exclusive and UBS Warburg shall be free to furnish similar
services to others so long as its services under this Agreement are not impaired
thereby.
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4. Compensation.
UBS Warburg shall be compensated by Xxxxxxx Advisors in the amount set
forth on Schedule A hereto. Such amount may be changed from time to time with
the express written consent of the parties to this Agreement.
5. Duties of Xxxxxxx Advisors.
(a) It is understood that the Fund reserves the right at any time to
withdraw all offerings of any class or classes of Shares of any or all Series by
written notice to Xxxxxxx Advisors.
(b) Xxxxxxx Advisors shall keep UBS Warburg fully informed of the Fund's
affairs and shall make available to UBS Warburg copies of all information,
financial statements and other papers that UBS Warburg may reasonably request
for use in connection with the distribution of Shares, including, without
limitation, certified copies of any financial statements prepared for the Fund
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 UBS Warburg may request, and Xxxxxxx Advisors
shall cooperate fully in the efforts of UBS Warburg to sell and arrange for the
sale of Shares and in the performance of UBS Warburg under this Agreement.
(c) Xxxxxxx Advisors shall comply with all state and federal laws and
regulations applicable to a distributor of the Shares.
6. Advertising. Xxxxxxx Advisors agrees to make available such sales and
advertising materials relating to the Shares as Xxxxxxx Advisors in its
discretion determines appropriate. UBS Warburg agrees to submit all sales and
advertising materials developed by it relating to the Shares to Xxxxxxx Advisors
for approval. UBS Warburg agrees not to publish or distribute such materials to
the public without first receiving such approval in writing. Xxxxxxx Advisors
shall assist UBS Warburg in obtaining any regulatory approvals of such materials
that may be required of or desired by UBS Warburg.
7. Records. UBS Warburg agrees to maintain all records required by
applicable state and federal laws and regulations relating to the offer and sale
of the Shares. Xxxxxxx Advisors and its representatives shall have access to
such records during normal business hours for review or copying.
8. Expenses of UBS Warburg. UBS Warburg shall bear all costs and expenses
of (i) preparing, printing, and distributing any materials not prepared by the
Fund or Xxxxxxx Advisors and other materials used by UBS Warburg in connection
with its offering of the Shares for sale to the public; (ii) any expenses of
advertising incurred by UBS Warburg in connection with such offering; (iii) the
expenses of registration or qualification of UBS Warburg 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 UBS Warburg's Financial
Advisors or other employees and others for selling Shares, and all expenses of
UBS Warburg, its Financial Advisors and employees and others who engage in or
support the sale of Shares as may be incurred in connection with their sales
efforts. UBS Warburg shall bear such additional costs
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and expenses as it and Xxxxxxx Advisors may agree upon. Xxxxxxx Advisors shall
advise the Board of any such agreement as to additional costs and expenses borne
by but shall not be required to obtain prior approval for such agreements from
the Board.
9. Indemnification.
(a) Xxxxxxx Advisors agrees to indemnify, defend, and hold UBS Warburg,
its officers and directors, and any person who controls UBS Warburg 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 UBS Warburg, 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
Xxxxxxx Advisors to UBS Warburg. 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 UBS Warburg to Xxxxxxx Advisors or the Fund 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 UBS Warburg against any liability to Xxxxxxx Advisors or the Fund or to
the shareholders of any Series to which UBS Warburg 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 Agreement.
(b) UBS Warburg agrees to indemnify, defend, and hold Xxxxxxx
Advisors and its officers and directors, the Fund, its officers and Board
members, and any person who controls Xxxxxxx Advisors or the Fund 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 Xxxxxxx Advisors or its
officers or directors or the Fund, its officers or Board members, or any such
controlling person may incur under the 1933 Act, under common law or otherwise
arising out of or based upon any breach by UBS Warburg of its duties or
obligations under this Agreement.
10. Duration and Termination.
(a) Notwithstanding the foregoing, with respect to a class of Shares
of any Series this Agreement 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.
(b) Termination of this Agreement with respect to a class of Shares
of any given Series shall in no way affect the continued validity of this
Agreement or the performance
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thereunder with respect to any other classes of Shares of that Series or any
classes of Shares of any other Series. This Agreement will automatically
terminate in the event of its assignment or in the event that the Underwriting
Contract is terminated.
11. Amendment of this Agreement. No provision of this Agreement 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 UBS Warburg Name. UBS Warburg hereby authorizes Xxxxxxx
Advisors to use the name "UBS Warburg LLC" or any name derived therefrom in any
sales or advertising materials prepared and/or used by Xxxxxxx Advisors in
connection with its duties as distributor of the Shares, but only for so long as
this Agreement 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 UBS Warburg.
13. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New York and the 1940 Act. To the extent that the
applicable laws of the State of New York conflict with the applicable provisions
of the 1940 Act, the latter shall control.
14. Miscellaneous. 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 binding upon and shall inure to the
benefit of the parties hereto and their respective successors. As used in this
Agreement, the term "assignment" shall have the same meaning as such term has in
the 1940 Act. Where the effect of a requirement of the 1940 Act reflected in any
provision of this Contract is relaxed by a rule, regulation or order of the
Securities and Exchange Commission, whether of special or general application,
such provision shall be deemed to incorporate the effect of such rule,
regulation or order.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers designated as of the day and year first written above.
XXXXXXX ADVISORS, INC. XXXXXXX ADVISORS, INC.
By: ____________________________ By: __________________________________
Name: Name:
Title: Title:
UBS WARBURG LLC UBS WARBURG LLC
By: ____________________________ By: __________________________________
Name: Name:
Title: Title:
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SCHEDULE A
Xxxxxxx LIR Money Market Fund 0.03%
Xxxxxxx LIR Government Securities Fund 0.03%
Xxxxxxx LIR Treasury Securities Fund 0.03%
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