Exhibit (h)(35)
TRADING AND NSCC FUND/SERV NETWORKING AGREEMENT
THIS AGREEMENT is made and entered into this 20th day of September 2001 by
and between BenefitsCorp Equities, Inc. ("BCE"), a Delaware corporation having
its principal office and place of business at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxx, 00000, and Westcore Trust (the "Fund"), a Massachusetts Business Trust
having its principal office and place of business at 000 00xx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000.
WHEREAS, the Fund, is a registered investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act") (collectively the
"Fund"), having separate series (the "Portfolios"); and
WHEREAS, it is contemplated that qualified employee benefit or retirement
plans, nonqualified employee benefit plans and other account holders ("Account
Holders") will invest their assets in the Portfolios; and
WHEREAS, BCE, a registered broker/dealer and member of the National
Association of Securities Dealers, ("NASD"), transmits trades to mutual fund
companies on behalf of Account Holders; and
WHEREAS, it is understood that when both BCE and a Fund agent, are members
of the National Securities Clearing Corporation ("NSCC") the terms and
conditions of NSCC membership shall be incorporated herein and the parties
hereto shall act according to their duties as NSCC members including but not
limited to the duties, procedures and obligations of Matrix Level III Networking
as defined by NSCC on June 1, 1998 (Fund/SERV).
NOW THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties agree as follows:
1. NON-NSCC TRADES.
BCE and the Fund have entered into the Networking and Trading Agreement in
order to facilitate the transmission of information regarding Accounts through
Fund/SERV. Until both parties are actively trading via Fund/SERV, procedures for
purchase, redemption and exchange orders for shares from Account Holders shall
be as set forth in this Section 1.
(a) BCE shall maintain one or more omnibus accounts (the "Accounts") with
each Portfolio or its designated transfer agent (the "Transfer
Agent"). The Accounts shall be held in the name of BCE or a nominee.
BCE shall act as limited agent for the Fund for the sole purposes of
Rule 22c-1 under the 1940 Act, and shall receive from the Account
Holders for acceptance as of the close of trading on the New York
Stock Exchange (normally 4:00 p.m. ET) ("Close of Trading") on each
Business Day (based upon the Account Holders' receipt of instructions
from Participants prior to the Close of Trading on each such Business
Day): (i) orders for the purchase of shares of the Funds; (ii)
redemption requests and redemption directions with respect to shares
of the Funds held by the Plans; and (iii) orders for the exchange of
shares from one Portfolio to another Portfolio (such purchase orders,
redemption requests and exchange orders are collectively referred to
in this Agreement as "Instructions").
(b) The Fund, or its agent, shall furnish BCE, for each Fund and Portfolio
listed on Schedule A, by 7:00 PM Eastern Time (ET) the following: (1)
the final net asset value information on each business day the New
York Stock Exchange is open for business (each a "Business Day"); and
(2) in the case of fixed income or money market funds, the daily
accrual or the interest rate factor. All such communications shall be
made via facsimile or an electronic medium acceptable to both parties.
(c) Instructions will be deemed received by the Fund if received by BCE
prior to the Close of Trading on the Business Day of the original
communication from the Plan to BCE ("First Business Day"). BCE shall
cooperate to enable the Fund and its Transfer Agent and principal
underwriter (by facsimile or such other means upon which the parties
may mutually agree) to receive Instructions and deliver confirmations
on the Business Day following the First Business Day ("Second Business
Day"). BCE shall communicate confirmation of the transactions
effectuated as a result of the receipt of Instructions to the
applicable Plan representative. BCE shall communicate (by facsimile or
such other means upon which the parties may mutually agree)
Instructions based on orders received by BCE from Account Holders or
Participants by the Close of Trading on the First Business Day to the
Transfer Agent no later than 9:00 a.m. ET on the Second Business Day;
the Fund shall provide access to account information electronically by
the Close of Trading on the Second Business Day. BCE shall, as agent
for the Fund, process all oral or written instructions from Plan
Representatives or Participants to purchase, redeem shares or exchange
of the Funds in accordance with the purchase, exchange or repurchase
procedures set forth in each Fund's then current Prospectus and
Statement of Additional Information (the "SAI"). BCE shall maintain
internal safekeeping procedures to safeguard and protect the
confidentiality of the data so transmitted. In no event shall BCE
accept Instructions on any Business Day with respect to requests by
Participants that have not been received by BCE prior to the Close of
Trading on the Business Day on which such Instructions are to be
prepared. Instructions received in proper form by BCE after the Close
of Trading on any Business Day shall be treated as if received on the
next following Business Day.
(d) Upon receipt of the monies paid to BCE by the Transfer Agent for the
redemption of shares of the Fund, BCE shall pay, or shall direct the
Plan Representative to pay, such monies. BCE shall not process or
effect any redemption with respect to shares of a Fund after receipt
by BCE of notification of the suspension of the determination of the
net asset value of such Fund.
(e) BCE represents that all orders transmitted to the Fund shall be based
on Instructions communicated in proper form by the Plan
representative, Participants and/or authorized committee. In no event
shall Instructions for processing on the First Business Day be
accepted by BCE later than the Close of Trading on such First Business
Day.
(e) The settlement date for all trades is the Business Day following the
trade date (settlement date = trade date + 1). BCE will send to
Transfer Agent all wires for net purchases by the close of the Federal
Reserve Wire Transfer System (normally 5:30 p.m. ET) on settlement
date.
(f) Fund shall settle net redemption transactions not later than the close
of the Federal Reserve Wire Transfer System on the Business Day
immediately following the date a redemption order has been
communicated to the Fund except as provided in the Fund's current
prospectus or statement of additional information.
(g) Adviser or its agent shall send (via mail, facsimile, or an electronic
medium acceptable to the parties) daily confirmations of all trades to
BCE no later than the day following the communication of the purchase
or redemption order
On any Business Day when the Federal Reserve Wire Transfer System is
closed, all communication and processing rules will be suspended for the
settlement of trades. Trades will be settled on the next Business Day that the
Federal Reserve Wire Transfer System is open. The original trade date will
apply.
2. PROCEDURES FOR ORDER AND SETTLEMENT VIA FUND/SERV.
BCE and the Fund have entered into the Networking and Trading Agreement to
facilitate the transmission of information regarding Accounts through Fund/SERV.
When both parties are actively trading via Fund/SERV, procedures for purchase
and redemption orders for shares from Account Holders shall be as set forth in
this Section 2.
(a) BCE shall maintain one or more omnibus accounts (the "Accounts") with
each Portfolio or its designated transfer agent (the "Transfer
Agent"). The Accounts shall be held in the name of BCE or a nominee.
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Fund, or its agent, shall furnish BCE, for each Portfolio, by 7:00
p.m. ET the following: (1) the final net asset value information as
calculated at the close of trading on the New York Stock Exchange
(normally 4:00 p.m. ET) on each business day that the New York Stock
Exchange is open for business (each a "Business Day"); (2) dividend
and capital gains information as it arises, but in any event, on or
prior to the record date of the Portfolio; and (3) in the case of
fixed income or money market funds, the daily accrual or the interest
rate factor. All such notifications will be communicated via
Fund/SERV. Should such services be unavailable for any reason the
communication will be made via facsimile or an electronic medium
acceptable to the parties.
(b) The Fund, or its agent, shall furnish BCE, for each Portfolio listed
on Schedule A, by 7:00 PM Eastern Time (ET) the following: (1) the
final net asset value information on each business day the New York
Stock Exchange is open for business (each a "Business Day"); and (2)
in the case of fixed income or money market funds, the daily accrual
or the interest rate factor. All such communications shall be made via
Fund/SERV. Should Fund/SERV be unavailable for any reason, the
communication shall be made via facsimile or an electronic medium
acceptable to both parties.
(c) As agent for the Fund, BCE shall: (a) receive from the Plans for
acceptances as of the Close of Trading on each Business Day (based
upon the Plans' receipt of instructions from Account Holders prior to
the Close of Trading on each such Business Day): (i) orders for the
purchase of shares of the Fund; (ii) redemption requests and
redemption directions with respect to shares of the Fund held by the
Plans; and (iii) orders for the exchange of shares from one Fund to
another Fund (such purchase orders, redemption requests and exchange
orders are collectively referred to in this Agreement as
"Instructions"). Upon receipt of purchase and redemption Instructions
from the Account Holders for acceptance as of the Close of Trading,
BCE shall calculate the net purchase and/or redemption order for each
Fund for each omnibus account it maintains (collectively "Account").
Orders for net purchases and/or net redemptions received by BCE, or
its agent, prior to the Close of Trading on any given Business Day
shall be transmitted to the NSCC by 9:00 x.x.XX on the next Business
Day. Subject to BCE's compliance with the foregoing, the Business Day
on which instructions are received by BCE, or its agent, in proper
form prior to the Close of Trading shall be the date as of which
shares of the Funds are deemed purchased or redeemed pursuant to such
Instructions. Instructions received in proper form by BCE after the
Close of Trading on any given Business Day will be treated as if
received on the next following Business Day. Dividends and capital
gains distributions shall be automatically reinvested at net asset
value in accordance with the Funds' then current prospectuses.
(d) Upon receipt of the monies paid to BCE by the Transfer Agent for the
redemption of shares of the Funds, BCE shall pay, or shall direct the
Plan Representative to pay, such monies. BCE shall not process or
effect any redemption with respect to shares of a Fund after receipt
by BCE of notification of the suspension of the determination of the
net asset value of such Fund.
(e) BCE represents that all orders transmitted to the Fund shall be based
on Instructions communicated in proper form by the Plan
representative, Participants and/or authorized committee. In no event
shall Instructions for processing on the First Business Day be
accepted by BCE later than the Close of Trading on such First Business
Day.
(f) BCE shall settle all trades on the Business Day following the trade
date (settlement date = trade date + 1). BCE will send to Transfer
Agent all wires for net purchases by the close of the Federal Reserve
Wire Transfer System (normally 5:30 p.m. ET) on settlement date and in
accordance with NSCC rules and procedures.
(g) Fund shall settle net redemption transactions not later than the close
of the Federal Reserve Wire Transfer System on the Business Day
immediately following the date a redemption order has been
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communicated to the Fund except as provided in the Fund's current
prospectus or statement of additional information. Such settlements
shall be affected in accordance with NSCC rules and procedures.
(h) Fund or its agent shall send (via mail, facsimile, or an electronic
medium acceptable to the parties) daily confirmations of all trades to
BCE no later than the day following the communication of the purchase
or redemption order.
On any Business Day when the Federal Reserve Wire Transfer System is
closed, all communication and processing rules will be suspended for the
settlement of trades. Trades will be settled on the next Business Day that the
Federal Reserve Wire Transfer System is open. The original trade date will
apply.
3. POSITION FILES. Daily, the Fund shall furnish, or cause to be furnished to,
BCE information setting forth the position of each Account Holder as of a
date determined by BCE. All such notifications will be communicated via
Fund/SERV. Should such services be unavailable for any reason, or should
either party not be currently transmitting or receiving such information
via Fund/SERV, the communication will be made via an electronic medium
acceptable to the parties.
4. DIVIDENDS AND DISTRIBUTIONS. Upon the declaration of each dividend and each
capital gain distribution by the Directors of the Fund with respect to
shares of the Portfolios, the Fund shall furnish, or cause to be furnished
to, BCE information setting forth the date of the declaration of such
dividend or distribution, the ex-dividend date, the date of payment
thereof, the record date as of which shareholders are entitled to payment,
the amount payable per share to the shareholders of record as of that date,
the total amount payable on the payment date. This information should be
provided to BCE no later than 7:00 p.m. ET on the ex-dividend date. On or
before the payment date specified in such resolution of the Trustees, the
Fund, or its agent, will pay to the Accounts sufficient cash to make
payment for Fund shares as of such payment date. With respect to the
reinvestment of dividends and capital gains, the number of shares
reinvested shall be furnished to BCE by the following Business Day. All
such notifications will be communicated via Fund/SERV. Should such services
be unavailable for any reason, or should either party not be currently of
transmitting or receiving such information via Fund/SERV, the communication
shall be made via an electronic medium acceptable to the parties.
5. VERIFICATION. Each party hereto shall, as soon as practicable after its
receipt of a report, notification or information transmitted by the other
party hereto, verify to such other party by facsimile or an an electronic
medium acceptable to the parties its receipt of such transmission, and in
the absence of such verification, a party to whom a transmission is sent
shall not be liable for any failure to act in accordance with such
transmission unless the sending party can prove that such transmission was
actually received by the other.
6. TRADE CORRECTIONS. In the event of an error in the process of a trade
request on behalf of an Account Holder by BCE,the Fund shall honor any
additional purchases by BCE to correct the error in the event the Fund
subsequently becomes closed to new investors.
7. PRICING ERRORS. In the event of an error in the computation of a
Portfolio(s)' net asset value per share ("NAV") or any dividend or capital
gain distribution (each, a "pricing error"), the Fund or its agent shall
immediately notify BCE as soon as possible after discovery of the error.
Such notification may be verbal, but shall be confirmed promptly in
writing. A pricing error shall be corrected as follows: (a) if the pricing
error results in a difference between the erroneous NAV and the correct NAV
of less than $0.01 per share, then no corrective action need be taken; (b)
if the pricing error results in a difference between the erroneous NAV and
the correct NAV equal to or greater than $0.01 per share, but less than 1/2
of 1% of the Portfolio's NAV at the time of the error, then the responsible
Fund agent shall reimburse the Portfolio(s) for any loss, after taking into
consideration any positive effect of such error; however, no adjustments to
shareholder accounts need be made; and (c) if the pricing error results in
a difference between the erroneous NAV and the correct NAV equal to or
greater than 1/2 of 1% of the Portfolio's NAV at the time of the error,
then the responsible Fund agent shall reimburse the Portfolio(s) for any
loss (without taking into consideration any positive effect of such error)
and shall make appropriate adjustments to shareholder's accounts, except
that if the account adjustment is less than a de minimus amount (e.g. $10),
account adjustment need not be made.
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The standards set forth in this Section are based on the Parties'
understanding of the views expressed by the staff of the SEC as of the date
of this Agreement. In the event the views of the SEC staff are later
modified or superseded by SEC or judicial interpretation, the parties shall
amend the foregoing provisions of this Agreement to comport with the
appropriate applicable standards, on terms mutually satisfactory to all
Parties.
8. ENHANCED TRADING CAPABILITIES. Fund agrees that should at any time its
capabilities are improved or enhanced in any manner to facilitate trading
of Funds or Portfolios subject to this Agreement, that BCE shall be advised
within 30 days of the initiation of this enhanced trading capability. At no
time shall Fund limit BCE from access to enhanced trading capabilities.
9. BLUE SKY MATTERS. To the extent feasible, BCE will cooperate with the Fund
with respect to any requests pertaining to the state of residence as well
as the state of domicile of the Plans.
10. GOVERNING LAW AND DISPUTE RESOLUTION.
(a) This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Colorado, without giving
effect to conflicts of law principles thereof which might refer such
interpretations to the laws of a different state or jurisdiction.
(b) Any controversy or claim arising out of or relating to this Agreement,
or breach thereof, shall be settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Regardless of the outcome of the proceeding,
the parties to any arbitration proceeding under this Agreement shall
bear their own costs and attorney fees. Fees and costs not
attributable to one party shall be shared equally by the parties to
the arbitration proceeding. Any decision rendered by an arbitrator or
arbitrators pursuant to this section shall be final and binding upon
all parties to the claim or controversy. The decision may be reduced
to judgment and enforced in any court of competent jurisdiction. The
provisions of this section shall survive the termination of the
Agreement.
11. INDEMNIFICATION. Except as to matters excluded from liability pursuant to
this Paragraph 11, the Fund and BCE each (each an "Indemnitor") shall
indemnify and hold harmless the other and its respective officers,
directors, partners, employees, trustees, shareholders and agents
("Indemnitees"), against any claims or liabilities suffered by all or any
of such Indemnitees to the extent arising out of any, or in connection with
any representation, warranty, or obligation under this Agreement, act or
commission or omission or the negligence or willful misconduct of the
Indemnitor relating to this Agreement or the services rendered hereunder,
including reasonable legal fees and other out-of-pocket costs of
investigating and/or defending against any such claim or liability.
Fund agrees to indemnify and hold harmless BCE for any loss incurred by BCE
due to errors or delays in the calculation of a Fund's daily net asset
value or made by Fund or its agent when transmitting such information to
BCE.
In providing services pursuant to this Agreement, the Fund and BCE shall
comply with all applicable Federal and state securities laws and
regulations and each party hereto shall fully indemnify the other for any
claims or liabilities suffered by such other party, or its officers,
directors, partners, employees, trustees, shareholders or agents (including
reasonable legal fees and other out-of-pocket costs of investigating and/or
defending against any such claim or liability), arising from non-compliance
by such party with any such laws or regulations.
Promptly after receipt by an indemnitee under this Paragraph 11 of notice
of the commencement of a claim or action that may be covered hereunder
("Claim"), the indemnitee shall notify the indemnitor of the commencement
thereof; provided, however, that the failure to provide such prompt notice
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to the indemnitor shall not relieve the indemnitor of any liability it may
have to an indemnitee unless such failure has prejudiced the defense of
such claim. As a condition to indemnification hereunder, the indemnitee
shall provide the indemnitor with complete details, documents and pleadings
concerning any Claim. The indemnitor will be entitled to participate in any
Claim and may assume the defense thereof with counsel reasonably
satisfactory to the indemnitee. However, if the indemnitee reasonably
determines that defenses may be available to it which are not available to
the indemnitor, and which may be inconsistent with the interests of the
indemnitor, then the indemnitee shall have the right to assume its own
defense, with counsel reasonably satisfactory to the indemnitor. Should
this situation arise, the indemnitee will promptly notify the indemnitor in
writing of its decision and the reasons therefor. The indemnitor shall
remain responsible for the cost of reasonable legal or other expenses
incurred as they pertain to the additional or inconsistent defenses of
indemnitee. After notice from the indemnitor to the indemnitee of the
indemnitor's election to assume the defense of any Claim, the indemnitor
will not be liable to any indemnitee under this Paragraph 11 for any legal
or other expenses subsequently incurred by the indemnitee in connection
with the defense of such Claim, except as stated herein. No party shall
unilaterally agree to a compromise or settlement of any such claim without
the written consent of the other party. Such consent shall not be
unreasonably withheld.
In providing the indemnifications set forth in the immediately preceding
paragraphs, each party hereto agrees to maintain such insurance coverage as
shall be reasonably necessary under the circumstances.
12. TERMINATION OF AGREEMENT. This Agreement may be terminated at any time by
either party upon ninety (90) days prior written notice to the other party.
Notwithstanding the foregoing, this Agreement shall be terminated
immediately upon either (i) a material breach by either party not cured
within thirty (30) days after notice from the other, or (ii) upon
termination of services from either party to the Account Holder. The
provisions of Paragraph 11 shall survive any termination of this Agreement.
13. NOTICE. Unless otherwise specified, all notices and other communications
required hereunder shall be in writing and shall be hand delivered, sent by
express delivery or mailed by certified mail to the other party at the
following address or such other address as each party may give notice to
the other:
If to BenefitsCorp Equities, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, President
cc: Xxxxxxx X. Xxxxx, Secretary and Compliance Officer
If to Fund:
Westcore Funds
0000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
cc: Drinker, Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: W. Xxxxx XxXxxxxx
14. AMENDMENT, ASSIGNMENT AND OTHER MATTERS. This Agreement may not be amended
except by a writing signed by each of the parties hereto, provided however,
that the Fund may add Portfolios to its series without written consent.
This Agreement shall not be assigned by either party without the reasonable
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written consent of the other party. This Agreement may be executed in
several counterparts, each of which shall be an original but all of which
together shall constitute one and the same instrument. The headings in this
Agreement are for reference only and shall not affect the interpretation or
construction of this Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
hereof and supersedes all other prior agreements, arrangements and
understandings, written or oral, among the parties.
15. MASSACHUSETTS BUSINESS TRUST The Names "Westcore Trust" and "Trustees of
Westcore Trust" refer respectively to the trust created and the Trustees,
as trustees but not individually or personally, acting from time to time
under an Amended and Restated Declaration of Trust dated November 19, 1987
which is hereby referred to and a copy of which is on file at the office of
State Secretary of the Commonwealth of Massachusetts and the principal
office of the Company. The obligations of "Westcore Trust" entered into in
the name or on behalf thereof by any of the Trustees, shareholders, or
representatives of the Trust are not made personally, but in such
capacities, and bind only the Trust Property, and all persons dealing with
any class of shares of the Trust must look solely to the Trust Property
belonging to such class for the enforcement of any claims against the Trust
16. FORCE MAJEURE. No party shall be deemed in default of this Agreement to the
extent that any delay or failure in performance results, without its fault
or negligence, from any cause beyond its reasonable control, such as acts
of God, acts of civil or military authority, acts of terrorism, embargoes,
epidemics, war, riots, insurrections, fires, explosions, earthquakes,
floods, unusually severe weather conditions, strikes, or extraordinary
market volume that results in substantial delay in receipt of correct data
from one or more generally recognized securities exchanges.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers and such agreement shall become
effective as of the date first listed above.
BENEFITSCORP EQUITIES, INC. Date
By: /s/ Xxxxxxx X. Xxxxxx 9/20/01
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Title: President
FUND Date
By: /s/ Xxxx X. Xxxxxxxxx 10/10/01
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Title: Vice President
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