Exhibit (h)(1)(ii)
SUB-ADMINISTRATION SERVICING AGREEMENT
THIS SUB ADMINISTRATION SERVICING AGREEMENT (THE "AGREEMENT") is made as of
the 21st day of May, 2001, by WESTCORE TRUST (the "Company" or the "Trust"), a
registered investment company, executing this Agreement, on its own behalf and
on behalf of each of the series or classes of shares, if any, listed on SCHEDULE
A, as amended from time to time (such series or classes being referred to as the
"Fund(s)"), DENVER INVESTMENT ADVISORS LLC ("DIA"), the investment advisor and
co-administrator to the WESTCORE TRUST, and MATRIX SETTLEMENT & CLEARANCE
SERVICES, LLC, a New York limited liability company, having an address at 0000
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000 ("Service Provider")
(collectively, the "Parties").
WHEREAS, the Service Provider, directly or through its affiliate or
designee (collectively, the "Service Provider") provides administrative support
services (the "Services"), that may include, but are not limited to, some or all
of the Services contained in SCHEDULE B annexed hereto for certain qualified and
non-qualified plans (the "Plans");
WHEREAS, the Parties wish to facilitate the purchase, exchange and
redemption of shares of the Funds (the "Shares"), through and in accordance with
the Rules & Procedures Manual of the National Securities Clearing Corporation,
as amended from time to time (the "Rules of the NSCC"), on behalf of the Plans
and the Participants through one or more accounts (as determined by the Service
Provider) in the Funds (individually an "Account" and collectively the
"Accounts") and the rendering of the Services, subject to the terms and
conditions of this Agreement;
WHEREAS, Company desires to engage Service Provider to provide the
Services, subject to the terms and conditions of this Agreement.
WHEREAS, DIA's commitment under the Agreement only relates to paying the
fee as defined below in Section 7 and SCHEDULE C of the Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the Parties, intending to be legally bound,
agree as follows:
AGREEMENT
1. INCORPORATION OF THE RULES OF THE NSCC. The Rules & Procedures Manual of
the NSCC, as amended from time to time, are hereby made a part of this Agreement
as if fully set forth herein and shall be a part of each trade cleared by
Service Provider on behalf of or at the request of the Company.
2. TERM. The terms of this Agreement shall commence on the date hereof and
shall continue until the earliest to occur of the following (the "Termination
Date"):
(A) This Agreement is terminated by mutual written consent of the
parties hereto. Consent shall not be unreasonably withheld by either party
hereto;
(B) This Agreement is terminated by written notice from Service
Provider to the Company, provided that Service Provider shall only be able to
terminate this Agreement under this Section 1(B)(i) 10 Business Days after the
Company has been notified of the occurrence of a material breach by the Company
of any of its representations, warranties, covenants or agreements hereunder
that the Company has not cured or taken reasonable steps to cure during such 10
Business day period or (ii) 30 Business Days after such notice is first provided
in the event that such default remains uncured at such time;
(C) This Agreement is terminated by written notice from the Company to
Service Provider, provided that the Company shall only be able to terminate this
Agreement under this Section 1(C)(i) 10 Business Days after the Company has been
notified of the occurrence of a material breach by Company of any of its
representations, warranties, covenants or agreements hereunder that the Service
Provider has not cured or taken reasonable steps to cure during such 10 Business
day period or (ii) 30 days after such notice is first provided in the event that
such default remains uncured at such time; or
(D) The first anniversary of the date of this Agreement; provided
that, this Agreement shall be automatically renewed for successive one (1) year
terms unless (i) either party not less than 30 days prior to the expiration date
of the initial term or any renewal term notifies the other party in writing that
the Agreement will not be renewed or (ii) the Agreement is otherwise terminated
pursuant to (A) (B) or (C) above; or upon such shorter notice as is required by
law, order or regulatory or self-regulatory authority with jurisdiction over the
terminating party;
The termination of this Agreement shall not relieve either party of
any obligation hereunder that accrued prior to such termination. The provisions
of Sections 8, 10 and 12, as hereafter provided, shall survive any termination
of this Agreement.
3. SERVICES PROVIDED BY THE SERVICE PROVIDER. The Service Provider shall
provide the Services for the plan participants (the "Participants") having an
interest in Shares of the Funds purchased by the Plans for which the Service
Provider provides the Services. The Accounts will be held of record by the Plan
or the Service Provider or its designee; separate accounts for Participants will
not be maintained by the Company, the Funds or their agents. The Services
provided may include, but are not limited to, some or all of the Services listed
in SCHEDULE B annexed hereto.
4. INFORMATION PROVIDED BY THE COMPANY. (a) The Company will furnish to the
Service Provider on each business day that the New York Stock Exchange ("NYSE")
is open for business (the "Business Day") with (i) net asset value information
as determined at or about the close of trading (currently 4:00 P.M. Eastern Time
("ET") on the NYSE or at such other time at which the Fund's net asset value is
calculated as specified in each Fund's current prospectus (the "Close of
Trading"); (ii) dividend and capital gains distribution information as it
becomes available; (iii) in the case of income Funds, the daily accrual for
interest rate factor (mil rate); and (iv) any other information that the Service
Provider needs to perform the Services listed in SCHEDULE B. The Company will
use commercially reasonable efforts to provide net asset value information, and
income accrual, dividend payment and capital gains information to the Service
Provider by 7:00 P.M. ET on each Business Day.
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(b) The Company will furnish to the Service Provider (i) a
confirmation with respect to each instruction as defined below, to the Service
Provider under Section 5 herein no later than the start of trading of the NYSE
on the Business Day following the date on which the instruction is deemed to be
received by the Company; (ii) share positions for each Fund on each Business
Day; (iii) quarterly statements detailing activity in each Account within
fifteen Business Days after the end of each quarter; and (iv) such other reports
as may be reasonably requested by the Service Provider.
5. INSTRUCTIONS AND SETTLEMENT. (a) Instructions to purchase and redeem
Shares by the Plan shall be effected as provided in this Section 5. The Service
Provider shall transmit to the Company instructions to purchase or redeem Shares
of the Funds for Accounts that have been or will be opened with the Funds for
the Plans (the "Instructions").
(b) The Service Provider will facilitate the clearing for the purchase
and redemption of trades of various mutual fund shares (the "Trades") in
accordance with the Rules of the NSCC. Purchases and redemptions for the Plans
shall be made at the net asset value determined as of the Close of Trading on
the Business Day that an Instruction to purchase or redeem shares is received by
the Service Provider, provided that (i) Service Provider receives Instructions
from Participants or Plan Representatives prior to the Close of Trading on that
Business Day; and (ii) the Company receives the Instructions from the Service
Provider by 6:00 A.M. ET on the next following Business Day. Instructions
received by the Service Provider from Participants or Plan Representatives after
the Close of Trading on any given Business Day shall be treated as if received
on the next following Business Day. The Service Provider has in place and at all
times during the term of this Agreement will maintain, internal controls
reasonably designed to prevent Participant and Plan orders received after the
Close of Trading on a Business Day from being aggregated with orders properly
received before that time.
(c) Payment for net purchases of Shares attributable to all
Instructions executed for the Accounts on a given Business Day will be wired by
the Service Provider no later than 3:00 P.M. ET on the next Business Day to a
custodial account designated by the Company. The Company will use its best
efforts to transmit payment for redemptions of Shares attributable to all
Instructions executed for the Accounts on a given Business Day to Service
Provider on the next Business Day no later than 3:00 P.M. ET to an account
designated by the Service Provider. Should a Fund need to extend the settlement
on a trade, the Company will contact Service Provider to discuss the extension.
For purposes of determining the length of settlement, the Company agrees to
treat the Accounts the same as it treats other direct shareholders of the Funds.
Each wire transfer of redemption proceeds shall indicate, on the Fed Funds wire
system, the amount thereof attributable to each Fund; provided, however, that if
the number of entries would be too great to be transmitted through the Federal
Funds wire system, the Company shall, on the day the wire is sent, fax such
entries to Service Provider or if possible, send via direct or indirect systems
access.
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Redemption wires should be sent to:
ABA #000000000
Credit to A/C #0138042817
BNF: MSCS settlement account
Fax supplements should be sent to: fax: #000-000-0000
attn: Xxxx Xxxxxxx
6. PROSPECTUS, PROXIES AND RELATED MATERIALS. The Company shall provide
Fund prospectuses, proxy materials, periodic Fund reports and other similar
materials that are required by law to be sent to shareholders, to the Service
Provider. Service Provider hereby expressly acknowledges that Service Provider,
and not the Company, shall be responsible for the delivery of any such
prospectuses, reports and materials to Plan Participants or Plan
Representatives, as the case may be, after delivery thereof by the Company.
7. COMPENSATION TO SERVICE PROVIDER. DIA will pay a fee as listed in
SCHEDULE C to the Service Provider in consideration for the services provided
pursuant to this Agreement. The parties agree that the Company and the Funds are
not obligated to pay fees hereunder.
8. MAINTENANCE OF RECORDS; PLAN INFORMATION; ACCESS. Service Provider shall
maintain and preserve all records, as required by law, in connection with
providing services hereunder and in making Shares available to the Plans.
Recordkeeping and other administrative services to a Plan and Participants shall
not be the responsibility of the Company. Except as otherwise provided
hereunder, Service Provider shall provide copies of all records relating to the
Plans, Participants and Funds as may reasonably be requested by the Company to
enable the Company or its representatives to comply with any request of the
Company's internal or external auditors, any governmental agency or similar
entity, to otherwise enable it to comply with all applicable state or Federal
laws or to enable the Company to fulfill its obligations and perform its duties
hereunder.
To the extent required under the 1940 Act, and the rules thereunder,
Service Provider agrees that records maintained by it hereunder are the property
of the Funds and will be preserved, maintained and made available in accordance
with the 1940 Act.
Upon reasonable notice by the Company to Service Provider, Service
Provider shall make available during normal business hours such of Service
Provider's facilities and premises employed in connection with the performance
of Service Provider's duties and responsibilities under this Agreement for
reasonable visitation, inspection and auditing by the Company, or any person
retained by the Company for such purposes as may be necessary or desirable to
evaluate the quality of the duties and responsibilities performed by Service
Provider pursuant hereto.
9. REPRESENTATIONS WITH RESPECT TO THE FUNDS. Service Provider shall not
make, nor shall it allow its affiliates to make representations concerning a
Fund or Shares, except those contained in (i) the then current prospectus of a
Fund, (ii) current sales literature created by or on behalf of the Funds, or
(iii) current sales literature created by Service Provider which has been
submitted to, and approved in writing, by the Funds or their agents prior to the
use or distribution of such sales literature by Service Provider, its affiliates
or agents.
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10. CONFIDENTIALITY. Except as otherwise provided under this Agreement, all
notifications, reports, books, records, data and other information supplied by
one party to the other in connection with this Agreement (collectively,
"Information") shall remain the property of the party supplying such information
and, except as otherwise provided hereunder, shall be kept confidential by the
other party; provided, however, that copies of any such information may be
retained by a party to the extent required by applicable law, court order, or
the reasonable internal polices of a party.
Service Provider and the Company acknowledge and understand the competitive
value and confidential nature of internal, non-public financial and business
information of the other parties hereto. The parties hereto also understand that
the information is to be considered as confidential, proprietary and trade
secrets of each other party and its affiliates. Service Provider and the Company
agree to use commercially reasonable efforts (the same being not less than that
employed to protect their own confidential and proprietary information) to
safeguard such information and to prevent the unauthorized, negligent or
inadvertent use or disclosure thereof. Except as otherwise provided hereunder,
neither Service Provider nor the Company shall, without the prior written
approval of an officer of another affected party, directly or indirectly,
disclose information to any person or business entity except for a limited
number of employees, attorneys, accountants and other advisers or agents of each
party (or their respective affiliates) on a need-to-know basis or as may be
required by law or regulation. Each party shall promptly notify the other in
writing of any unauthorized, negligent or inadvertent use or disclosure of
Information. (Each party shall be liable to the other for any use or disclosure
in violation of this Agreement by its employees, attorneys, accountants or other
advisers or agents.) Notwithstanding anything in this Agreement to the contrary,
the parties hereto (or their respective affiliates) may disclose any such
information: (a) as may be legally required by a court or governmental agency or
entity; (b) which is or becomes available to the general public through no act
of, failure to act by, or fault of, the disclosing party (or its affiliates);
(c) which is subsequently disclosed to a party hereto (or its affiliates) on a
non-confidential basis by a third party not having a confidential relationship
with another party hereto (or its affiliates) which rightfully acquired such
information; or (d) as independently developed by a party hereto (or its
affiliates) or (e) that was obtained by the disclosing party prior to the
execution hereof. This Section 10 shall continue in full force and effect
notwithstanding the termination of this Agreement for a period of one year after
such termination.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(A) Each of the Parties represents and warrants to the other as
follows:
(1) Such Party is an entity duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and is duly
qualified to transact business in each other jurisdiction where it is required
to be so qualified;
(2) This Agreement, and the other agreements and instruments
entered into by such Party in connection with this Agreement (the "Transaction
Documents"), have been duly authorized and executed by such Party, and represent
the legal, valid and binding obligations of such Party, enforceable against such
party in accordance with their respective terms;
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(3) The execution, delivery and performance by such Party of the
Transaction Documents does not violate, conflict with or constitute a breach of
any provision of any Federal, state or local law applicable to such Party, the
organizational documents of such Party or any material agreement, contract,
consent decree, order or other instrument to which such Party is a party or by
which such Party is bound;
(4) Other than a consent previously obtained, no consent or other
action of any third party is necessary for such Party to execute, deliver or
perform the Transaction Documents;
(5) The Service Provider is not affiliated with the Company in
any way. Neither will represent or imply in any way that either Party has any
relationship with the other Party except as described in this Agreement. The
Service Provider and the Company will not use the other's name in advertising or
marketing material, or otherwise, without the other's prior written consent,
except that each party may use the name of the other as may be necessary in
their respective regulatory filings;
(6) At all times, the Parties shall comply, and the Service
Provider shall use best efforts to cause its affiliates or designees to comply,
with all federal and state laws and regulations, including, but not limited to,
the Investment Company Act of 1940, the Securities Act of 1933, the Securities
and Exchange Act of 1934 and the Employee Retirement Income Security Act (all as
amended);
(7) All purchases, exchanges and redemptions of Fund shares
contemplated by this Agreement shall be effected in accordance with each Fund's
then current prospectus; and
(8) Each Party will promptly notify the other Parties to this
agreement if it is unable, for any reason, to perform any of its duties or
obligations under this Agreement or there is a material failure to comply with
the representations made herein.
(B) The Company represents, warrants, and covenants that:
(1) The Funds are series of investment companies registered under
the '40 Act and Shares sold by the Funds are, and will be, registered under the
'33 Act;
(2) Except as indicated on Schedule A, Shares of the Funds are
properly registered with the U.S. Securities and Exchange Commission and all
regulatory requirements necessary to permit Shares to be sold in accordance with
the terms of this Agreement have been satisfied for all fifty states and the
District of Columbia. The Company will notify the Service Provider immediately
if there is any change to the registration or qualification for sale of any
Shares;
(3) Instructions may be placed on each and every Business Day,
without regard to the market value of the transaction; and
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(4) The Service Provider is not responsible for any information
contained in any prospectus, registration statement, annual report, proxy
statement, or item of advertising, marketing material or any other document
prepared by the Company or its affiliate that relates to any Fund.
(C) Service Provider represents, warrants and covenants that:
(1) To the extent Service Provider is subject to the provisions
of the Financial Modernization Act of 1999 and other laws governing, among other
things, the conduct of activities by federally chartered and supervised banks
and other affiliated banking organizations, Service Provider will perform only
those activities consistent with its statutory and regulatory obligations and
will act solely as agent for, upon the order of, and for the account of,
Administrators;
(2) To the extent Service Provider engages one or more third
parties (including any of its affiliates or designees) to act as
subcontractor(s) or agent(s) ("Subcontractor") to perform the Services required
by this Agreement, Service Provider represents it has determined that each such
Subcontractor is capable of performing the Services, and that Service Provider
will take such measures as may be necessary to ensure that such Subcontractors
perform the Services in accordance with the terms of this Agreement and
applicable law. All references to Service Provider in this Agreement shall also
cover Subcontractors to the extent that Services are provided by Subcontractors
and:
(3) For all purposes of this Agreement, Service Provider is an
independent contractor, and has no authority to act as limited agent for any of
the Funds in any matter or in any respect except that if Service Provider
transmits purchase and sale instructions to any of the Funds or their agent
after the close of the New York Stock Exchange, then Service Provider will be
considered such Fund's agent for purposes of Rule 22c-1 under the '40 Act.
(4) Service Provider will promptly notify the Company in the
event it is unable for any reason, to perform any of its duties or obligations
under this Agreement or there is a material failure to comply with the
representations made herein.
(5) Service Provider will process orders for the purchase of Fund
shares only on behalf of customers residing in jurisdictions wherein the shares
are registered or qualified.
12. INDEMNIFICATION. Service Provider and its affiliates, officers,
directors, representatives and employees (the "Service Provider Parties") do
hereby agree to indemnify, defend and hold harmless the Company, and its
affiliates, officers, trustees, representatives and employees (collectively, the
"Company Parties") from and against any claims, liabilities, costs, attorneys'
fees and legal costs, expenses, indirect or direct losses, damages and penalties
(collectively, "Costs"), incurred by any such Company Party from or relating to
(A) Service Provider's gross negligence, or willful misconduct to performing its
obligations hereunder, (B) any material breach by Service Provider of any
representation, warranty, agreement or other obligation contained in this
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Agreement; and (C) such Company Party's investigation, preparation or defense of
any of the foregoing.
The Company Parties do hereby agree to indemnify, defend and hold
harmless the Service Provider Parties from and against any claims, liabilities,
costs, attorneys' fees and legal costs, expenses, indirect or direct losses,
damages and penalties (collectively, "Costs") incurred by any such Service
Provider Party arising from or relating to (A) such Company Party's gross
negligence, or willful misconduct to performing its obligations hereunder; (B)
any material breach by the Company of any representation, warranty, agreement or
other obligation contained in this Agreement; (C) such Service Provider acting
in accordance with any Instructions given by or on behalf of the Company for the
Funds; (D) any error or omission by the Company in an Instruction that results
in costs: (E) any untrue statement or alleged untrue statement of material fact
contained in the Company registration statement, prospectus of the Funds, any
sales literature of the Funds or any other document prepared by the Company
Parties or the omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and (F) such Service Provider's Party's investigation, preparation or defense of
any of the foregoing.
If any third party threatens to commence or commences any action for
which one party (the "Indemnifying Party") may be required to indemnify another
person hereunder (the "Indemnified Party"), the Indemnified Party shall promptly
give notice thereof to the Indemnifying Party. The Indemnifying Party shall be
entitled, at its own expense and without limiting its obligations to indemnify
the Indemnified Party, to assume control of the defense of such action with
counsel selected by the Indemnifying Party, which counsel shall be reasonably
satisfactory to the Indemnified Party. If the Indemnifying Party assumes the
control of the defense, it must pursue such defense with reasonable diligence
and the Indemnified Party may participate in the defense of such claim at its
own expense. In the event the Indemnifying Party, after notification by the
Indemnified Party of the commencement of an action, does not elect to assume the
defense of any such action, the Indemnifying Party will reimburse the
Indemnified Party(ies) named a defendant or defendants in such action for the
reasonable attorney fees and expenses of one single counsel agreed upon by them.
In any event, the Indemnifying Party shall not be responsible for any claim
settled or compromised, or for any confession of judgment, without its prior
written consent, which consent shall not be unreasonably withheld.
13. NON-EXCLUSIVITY. Both Parties may enter into other similar Servicing
Agreements with any other person or persons without the other's consent.
14. SET OFF RIGHTS. Service Provider shall have a contractual right to set
off any money Service Provider owes to the Company against any obligation of the
Company to Service Provider, but any such set off shall not constitute an accord
and satisfaction unless agreed to in writing by the Parties.
15. AMENDMENT AND WAIVER. Any of the terms of this Agreement may be waived,
amended or modified in whole or in part only by a writing signed by the Parties
hereto. No failure of any Party to insist upon strict performance of any
provision of this Agreement shall constitute a waiver.
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16. ENTIRE AGREEMENT. This Agreement, together with its accompanying
schedule(s), constitutes the entire Agreement between the Parties with respect
to the subject matter herein and there are no agreements, representations or
warranties between the Parties other than those set forth or provided for
herein.
17. COUNTERPARTS. 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.
18. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado without giving effect to the
principles of conflicts of law thereof.
19. 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.
20. LIABILITY; ACTS BEYOND CONTROL. Notwithstanding anything herein to the
contrary, Service Provider shall not be liable to the Company for any act or
omission of Service Provider provided that Service Provider acted in good faith,
unless such conduct was found to constitute gross negligence or willful
misconduct. Service Provider shall not be liable for undertaking any act on
Instructions from the Company or for failing to act in the absence of such
Instructions. Service Provider shall be entitled to conclusively rely on the
authenticity of any notice or other communication received from the Company so
long as Service Provider reasonably believes the notice or other communication
to be genuine. Under no circumstances shall Service Provider be liable to the
Company for (A) any losses or unrealized gains resulting from Instructions not
processed by Company on a timely basis, or (B) any indirect, incidental,
special, consequential or punitive damages, including without limitation any
damages claimed as a result of lost profits.
No Party shall be responsible for losses caused directly or indirectly
by conditions beyond its reasonable control, including but not limited to war,
natural disaster, government or NSCC restrictions or changes, exchange, market
or NSCC rulings, strikes, interruptions of communications or data processing
services, or disruptions in orderly trading on any exchange or market. The
Parties acknowledge that unforeseen circumstances may temporarily prohibit a
Party from performing its services under the NSCC system.
21. ARBITRATION. Company, and its affiliates, officers, directors,
representatives and employees (collectively, the "Company Parties") hereby agree
to settle by arbitration any controversy between Company and Service Provider or
any of its affiliates, officers, directors, representatives, and employees
(collectively, the "Service Provider Parties"), which controversy arises out of
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this Agreement or any related agreement or the transactions contemplated hereby
and thereby between Company and Service Provider. Such arbitration will be
conducted in Denver, Colorado, by, and according to the securities arbitration
rules then in effect of, the American Arbitration Association. Arbitration may
be initiated by serving or mailing a written notice.
The Parties acknowledge the following with respect to this arbitration
clause:
(A) Arbitration is final and binding on the Parties;
(B) The Parties are waiving their right to seek remedies in court,
including the right to a jury trial;
(C) Pre-arbitration discovery is generally more limited than and
different from court proceedings;
(D) The arbitrators' award is not required to include factual findings
or legal reasoning and any Party's right to appeal or to seek modification of
rulings by the arbitrators is strictly limited; and
(E) The panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities industry.
Any award the arbitrator makes will be final, and judgment on it may
be entered in any court having jurisdiction. The prevailing Party shall be
entitled to reasonable attorneys' fees together with any costs and expenses.
This arbitration agreement shall be enforced and interpreted exclusively in
accordance with applicable federal law, including the Federal Arbitration Act.
No person shall bring a putative or certified class action to arbitration, nor
seek to enforce any predispute arbitration agreement against any person who has
initiated in court a putative class action who is a member of a putative class
action until:
(1) The class certification is denied;
(2) The class is decertified;
(3) The customer is excluded from the class by the court; or
(4) Such forbearance to enforce an agreement to arbitrate shall
not constitute a waiver of any rights under this Agreement except to the extent
stated herein.
22. ASSIGNMENT. This agreement shall not be assigned by a party hereto
without the prior written consent of the other parties hereto.
23. ATTORNEYS' FEES. In any arbitration, or other proceeding by which one
Party either seeks to enforce its rights under this Agreement (whether in
contract, tort or both) or seeks a declaration of any rights under this
Agreement, the prevailing Party shall be awarded reasonable attorneys' fees,
together with any costs and expenses, to resolve the dispute and enforce the
final judgment.
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24. HEADINGS. The headings of this Agreement are for reference only and
shall not otherwise affect the interpretation or construction hereof.
25. NOTICE. Any notice, demand, consent, election, offer, approval, request
or other communication (collectively, a "Notice") required or permitted under
this Agreement must be in writing and either delivered personally, by a
nationally recognized overnight courier, or sent by certified or registered
mail, postage prepaid, return receipt requested or sent through electronic or
telephonic facilities, to the intended recipient thereof at the following
address or such address as one Party may give written notice to the other Party:
If to Service Provider, to:
Matrix Settlement & Clearance Services, L.L.C.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Dash, Assistant General Counsel
Fax:
If to Denver Investment Advisors LLC, to:
0000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxx
Fax: (000) 000-0000
If to Company, to:
Drinker Xxxxxx & Xxxxx LLP
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Mr. W. Xxxxx XxXxxxxx
Fax: (000) 000-0000
Denver Investment Advisors LLC
0000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxx
Fax: (000) 000-0000
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A Notice delivered personally will be deemed given only when
acknowledged in writing by the party to whom it is delivered. A Notice delivered
via a nationally recognized overnight courier shall be deemed given as of the
next Business Day after it is sent. A Notice that is sent via mail will be
deemed given three (3) Business Days after it is mailed. The address specified
by a party above for notices to be sent may be changed by such party by written
notice to the other party.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first written above.
MATRIX SETTLEMENT & CLEARANCE SERVICES, L.L.C.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: President
WESTCORE TRUST
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
DENVER INVESTMENT ADVISORS LLC
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Manager and COO
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SCHEDULE A
THE FUNDS
FUND NAME CUSIP TRADING SYMBOL
--------- ----- --------------
Westcore MIDCO Growth Fund 957904717 WTMGX
Westcore Growth and Income Fund 957904667 WTEIX
Westcore Small-Cap Growth Fund 957904568 WTSMX
Westcore Select Fund 957904576 WTSLX
Westcore International Frontier Fund 957904550 WTIFX
Westcore International Select Fund 957904543 WTISX
Westcore Blue Chip Fund 957904881 WTMVX
Westcore Mid-Cap Opportunity Fund 957904584 WTMCX
Westcore Small-Cap Opportunity Fund 957904618 WTSCX
Westcore Flexible Income Fund 957904709 WTLTX
SCHEDULE B
THE SERVICES
Services provided may include, but are not limited to, some or all of the
following:
(A) processing dividend and distribution payments from the Funds;
(B) providing periodic statements showing their positions in the
Shares or share equivalents;
(C) arranging for bank wires;
(D) responding to routine inquiries from authorized representatives
of the Plans (the "Plan Representatives") or Participants
relating to services performed by Service Provider;
(E) providing sub-accounting with respect to the Shares or the
information necessary for sub-accounting;
(F) if required by law, forwarding shareholder communications from
the Funds (such as proxies, shareholder reports, annual and
semi-annual financial statements and dividend, distribution and
tax notices);
(G) forwarding proxy statements and proxies containing any proposals
regarding this Agreement or the Plan related hereto;
(H) aggregating and processing purchase, exchange and redemption
requests from and placing net purchase, exchange and redemption
orders;
(I) providing a service that invests the assets of their accounts in
the Shares pursuant to specific or pre-authorized instructions;
(J) establishing and maintaining accounts and records relating to
transactions in the Shares;
(K) assisting the Company and or the Funds in changing dividend or
distribution options, account designations and addresses; and
(L) other similar services if requested by the Company.
SCHEDULE C
COMPENSATION
Capitalized terms used in this Schedule have the meanings given them in the
Agreement to which this SCHEDULE C is annexed.
DIA shall pay to the Service Provider, for each Fund, a fee, computed daily and
paid quarterly in arrears, equal to the percentage specified below applied to
the average daily value of the total number of shares of such Fund held in
accounts at the Service Provider. DIA shall pay the Service Provider such fee
within 30 days after the end of each quarter. For purposes of this Schedule, the
average daily value of the shares of each Fund will be based on the net asset
value reported by the Company to the Service Provider. For the services
discussed in the Agreement, the Service Provider shall receive a fee equal to
.15% per annum applied to the average daily value of the Shares of the Funds
held in the Service Provider Plan accounts.
