Exhibit (h)(33)
JOINT INSURED
ERRORS AND OMISSIONS LIABILITY AGREEMENT
AGREEMENT dated as of November 1, 2000 by and among Blue Chip Value Fund,
Inc. ("BCVF") and Westcore Trust ("Westcore") (such entities referred to herein
collectively as the "Funds"; and/or as the "Insured Parties").
BACKGROUND
A. The Funds are management investment companies registered under the
Investment Company Act of 1940 (the "Act").
B. Rule 17d-1(d)(7) under the Act permits arrangements regarding liability
insurance policies between registered investment companies provided certain
conditions are met.
C. A majority of the Board members of each Fund (including, if applicable,
a majority of the Board members who are not "interested persons" of such Fund as
defined by Section 2(a)(19) of the Act) have given due consideration of the
amount and ratable allocation of premiums of a joint insured errors and
omissions liability policy and (i) have approved each particular Fund's
participation in such policy as being in the best interests of that Fund, and
(ii) have determined that the allocation of the premium for the joint insured
policy to be allocated to each particular Fund as set forth herein is fair and
reasonable to that Fund.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants contained herein, hereby agree as follows:
1. JOINT POLICY. To insure the parties and their respective Board members
and officers against their errors or omissions, the parties shall purchase a
joint insurance policy (the "Policy") from a reputable insurance company (the
"Insurer").
2. LIMITS OF LIABILITY. The limit of the Insurer's liability under the
Policy shall not be less than an amount approved by each Insured Party's Board.
3. RATABLE ALLOCATION OF PREMIUM. Each Fund, so long as it continues to
operate as an investment company, agrees to pay its proportionate share of the
total premium due under the Policy, which share shall be determined based on
each Insured Party's proportionate share of the sum of the premiums that would
have been paid if such insurance coverage were purchased separately by the
parties[; provided, however, that in cases where any Fund, on a stand-alone
basis, would not be eligible for the Policy amount covered by this Agreement,
the allocation will be based on the premium associated with the maximum policy
amount available to that particular Fund based on its asset size or the premium
associated with a $1 million policy, whichever is greater].
4. ALLOCATION OF DEDUCTIBLES AND PROCEEDS
(i) The term "Loss" shall mean any Loss (as such term or similar term
is defined in the Policy) for which payment is made under the Policy by the
Insurer on behalf of the Insured Parties or the respective officers, Board
members or employees of the parties, or for which payment would have been made
by the Insurer under the Policy if the limits of the Insurer's liability under
the Policy had not been exceeded. The term "Recovery" shall mean the aggregate
amount paid by the Insurer on behalf of the parties (or their respective
officers, Board members or employees) in respect of a Loss.
(ii) If an insured Party sustains a Loss as a result of one or more
claims made during a single annual coverage period for which a Recovery is
received under the Policy, such Insured Party shall receive an amount equal to
the lesser of its actual Loss or the amount of coverage specified in Appendix A
less any other Recoveries the Insured Party has received during that single
annual coverage period.
(iii) In each case of Loss, the applicable deductible under the Policy
will be allocated among the Insured Parties sustaining Losses in proportion to
the relative share of Recovery received by each Insured Party.
(iv) If during an annual coverage period: (i) either (1) a claim is
made or (2) an Insured Party becomes aware of circumstances which could give
rise to a claim and provides notice to the Insurer in order that any claim
subsequently arising from circumstances subject to such notice be treated by the
Insurer as having been reported during the annual coverage period when notice
was given and subject to the Aggregate Limit of Liability (as such term or
similar term is defined in the Policy) for such period; and (ii) in a subsequent
year it is determined that an Insured Party that made such claim or gave such
notice is entitled to a Recovery (or would have been entitled to a Recovery
except that the Aggregate Limit of Liability had been exceeded) with respect to
the claim which was made or for which notice was given, then (i) such Recovery
will be treated hereunder as a Recovery received in the annual coverage period
in which the claim was made or notice was given (the "Period"); (ii) the
allocation of Recoveries for the Period will be recalculated under Section 4(ii)
hereof; and (iii) any Insured Party that received more of the aggregate
Recoveries than they would have received absent such recalculation shall pay
such excess to any Insured Party that gave such notice of the claim.
5. RUN-OFF COVERAGE. Each Insured Party agrees that should a Fund or
portfolios thereof cease to operate as an investment company the Policy will
provide run-off coverage for actions by such Insured Party's Board members and
officers prior to the cessation of such operations. Each Insured Party further
agrees that a portion of the premium paid under the Policy by those Insured
Parties which continue to operate as investment companies, will be for such
run-off coverage, provided that such premium would be no greater than the
premium that would be charged if no run-off coverage was provided. Any Recovery
by an Insured Party received under such run-off coverage shall be allocated in
accordance with Section 4 hereof.
6. CLAIMS AND SETTLEMENTS. Each Insured Party shall, within five days after
the making of any claim under the Policy, provide the other Insured Parties with
written notice of the amount and nature of such claim. Each Insured Party shall
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provide the other Insured Parties with written notice of the terms of settlement
of any claim made under the Policy by such party within five days after the
receipt thereof.
7. TERM. Subject to paragraph 8 hereof, this Agreement shall remain in
effect as long as the Board of each Fund that continues to operate as an
investment company (including, if applicable, a majority of the
directors/trustees who are not "interested persons," as defined by Section
2(a)(19) of the Act, of such Fund) makes the annual determinations respecting
the Policy required under Rule 17d-1(d)(7), and annually approves the renewal of
the Policy.
8. WITHDRAWAL AND AMENDMENTS. Any Insured Party may withdraw from this
Agreement at any time and cease to be party hereto (except with respect to
losses or notices of claims occurring prior to such withdrawal) by giving
written notice to the other Insured Parties of such withdrawal. Upon withdrawal,
a withdrawing Insured Party shall be entitled to receive any premium rebated by
the Insurer with respect to such withdrawal as is determined by the Insured
Parties to be equitable. This Agreement may be amended by the parties hereto in
a written agreement signed by all such parties.
9. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of Colorado.
10. NO ASSIGNMENT. This Agreement is not assignable.
11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be addressed as follows to the notified party:
Denver Investment Advisors LLC
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxx
Westcore Trust
c/o W. Xxxxx XxXxxxxx, III, Esq.
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument.
13. 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 the State
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Secretary of the Commonwealth of Massachusetts and the principal office of the
Trust. The obligations of "Westcore Trust" entered into in the name or on behalf
thereof by any of its trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
trustees, shareholders, or representatives of the Trust personally, but 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.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the day and year first above written.
BLUE CHIP VALUE FUND, INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Title: Chairman
WESTCORE TRUST
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Treasurer
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APPENDIX A
Minimum Coverage
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Blue Chip Value Fund, Inc. $3,000,000
Westcore Trust $5,000,000
