FundVest - No Transaction Fee Agreement
This Agreement is made as of___________________2003, among Pershing LLC
("Pershing"), a Delaware Corporation, and Westcore Trust, a Massachusetts
business trust, on behalf of its portfolios listed on Schedule I ("Fund"; such
portfolios referred herein as the "Portfolios") and Denver Investment Advisors
LLC, a Colorado limited liability company ("DIA").
WHEREAS it is understood that Pershing functions primarily as a clearing agent
for introducing broker-dealers/correspondents and in such capacity performs
traditional operational functions, including execution and clearance of trades
and holding Client/Shareholders funds and securities, and that certain of these
broker-dealers/correspondents have agreed to participate in Pershing's FundVest
no transaction fee program ("FundVest") under the terms and conditions as set
forth in an agreement between Pershing and the broker-dealers/correspondents
("Participating Correspondent(s)");
WHEREAS the terms and conditions set forth herein apply to mutual fund
transactions effected either on behalf of Client/Shareholders of Participating
Correspondents or direct Client/Shareholders of Pershing
("Client/Shareholders");
WHEREAS Fund wishes to have Pershing or Participating Correspondents provide on
its behalf certain administrative services with respect to Client/Shareholders
of such Portfolios which Pershing makes available to Client/Shareholders through
FundVest
WHEREAS such services will be performed pursuant to the terms and conditions as
set forth herein;
WHEREAS the parties hereto agree to transact business in the manner prescribed
in Schedule II attached hereto;
NOW THEREFORE, in consideration of the foregoing and the mutual promises set
forth below, the parties agree as follows:
1. Services
During the term of this Agreement, Pershing or Participating Correspondents
will perform services as set forth in Schedule III attached hereto (the
"Services"). Such Schedule may be amended from time to time with mutual
written consent of the parties.
2. Fees
a. For performance of Services, Pershing shall receive a fee (the "Fee")
from DIA, which will be calculated and paid as provided in Schedule IV,
attached hereto. Fees are solely for shareholder servicing and other
administrative services provided by Pershing or Participating
Correspondents and do not constitute payment in any manner for
investment advisory, distribution, trustee, or custodial services. Fees
shall be payable on all shares of the Portfolios being held by Pershing
for Client/Shareholders of Participating Correspondents, excluding: (i)
shares held by Pershing for such Client/Shareholders prior to the
effective date of
the Agreement as to such Portfolio (ii) shares first placed into a
brokerage account with Pershing after the termination of the Agreement
as to the Portfolio issuing such shares (iii) shares on which Pershing
or Participating Correspondent has, upon purchase, assessed
toClient/Shareholders any transaction fee. The total number of shares
of the Portfolios upon which Fees are due Pershing are referred to
within the Agreement as program shares ("Program Shares"). The Fund is
not responsible for payment of fees hereunder.
b. DIA's sole responsibility for fee payment shall be to Pershing.
Pershing shall be solely responsible for payment of a portion of such
fee to Participating Correspondents pursuant to separate agreements
with such correspondents.
c. In the event that Schedule III is revised, the parties agree, in good
faith, to negotiate a revision of fees set forth in Schedule IV.
3. Transaction Charges
Pershing or any Participating Correspondent shall not, during the term of
this Agreement, assess against, or collect from, Client/Shareholders, any
transaction fee upon the purchase or redemption of any Portfolio's shares
that meet the minimum purchase criteria set forth between Pershing and a
Participating Correspondent, except as noted in Section 4 below.
Client/Shareholder purchases not meeting the criteria may be charged a
transaction fee by the Participating Correspondent or Pershing, as the case
may be, and will not be included in service fee invoices presented to DIA
for payment.
4. Short Term Redemptions and Transfers
a. It is hereby understood that Pershing or Participating Correspondents
may apply a redemption fee for any short-term redemption of shares
purchased within specified time frames.
x. Xxxxxxxx or the Participating Correspondent, as the case may be,
reserves the right to apply a fee for the transfer of any Portfolio
position purchased within specified time frames.
5. Indemnification
x. Xxxxxxxx shall indemnify and hold harmless each of DIA, the Fund, and
their directors, trustees, members, officers, employees, and agents
(hereinafter, as used in this paragraph "Indemnified Parties") from and
against any and all losses, claims, liabilities and expenses
(including, but not limited to, reasonable attorney's fees) incurred by
any of them and arising as a result of: (i) Pershing's or any
Participating Correspondent's dissemination of information (oral or
written) regarding the Fund or any Portfolio, that is materially
incorrect or misleading and that was not provided to Pershing, or
approved, by the Fund, or any of its affiliated persons (as defined in
the Investment Company Act of 1940, as amended (the "1940 Act"))
(affiliates) or agents; or (ii) Pershing's or any Participating
Correspondent's willful misconduct or negligence in the performance of,
or failure to perform, its obligations under this Agreement or
the Broker-Dealer Agreement between ALPS Distributors, Inc., on behalf
of the Fund, and Pershing dated June 25, 1992 ("Service Agreement"),
except to the extent the losses are a result of the negligence, willful
misconduct, or breach of this Agreement or the Service Agreement by an
Indemnified Party or (iii) the failure of Pershing or any Participating
Correspondent to comply with any provision hereof or with any law, rule
or regulation, at common law or otherwise or the breach of any
representation or warranty herein (including the schedules hereto)
except to the extent the losses are a result of the negligence, willful
misconduct, or breach of the Agreement by an Indemnified Party.
x. Xxxxxxxx has obtained from each Participating Correspondent an
agreement with Pershing regarding the Program, which contains
substantively the following clause:
The Participating Correspondent shall indemnify and hold harmless each
of DIA, the Fund, the Portfolios as identified on Schedule A as may be
amended from time to time, and their members, directors, officers,
employees, and agents (hereinafter as used in this paragraph,
"Indemnified Parties") from and against any and all losses, claims,
liabilities and expenses (including, but not limited to, reasonable
attorney's fees) incurred by any of them and arising as a result of
Participating Correspondent's (i) violation of any law, rule or
regulation, including any related to or in connection with the sale of
Fund shares, (ii) dissemination of information, advertising or
promotional material (oral or written) regarding the Fund or any
Portfolio, that is materially incorrect or misleading and which was not
provided in writing to Participating Correspondent by the Fund or
approved in writing by the Fund, or any of its affiliated persons (as
defined in the 1940 Act)) or (iii) willful misconduct or negligence in
the performance of, or failure to perform, its obligations under this
Agreement, except to the extent the losses are a result of the
negligence, willful misconduct, or breach of the Agreement by an
Indemnified Party.
c. Fund hereby agrees to indemnify Pershing and Participating
Correspondents against any and all losses, claims, damages and
liabilities to which Pershing may become subject as a result of any
untrue or alleged untrue statement of a material fact contained in the
Fund's prospectus or statement of additional information, as amended or
supplemented from time to time, or the omission of a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Fund shall indemnify and hold harmless
Pershing and the Participating Correspondents and their directors,
officers, employees, and agents (hereinafter as used in this paragraph,
"Indemnified Parties") from and against any and all losses, claims,
damages, liabilities and expenses (including, but not limited to,
reasonable attorney's fees) incurred by any of them and arising as a
result of the Fund's (i) violation of any law, rule or regulation, at
common law or otherwise, including any related to or in connection with
the offering for sale of Portfolio shares, (ii) dissemination of any
information, advertising or promotional material regarding the Fund or
any Portfolio, that is materially incorrect or misleading and which was
provided or generated in writing by the Fund or any of its affiliated
persons (as defined in
the 1940 Act)) or (iii) willful misconduct or negligence in the
performance of, or failure to perform, its obligations pursuant to the
Service Agreement , except to the extent the losses are a result of the
negligence, willful misconduct or breach of the Agreement or the
Service Agreement by an Indemnified Party.
d. In any event, no party shall be liable for any special, consequential
or incidental damages.
e. A party seeking indemnification hereunder (an "Indemnified Party") will
give prompt written notice to the party from whom it is seeking
indemnification (the "Indemnifying Party") of any claim with respect to
which it seeks indemnification and will permit the Indemnifying Party
to assume the defense of such claim, provided however, that the
Indemnified Party shall have the right to employ separate counsel and
to participate in the defense of such claim, but the fees and expenses
of such counsel shall be at the expense of the Indemnified Party unless
there exists or will exist a conflict of interest between the
Indemnifying Party and the Indemnified Party which would make it
inappropriate in the reasonable judgement of the Indemnifying Party for
the same counsel to represent both the Indemnified Party and the
Indemnifying Party (in which case the Indemnifying Party shall not have
the right to assume the defense of such claim on behalf of the
Indemnified Party.) The Indemnifying Party, in defense of any action
assumed by it, shall not, without the consent of the Indemnified Party,
consent to entry of any judgement or enter into any settlement of such
action which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to the Indemnified Party of a
release from all liability in respect to such action. If such defense
is not assumed by the Indemnifying Party, the Indemnifying Party will
not be subject to any liability for any settlement made without its
consent (but such consent will not be unreasonably withheld), and the
Indemnifying Party will not be required to consent to entry of any
judgement or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant to the
Indemnified Party of a release from all liability in respect to such
action.
f. This section 5 shall survive termination of this Agreement.
6. Role of Parties
Fund hereby appoints Pershing and Participating Correspondents as agents
for the limited purpose of accepting orders and instructions with respect
to program shares purchased, exchanged or redeemed by client/shareholders.
Pershing and Participating Correspondents hereby accept such appointment on
the terms and conditions set forth herein.
The parties acknowledge and agree that the Services under this Agreement
are recordkeeping, shareholder communication, and related services only and
are not the services of an underwriter or a principal underwriter within
the meaning of the Securities Act of 1933, as amended, or the Investment
Company Act of 1940. This Agreement does not xxxxx Xxxxxxxx or
Participating
Correspondents any right to purchase shares from any Portfolio (although it
does not preclude them from purchasing any such shares), nor does it
constitute Pershing or Participating Correspondent an agent of the Fund for
purposes of selling shares of any Portfolio to any dealer or to the public.
To the extent Pershing or Participating Correspondent is involved in the
purchase of shares of any Portfolio by Client/Shareholders, such
involvement will be as agent of such Client/Shareholders only.
7. Information to be provided
The Fund shall provide to Pershing, prior to the effectiveness of this
Agreement, or as soon thereafter as possible, a copy of the current
prospectus and statement of additional information for each Portfolio
participating in the program described herein. The Fund shall provide
Pershing with written copies of any amendments to, or changes in such
documents as soon as possible after such amendments or changes become
available.
Pershing/Participating correspondent will provide a prospectus to
prospective shareholders or their agent upon request.
8. Compliance with Applicable Laws
x. Xxxxxxxx/Participating correspondent, where applicable, will not make
any offer or sale of Portfolio shares (a) in any state or jurisdiction
in which such shares are not qualified for sale or exempt from the
requirements of the relevant securities laws at any time after it has
been provided with written notice that such Portfolio is not so
qualified or exempt in such state or jurisdiction, (b) in any state or
jurisdiction in which it is not properly licensed or authorized to make
offers or sales, or (c) at any time after it has been provided with
written notice that such Portfolio is not then currently offering
shares to the public.
b. Each party is responsible for its compliance with all applicable laws,
rules and regulations governing its performance under this Agreement,
except to the extent its failure to comply with any law, rule or
regulation is caused by another party's breach of this Agreement.
9. Notices
All notices required under this Agreement must be in writing and delivered
either personally, by overnight delivery services, telex, facsimile,
registered or certified mail. Such notices will be deemed to be received as
of the date of actual receipt, or three (3) days after deposit, first class
postage prepaid, in the United States mail, whichever is earlier.
All such notices shall be made:
if to Pershing, to: Pershing Division of Xxxxxxxxx, Xxxxxx
& Xxxxxxxx Securities Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
with a copy to: Attention: General Counsel (at the same address);
if to the Fund or DIA, to the address as given below in the signature block.
10. Nonexclusivity
Each Party acknowledges that the other may enter into agreements, similar
to this one, with other parties, for the performance of services similar to
those to be provided under this Agreement, unless otherwise agreed to by
the parties.
11. Assignability
This Agreement is not assignable by any party without the other party's
prior written consent. Any attempted assignment in contravention hereof
shall be null and void, provided however, that Pershing or the Fund may
assign its rights and obligations under this agreement to any affliate or
successor.
12. Schedules.
All Schedules attached to this Agreement (as they may be amended from time
to time) are, by this reference, incorporated into, and made a part of,
this Agreement.
13. Entire Agreement--Amendment
This Agreement (including the Schedules attached hereto), constitute the
entire agreement between the parties with regard to the subject matter
herein. Additionally, these materials supersede any and all related
agreements, representations and warranties, whether written or oral, made
prior to the execution of this Agreement. Only writing executed by each
party to be bound by the amendment may amend this Agreement and the
Schedules attached hereto.
14. Governing Law
This Agreement will be governed by, and interpreted under, the laws of the
State of New York as applied to contracts entered into and to be performed
entirely within that state.
15. Counterparts
This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, but all of which together shall constitute one
instrument.
16. Effectiveness of Agreement--Termination
a. This Agreement will become effective as to a Portfolio as of: (i) the
date set forth on Schedule I opposite the name of the Portfolio; or
(ii) such later date as Pershing may, in its discretion, designate.
b. This Agreement shall have an initial term of one (1) year after which
it may be terminated, as to one or more Portfolios (as reflected in
Schedule I), by either party (i) upon ninety (90) days written notice
to the other parties; or (ii) upon such shorter notice as is required
by law, order, or instruction from a court of competent jurisdiction,
regulatory body, or self-regulatory organization with jurisdiction over
the terminating party; or (iii) automatically, effective on the day
following termination of any plan of distribution ("Rule 12b-1 Plan")
adopted and maintained pursuant to Rule 12b-1 under the 1940 Act by any
fund that has a Rule 12b-1 Plan in effect as of the effective date of
this Agreement, provided that a portion of the Fee is paid pursuant to
the Rule 12b-1 Plan.
c. Upon termination as to a Portfolio, DIA will not be obligated to pay
the fee with respect to any shares of the Portfolio that become part of
a Pershing Client/Shareholders account or the annual maintenance fee
after the date of such termination. However, notwithstanding any such
termination, DIA will remain obligated to pay Pershing the fee as to
each share of such Portfolio that was considered when calculating the
fee as of the date of termination (a "Pre-Termination Share"), for so
long as such Pre-Termination Share is held in any Pershing brokerage
account and Pershing or Participating Correspondent continues to
perform the Services as to such shares. If DIA ceases to act as
sponsor, investment advisor, administrator, or other service provider
to the Portfolios, then its obligations to make payments under the
Section 2a and Schedule IV after termination of this Agreement as
provided in this Section 16 shall immediately cease upon provision of
30 days prior written notice to Pershing, provided that DIA's payment
obligations shall continue by the successor sponsor, investment
advisor, or other service provider appointed by the Portfolios.
Pershing agrees that in the event of termination of this Agreement as
provided in Section 16b, it shall provide DIA with such reports and
certificates as DIA may reasonably request as necessary to determine
that the continued payments of fees has been calculated in accordance
with this Agreement. DIA shall reimburse Pershing promptly for any
reasonable expenses Pershing incurs in effecting any termination of
this Agreement, including, but not limited to, delivery to the Fund of
any records, instruments, or documents reasonably requested by the
Fund.
17. Confidentiality
Each party acknowledges and understands that any and all technical, trade
secret, or business information, including, without limitation, financial
information, business or marketing strategies or plans, product development
or customer information, which is disclosed to the other or is otherwise
obtained by the other, its affiliates, agents or representatives during the
term of this Agreement (the "Proprietary Information") is confidential and
proprietary, constitutes trade secrets of the owner, and is of great value
and importance to the success of the owner's business. Each party agrees to
use its best efforts (the same being not less than that employed to protect
his own proprietary information) to safeguard the Proprietary Information
and to prevent the unauthorized, negligent or inadvertent use or disclosure
thereof. Neither party shall, without the prior written approval of any
officer of the other, directly or indirectly, disclose the Proprietary
Information to any person or business entity except for a limited number of
employees, attorneys, accountants and other advisors of the other 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 Proprietary information. Each party
shall be liable under this Agreement to the other for any use or disclosure
in violation of this Agreement by its employees, attorneys, accountants, or
other advisors or agents. Notwithstanding the forgoing, Proprietary
Information does not include information (a) 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, (b) that 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)
independently developed by a party hereto (or its affiliates), or (d)
obtained prior to the execution of this Agreement. This section shall
continue in full force and effect notwithstanding the termination of this
Agreement.
18. Custody
Fund acknowledges that Portfolio shares maintained by the Fund for
Client/Shareholders hereunder are held in custody for the exclusive benefit
of Client/Shareholders of Pershing or Participating Correspondents and
shall be held free of any right, charge, security interest, lien or claim
against Pershing or Participating Correspondents in favor of the Fund or
its agents acting on behalf of the Fund.
19. Massachusetts Business Trust Provisions
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
Secretary of the Commonwealth of Massachusetts and at the principal office
of the Fund. The obligations of "Westcore Trust" entered into in the name
or on behalf thereof by any of the 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 Fund personally,
but bind only the Fund property, and all persons dealing with any class of
shares of the Fund must look solely to the Fund property belonging to such
class for the enforcement of any claims against the Fund.
20. Anti-Money Laundering
Fund acknowledges that Pershing is a clearing broker. Pershing, in its role
as clearing broker, carries accounts for introducing brokers. Pershing
warrants and represents to Fund that:
a. it has written anti-money laundering procedures consistent with its
role as clearing broker;
b. it abides by all applicable U.S. anti-money laundering laws and
regulations;
c. it will cooperate with the Fund and provide information and reports to
the Funds' designated compliance officer, if reasonably requested from
time to time;
d. it will provide information and records relating to its anti-money
laundering program to federal examiners as may be requested
e. it will reasonably assure itself that introducing brokers have
acknowledged their responsibility to "know its customer"; have
appropriate tools to detect suspicious transactions; will cooperate
with Pershing in their joint efforts to detect money laundering or
terrorist funding; and have tools to abide by USA PATRIOT ACT
including: section 312 (private banking), section 000 (xxxxx xxxxx),
section 319 (foreign bank ownership), section 326 (customer
identification and verification), and all other applicable statutes.
IN WITNESS WHEREOF, duly authorized representatives of the parties hereto have
executed this Agreement,
Westcore Trust Pershing LLC
By: By:
---------------------------------- ------------------------------------
Print Name: Print Name:
-------------------------- ----------------------------
Title: Title:
------------------------------- ---------------------------------
Date: Date:
----------------------------- -------------------------------
Address:
C/O ALPS Mutual Funds Services, Inc. Denver Investment Advisors LLC
0000 Xxxxxxxx
Xxxxx 0000 By: _______________________
Xxxxxx, XX 00000
Print Name: ________________
With a copy to: Title: ______________________
Mr. W. Xxxxx XxXxxxxx, Esq.
Drinker Xxxxxx & Xxxxx LLP Date: ______________________
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000 Address:
Telecopier: 215-988-2757 0000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx XX, 00000
Attn: Xxxxxx X. Xxxxxx
Schedule I
Fund Name CUSIP Symbol
--------- ----- ------
Westcore Midco Growth 957904717 WTMGX
Westcore Growth Fund 957904667 WTEIX
Westcore Small-Cap Growth Fund 957904568 WTSMX
Westcore Select Fund 957904576 WTSLX
Westcore International Frontier Fund 957904550 WTIFX
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
Westcore Colorado Tax-Exempt Fund 957904782 WTCOX
Schedule II
Operational Procedures Relevant to the Agreement
Unless processed using the NSCC FundServ and/or Networking interfaces in the
customary manner as prescribed by the NSCC, or as amended by mutual agreement
whether verbally or in writing, operational responsibilities will be executed as
outlined below in paragraphs (1), (2), and (3).
(1) Purchase and Redemption Orders
Pershing will aggregate and calculate purchase and redemption orders for shares
of a Portfolio that it has accepted as placed by Client/Shareholders prior to
the close of trading on the New York Stock Exchange, and will communicate to
Fund such orders for each Portfolio for each business day. Such orders will
receive the applicable Portfolio's closing net asset value for that business
day, provided they are communicated to Fund by 5:00 p.m. Eastern Time.
(2) Settlement of Trades
Both Pershing and Fund will use their best efforts to cause to be transmitted by
wire on the Business Day immediately following trade date (settlement date) to
an account as directed by the counterpart, the proceeds of all redemption orders
and the purchase price of all purchase orders.
(3) Account Activity and Distribution Information
(a) Fund shall cause to be provided to Pershing confirmations of Fund activity
in the form of statements detailing activity no less frequently than monthly, as
well as other information as may reasonably be requested by Pershing.
(b) Fund shall cause to be provided to Pershing all distribution announcement
information (ex dates, record dates, payable dates, distribution rate per share,
record date share balances, etc.) as soon as it is announced by each Portfolio.
Schedule III
Schedule of services to be performed by Pershing or Participating Correspondent
(s) pursuant to this Agreement.
1. Pershing on behalf of itself and any Participating Correspondents,
represents and warrants that it has and will continue at all times to have
the necessary facilities, equipment and personnel to perform the services
hereunder in a businesslike and competent manner and its system complies
with any applicable laws, rules and regulations related to the services to
be provided under this Agreement, including the maintenance and
preservation of all records and registrations required by any applicable
laws, rules and regulations.
2. Client-Shareholders are aware that they are transacting business with
Pershing/Participating Correspondent and not the Fund, and will look to
Pershing/Participating Correspondent and not the Fund for resolution of
problems or discrepancies in their accounts.
3. Pershing/Participating Correspondent agrees that it will perform various
services for the Client-Shareholders in those accounts, including where
applicable:
o Establishing and maintaining records of Client-Shareholders'
accounts;
o Processing purchase and redemption transactions;
o Confirming Client-Shareholder transactions;
o Answering routine client inquires regarding the Fund;
o Assisting clients in changing dividend options, accounts
designations and addresses; withholding taxes on non-resident
alien accounts;
o Disbursing income dividends and capital gains distributions;
o Reinvesting dividends and distributions;
o Preparing and delivering to Client-Shareholders and state and
federal authorities, including the United States Internal
Revenue Service, such information respecting dividends and
distributions paid by the Funds as may be required by law,
rule or regulation;
o Withholding on dividends and distributions as may be required
by state or Federal authorities from time to time;
o And such other services as Fund may reasonably request.
Pershing/Participating Correspondent shall maintain all historical
Client-Shareholder records, consistent with requirements of all applicable
laws, rules and regulations. (a) Upon the request of the Fund, Pershing
shall provide copies of all the historical records relating to transactions
between the Funds and the Shareholders, written communications regarding
the Funds to or from the Shareholders and other materials, in each case (1)
as are maintained by Pershing in the ordinary course of its business and in
compliance with applicable law, and (2) as may reasonably be requested to
enable the Fund including without limitation its auditors or legal counsel
to (A) monitor and review the Services, (B) comply with any request of a
governmental or self regulatory organization, (C) verify compliance by
Pershing with the terms of this agreement, (D) make required regulatory
reports or reports to Fund's Board of
Trustees, or (E) perform general customer supervision. Pershing agrees that
it will permit the Fund to have reasonable access to its personnel and
records in order to facilitate the monitoring of the services. (b) Upon the
request of Pershing, Fund shall provide copies of all the historical
records relating to transactions between the Funds and Pershing, written
communications regarding the Funds to or from Pershing and other materials,
in each case (1) as are maintained by the Fund in the ordinary course of
its business and in compliance with applicable law, and (2) as may
reasonably be requested to enable Pershing to (A) comply with the request
of any governmental body or self regulatory organization, (B) verify
compliance by the Fund with the terms of this Agreement, (C) make required
regulatory reports, or (D) perform general customer supervision.
4. Pershing/Participating Correspondent shall make available to Fund (if
requested) records or communications necessary to determine the number of
Client-Shareholders in each Pershing/Participating Correspondent omnibus
account, if applicable.
Schedule IV
For performance of Services as outlined in Schedule III (attached hereto),
Pershing shall receive a service fee calculated as follows:
An annual service fee rate of 35 basis points of the average daily market value
of Program Shares, to be paid monthly upon receipt of invoice by DIA from
Pershing. Total market value of Program Shares will be calculated daily and
averaged throughout the exact number of days in the month to arrive at the
average daily market value.
Payment shall be made by the Fund to Pershing within 30 days after DIA's receipt
of such invoice. Unless otherwise agreed to by Pershing and DIA, such payment
shall be by wire transfer and shall be separate from other wire transfer
payments from DIA to Pershing.
On a yearly basis a per Portfolio annual maintenance fee will be charged to DIA
based upon December brokerage month-end assets:
Asset Level (per fund) Annual Maintenance Fee
---------------------- ----------------------
$0-2.5 million $4,000
$2.5-$5 million $2,500
over $5 million 0
The annual maintenance fee for a Portfolio shall be waived if such Portfolio has
been included in Schedule I and subject to the terms of the Agreement for less
than 12 months. Pershing will not charge DIA an annual maintenance fee for any
Portfolio if the average assets per Portfolio exceeds $5 million (as measured by
adding all Program Shares and Pre-Program Shares, based on December month-end
assets, and dividing the total number of Portfolios.
The maximum total annual maintenance fee payable by DIA shall not exceed
$15,000.
DIA shall pay Pershing such annual maintenance fee in accordance with the above
paragraph.
