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EXHIBIT (h)(21)
AGENCY TRADING AGREEMENT
This Agreement is made as of September 3, 1999, between Mid-Atlantic Capital
Corporation ("MACC"), each registered investment company ("Fund 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 1, as amended from time to time
(such series or classes being referred to as the "Fund(s)"), and Fund Affiliate
(defined below) that has executed this Agreement. Fund Company and Fund
Affiliate are collectively referred to herein as "Fund Parties." In the event
that there are no series or classes of shares listed on Schedule I, the term
"Fund(s)" shall mean "Fund Company."
WHEREAS Fund Affiliate is either (i) an investment adviser to or administrator
for the Funds, (ii) the principal underwriter or distributor for the Funds,
(iii) a transfer agent for the Funds or (iv) a bookkeeping and pricing agent for
the Funds.
WHEREAS Fund Parties wish to have MACC perform certain recordkeeping,
shareholder communication, and other services for each Fund.
RECITAL
WHEREAS, MACC provides certain recordkeeping and other services, including
processing of orders and instructions for certain tax-qualified employee benefit
plans and tax-exempt trusts in which plan assets are held (individually, the
"Plan", and collectively, the "Plans"), which are being directed by one or more
investment advisors, a Plan sponsor or an administrative
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committee, as the case may be, of each Plan (a "Plan Representative"), or upon
the direction of Plan participants ("Participants");
WHEREAS, MACC and the Fund Company desire to facilitate the purchase, exchange
and redemptions of shares of the Funds (the "Shares") on behalf of the Plans
through one or more accounts (not to exceed one per Plan) in each Fund
(individually, an "Account" and collectively, the "Accounts"), subject to the
terms and conditions of this Agreement; and
WHEREAS, the Fund Company and MACC desire MACC to serve as the Fund Company's
agent to receive and transmit orders and instructions regarding the purchase,
exchange and redemption of Shares, subject to the terms and conditions of this
Agency Trading Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties hereto agree as follows.
1. APPOINTMENT OF MACC
The Fund Company hereby appoints MACC as agent for the limited purpose
of accepting orders and instructions with respect to Shares purchased,
exchanged or redeemed by the Plans. MACC may delegate some or all of
their duties under this Agreement to such other parties who MACC in
their sole discretion determine to be competent to assume such duties;
provided, however, that MACC shall be responsible and liable for the
acts and conduct of any such delegee to the same extent as if the acts
and conduct had been performed by MACC. MACC hereby accepts its
appointment on the terms and conditions set forth herein.
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2. PRICING INFORMATION
The Fund Company will furnish, or caused to be furnished, to MACC on
each business day that the New York Stock Exchange is open for business
("Business Day") with: (i) net asset value information as of the close
of trading on the New York Stock Exchange or as at such other time at
which a Fund's net asset value is calculated as specified in such
Fund's prospectus ("Close of Trading"); and (ii) in the case of Funds
the principal purpose of which is the generation of interest income,
the daily accrual or interest rate factor (mil rate). The Fund Company
shall use reasonable efforts to provide such information to MACC by
7:00 p.m. Eastern Time ("ET") on the same Business Day.
3. ORDERS FOR PURCHASE, REDEMPTION, OR EXCHANGE
MACC, as agent of the Fund Company, shall (i) receive from, or on
behalf of, Participants or Plan Representatives for acceptance as of
the Close of Trading on each Business Day (the "Trade Date") (based
solely upon the receipt of orders and instructions from such
Participants or Plan Representatives prior to the Close Trading on any
such Business Day) orders and instructions for the purchase, redemption
on exchange of Shares held by the Plans, and (ii) upon acceptance of
any such orders and instructions, communicate such acceptance to the
Fund Company and transmit to the Fund Company orders and instructions
to purchase, exchange or redeem Shares for specified Accounts. On each
business day, MACC shall aggregate and calculate the net purchase and
redemption amounts for such orders for each account and communicate
such net aggregate amounts to the Fund Company prior to 9:00 a.m. ET on
the Business Day next succeeding the Trade Date. All communications
herein shall be by facsimile or other form of written electronic
transmission. If provided in the applicable shareholder's
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account application, dividends, capital gains, and other distributions
will be automatically reinvested on payable date at net asset value in
accordance with each Fund's then current prospectus.
4. SETTLEMENT
(a) Purchases. MACC will transmit the purchase price of each
purchase order to the Fund Company in accordance with written
instructions provided by the Fund Company to MACC for the
applicable Fund by wire transfer prior to 1:00 p.m. ET, on the
next Business Day following the Trade Date. MACC agrees that
if it fails to (i) wire the purchase price to the Fund Company
before such 1:00 p.m. ET deadline or (ii) provide the Fund
Company with a Federal Funds wire system reference number
evidencing the wire transfer of the purchase price to the Fund
Company prior to such 1:00 p.m. ET deadline, it will indemnify
and hold harmless the Fund Company for which such purchase
order was placed from any liabilities, costs and damages
either may suffer as a result of such failure. The cost
associated with any delayed wire is the responsibility of
MACC.
(b) Redemptions. The Fund Company will use its best efforts to
transmit to MACC the proceeds of all redemption orders placed
by MACC by 1:00 p.m. ET on the Business Day immediately
following the Trade Date by wire transfer on that Business
Day. Should a Fund need to extend the settlement on a trade,
the Fund Company will contact MACC to discuss the extension.
For purposes of determining the length of settlement, the Fund
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
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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 Fund
Company shall, on the day the wire is sent, fax such entries
to MACC or if possible, send via direct or indirect systems
access.
Redemption wires should be sent to:
ABA # 000000000
Credit to # 5012950
Fax supplements should be sent to:
Attn: Xxx Banco
Fax: (000) 000-0000
5. PARTICIPANT RECORDKEEPING
Recordkeeping and other administrative services to a Plan and Plan
Participants shall be the responsibility of MACC and shall not be the
responsibility of the Fund Company. The Fund Company will recognize, as
determined by MACC, each Plan or all Plans, as the case may be, as a
single shareholder and as an unallocated account in the Funds, and, in
any event, the Fund Company will not maintain separate accounts for
Plan Participants.
6. FUND INFORMATION
MACC will perform a trade reconciliation to ensure that Plan and
Account assets are in balance. MACC shall notify the Fund Company of
any differences between the Plan and/or Participant balances maintained
by MACC and the Account(s) balances
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maintained by the Fund Company within two (2) Business Days of receipt
of the Fund Company's confirmation. MACC and the Fund Company shall
determine and take, to the extent applicable, appropriate corrective
actions with respect to any such differences. Upon the reasonable
request of MACC, the Fund Company will notify MACC in writing by
electronic or telephonic communication facilities of (i) the ex-date of
all Fund distributions (dividends and capital gains) and (ii) the
reinvestment of Shares as of payable date of any such distribution.
7. PROSPECTUS, PROXIES AND RELATED MATERIALS
The Fund Company shall provide Fund prospectuses, proxy materials,
periodic Fund reports and other similar materials that are required by
law to be sent to shareholders, in such quantities and at such times as
MACC shall reasonably request. MACC hereby expressly acknowledges that
MACC, and not the Fund 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. MACC shall promptly deliver
any such prospectuses, reports and materials to Plan Participants or
Plan Representatives, as the case may be after delivery thereof by the
Fund Company.
8. MAINTENANCE OF RECORDS; PLAN INFORMATION; ACCESS
Each party shall maintain and preserve all records, as required by law,
in connection with providing services hereunder and in making Shares
available to the Plans. Except as otherwise provided hereunder, MACC
shall provide copies of all records relating to the Plans, Participants
and Funds as may reasonably be requested by the Fund Company to enable
the Fund Company, the Funds or their representatives to comply with any
request
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of the Fund 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 Fund Company to
fulfill its obligations and perform its duties hereunder.
To the extent required under the 1940 Act, and the rules thereunder,
MACC 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 Fund Company to MACC, MACC shall make
available during normal business hours such of MACC's facilities and
premises employed in connection with the performance of MACC's duties
and responsibilities under this Agency Trading Agreement for reasonable
visitation, inspection and auditing by the Fund Company or a Fund, or
any person retained by the Fund Company or a Fund for such purposes as
may be necessary or desirable to evaluate the quality of the duties and
responsibilities performed by MACC pursuant hereto.
This Section 8 shall survive termination of this Agreement.
9. COMPLIANCE WITH LAWS
At all times the Fund Company and MACC shall comply with all laws,
rules and regulations, to the extent applicable, by virtue of entering
into this Agency Trading Agreement or otherwise.
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10. REPRESENTATIONS WITH RESPECT TO THE FUNDS
MACC shall not make, nor shall it allow its affiliates to make
representations concerning a Fund or Shares, except those contained (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 MACC 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 MACC, its affiliates or agents.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS
MACC represents, warrants, and covenants that:
(a) it has full power and authority under applicable law, the
governing Plan documents and from the appropriate Plan
Representative(s), and has taken all action necessary, to
enter into and perform its obligations and duties under this
Agency Trading Agreement, and that by doing so it will not
breach or otherwise impair any other agreement or
understanding with any other person, corporation or other
entity; this Agency Trading Agreement constitutes its legal,
valid and binding obligation and is enforceable against it in
accordance with its terms; no consent or authorization of,
filing with or other act by or in respect of any governmental
authority, is required in connection with the execution,
delivery, performances, validity or enforceability of this
Agency Trading Agreement;
(b) it will timely disclose to Plan Representatives or Plan
Participants, as the case may be, the arrangement provided for
in this Agency Trading Agreement;
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(c) it is registered, shall register or is exempt from
registration as a transfer agent pursuant to Section 17A of
the Securities and Exchange Act of 1934, as amended (the
"1934 Act") (it being understood by the parties hereto that
failure on the part of MACC to so register, if not exempt from
registration, will constitute a material breach of this Agency
Trading Agreement 30 days after the effective date of this
Agency Trading Agreement or such earlier date on which such
failure constitutes violation of applicable law or
regulation); if required under applicable regulations;
(d) all purchases, redemptions and exchanges orders and
instructions received by it on any Business Day and
transmitted to the Fund Company for processing pursuant to
this Agency Trading Agreement will have been received and time
stamped prior to the Close of Trading on such Business Day;
(e) all purchases, exchanges and redemptions of Fund shares
contemplated by this Agency Trading Agreement shall be
effected in accordance with each Fund's then current
prospectus;
(f) it will comply with all applicable state and Federal laws and
with the rules and regulations of authorized regulatory
agencies thereunder;
(g) the receipt of any fees by MACC directly or indirectly
relating to the purchase, exchange or redemption of the Funds
has been reviewed by legal counsel to MACC and will not
constitute a "prohibited transaction" as such term is defined
in Section 406 of the Employee Retirement Income Security Act
of 1974, as amended, and Section 4975 of the Internal Revenue
Code of 1986, as amended, for which an exemption is not
available, and is not otherwise prohibited by any other
applicable law, governing instrument or court order; and
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(h) it will promptly notify the Fund Company in the event that it
is unable, for any reason, to perform any of its duties or
obligations under this Agency Trading Agreement or there is a
material failure to comply with the representation made herein
above.
Each of the Fund Companies and Fund Affiliates represents, warrants,
and covenants as to itself only and not that:
(a) it has full power and authority under applicable law, and has
taken all action necessary, to enter into and perform its
duties and obligations under this Agency Trading Agreement and
that by doing so it will no breach or otherwise impair any
other agreement or understanding with any other person,
corporation or other entity;
(b) all purchases, exchanges and redemptions of Fund shares
contemplated by this Agency Trading Agreement shall be
effected in accordance with each Fund's then current
prospectus;
(c) it will comply with all applicable state and Federal laws and
with the rules and regulations of authorized regulatory
agencies thereunder; and
(d) it will promptly notify MACC in the event that it is unable,
for any reason, to perform any of its duties or obligations
under this Agency Trading Agreement or there is a material
failure to comply with in the representations made herein
above.
The Fund Company represents, warrants and covenants as to itself only
that the Funds are registered as investment companies under the 1940
Act and Fund Shares are registered under the Securities Act of 1933, as
amended;
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12. INDEMNIFICATION
MACC shall indemnify and hold harmless each of the Fund Affiliates, the
Fund Company and their respective officers, directors, partners,
trustees, members, shareholders, employees and agents ("Indemnitees")
against any loss, cost, damage, expense, liability or claim including,
without limitations, reasonable legal fees and other out-of-pocket
costs of defending against any such loss, cost, damage, expense,
liability or claim, suffered by all or any of such Indemnitees to the
extent arising out of, or relating to, (i) any actual negligent act or
omission by MACC or its agents relating to this Agency Trading
Agreement or the services rendered hereunder (ii) a material breach of
any of the representations, warranties and covenants made hereunder,
(iii) the failure to timely and properly transmit orders and
instructions to the Fund Company (or its affiliates), (iv) cancellation
or subsequent correction of any orders and instructions transmitted to
the Fund Company (or its affiliates), or (v) discrepancies between
Participant and Plan balances maintained by MACC and the Account(s)
balances maintained by the Fund Company (or its affiliates) due to
errors caused by MACC.
13. FEES AND EXPENSES
Each party shall bear all expenses incidental to the performance of its
duties and obligations under this Agency Trading Agreement. Each Fund
shall pay the cost of registration of its Shares with the Securities
and Exchange Commission and in any state where required. The cost of
preparing and printing prospectuses, proxy materials, periodic Fund
reports and other similar materials that are required by law to be sent
to shareholders generally shall be paid by the applicable Fund, and the
cost of distributing
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such items to Plan Participants or Plan Representatives shall be borne
by MACC, the Plans or Plan Representatives, as the case may be.
Denver Investment Advisors LLC agrees to pay MACC the Shareholder
Servicing Fees listed below based on the average daily net asset value
of Plan assets invested in each fund payable quarterly in arrears. The
parties agree that the Funds and the other Fund Affiliates are not
obligated to pay fees hereunder.
Fund Shareholder Servicing Fee
---- -------------------------
Westcore Blue Chip Fund 30 basis points
Westcore Growth and Income Fund 30 basis points
Westcore MIDCO Growth Fund 30 basis points
Westcore Mid-Cap Opportunity Fund 30 basis points
Westcore Small-Cap Opportunity Fund 25 basis points
Westcore Intermediate-Term Bond Fund 20 basis points
Westcore Long-Term Bond Fund 20 basis points
14. TERMINATION OF AGREEMENT
This Agency Trading Agreement may be terminated at any time by any
party hereto upon thirty (30) days' prior written notice to the other
party hereto or upon such shorter notice as is required by law, order
or regulatory or self-regulatory authority with jurisdiction over the
terminating party or at such time as the parties hereto may agree to in
writing. Notwithstanding the foregoing, this Agency Trading Agreement
may be terminated immediately either (i) upon a material breach by any
party hereto not cured within thirty (30) days
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after notice from another party hereto or (ii) with respect to a Plan,
upon the termination of services by MACC to any such Plan. The
provisions of Section 12 shall survive any termination of this Agency
Trading Agreement.
15. NOTICE
Each notice required by this Agency Trading Agreement shall be given in
writing and delivered personally or mailed by certified mail or courier
service, or sent through electronic or telephonic facilities, to the
intended recipient thereof at the following address or such other
address as one party may give written notice to the other party:
If to MACC, to: Mid-Atlantic Capital Corporation
000 0xx Xxxxxx
The Times Building
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
If to the Fund Company, to: Westcore Funds
000 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
A notice given in accordance with this Section 15 shall be deemed given
upon actual receipt by the intended recipient thereof.
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16. CONFIDENTIALITY
Except as otherwise provided under this Agency Trading Agreement, all
notifications, reports, books, records, data and other information
supplied by one party to the other in connection with this Agency
Trading Agreement (collectively, "Information") shall remain the
property of the party supplying such information and, except at
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.
MACC and the Fund Company and Fund Affiliates 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. MACC and the Fund Company and Fund
Affiliates agree to use their best efforts (the same being not less
that 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 MACC nor the Fund
Company and Fund Affiliates 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 of each party (or their respective
affiliates) on a need-to-know basis. Notwithstanding anything in this
Agency Trading 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
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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).
17. COMPLETE AGREEMENT
This Agency Trading Agreement contains the full and complete
understanding of the parties with respect to the subject matter hereof
and supersedes all prior representations, promises, statements,
arrangements, agreements, warranties and understandings among the
parties with respect to the subject matter hereof, whether oral or
written, express or implied.
18. MODIFICATION AND WAIVER
This Agency Trading Agreement may be modified or amended, and its terms
may be waived, only by a writing signed by each of the parties hereto;
provided, however, Schedule I hereto may be amended in writing, without
the need for signatures of the parties hereto, by the fund Company's
delivery of an amended Schedule I to MACC at least thirty (30) days in
advance of the effective date of any such amended Schedule 1, provided
that this Agreement shall immediately cease to apply with respect to
any Fund at such time as shares of such Fund are no longer offered to
the public (except that this Agreement shall continue to apply with
respect to accounts in such Fund created, and to purchases and
redemptions of such Fund made prior to cessation of public offering).
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Any valid waiver of a provision set forth herein shall not constitute a
waiver of any other provision of this Agency Trading Agreement. In
addition, any such waiver shall constitute a present waiver of such
provision only and shall not constitute a permanent, future waiver of
such provision.
19. COUNTERPARTS
This Agency Trading 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.
20. ASSIGNMENT
This Agency Trading Agreement shall not be assigned by a party hereto
without the prior written consent of the other parties hereto except
that the Agreement may be assigned to a successor Fund Affiliate for
the Funds, or any of them, if one is appointed without the consent of
the other parties hereto.
21. HEADINGS
The headings of this Agency Trading Agreement are for reference only
and shall not otherwise affect the interpretation or construction
hereof.
22. NON-EXCLUSIVITY
Each of the parties hereto acknowledges and agrees that this Agency
Trading Agreement and the arrangement described herein are intended to
be non-exclusive and that each of the parties is free to enter into
similar agreements and arrangements with other entities. MACC further
acknowledges that nothing contained herein shall prohibit the Fund
Company or any affiliate of either from providing administrative,
sub-accounting, trustee, recordkeeping or similar or related services
to any employee benefit plan (including a Plan)
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or from soliciting any such plan or sponsor thereof to enter into any
arrangement with the Fund Company or any affiliate of either for such
service.
23. GOVERNING LAW
This Agency Trading Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts, without
giving effect to the principles of conflicts of law thereof.
24. 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 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.
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IN WITNESS WHEREOF, the undersigned have executed this Agency Trading
Agreement by their duly authorized officers as of the date first
written above.
By: WESTCORE TRUST
Name: /s/ Xxxx X. Xxxxxxxxx
----------------------
Title: Vice-President
----------------------
By: DENVER INVESTMENT ADVISORS LLC
Name: /s/ Xxxx X. Xxxxx
----------------------
Title: Vice Pres.
----------------------
By: ALPS MUTUAL FUNDS SERVICES, INC.
Name: /s/ Xxxxxx X. Xxxxxx
----------------------
Title: CFO
----------------------
By: BOSTON FINANCIAL DATA SERVICES, INC.
Name: /s/ Xxxxxxxx Xxxxxxxxxx
----------------------
Title: CSO
----------------------
By: MID-ATLANTIC CAPITAL CORPORATION
Name: /s/ Xxxxxx Banco
----------------------
Title: V.P.
----------------------
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SCHEDULE I
TO AGENCY TRADING AGREEMENT
Fund Cusip
---- -----
Westcore Blue Chip Fund* 957904881
Westcore Growth and Income Fund* 957904667
Westcore Intermediate-Term Bond Fund* 957904675
Westcore Long-Term Bond Fund* 957904709
Westcore Mid-Cap Opportunity Fund* 957904584
Westcore MIDCO Growth Fund* 957904717
Westcore Small-Cap Opportunity Fund* 957904618
*Indicates that Fund is a "no-load" or "no sales charge" Fund as defined in
Section 26 of the NASD's Rules of Fair Practice.
