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EXHIBIT (h)(1)(v)
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
THE AGREEMENT made as of October 1, 2000 by and between
WESTCORE TRUST, a Massachusetts business trust (the "Trust"), Denver Investment
Advisors LLC ("DIA"), a Colorado limited liability company having its principle
office at 0000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxx 00000, and ALPS
Mutual Funds Services, Inc. ("ALPS"), a Colorado corporation having its
principal office at 370 Seventeenth Street, Suite 3100, Xxxxxx, Xxxxxxxx 00000
(XXX and ALPS being referred to herein collectively, as the "Administrators").
WITNESSETH:
WHEREAS, the Trust is registered as an open-end, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, pursuant to that certain Administration Agreement,
dated as of October 1, 1995 (the "Former Administration Agreement"), among the
Trust, DIA and ALPS, as amended by Amendment No. 1, dated September 30, 1998,
Amendment No. 2, dated October 1, 1999, Amendment No. 3, dated October 1, 1999,
and Amendment No. 4, dated December 15, 1999 (collectively, the "Amendments"),
the Trust has retained the Administrators to provide, as co-administrators,
certain administration services with respect to the Trust's Colorado Tax-Exempt
Fund, Plus Bond Fund (formerly known as the Intermediate-Term Bond Fund),
Flexible Income Fund (formerly known as the Long-Term Bond Fund), Growth and
Income Fund (formerly known as the Equity Income Fund), MIDCO Growth Fund, Blue
Chip Fund (formerly known as the Modern Value Equity Fund), Small-Cap
Opportunity Fund, Cash Reserve Fund, Mid-Cap Opportunity Fund, Small-Cap Growth
Fund, Select Fund and International Frontier Fund (together with the New Fund
(as hereinafter defined), collectively, the "Funds");
WHEREAS, the Trust and the Administrators desire to amend and
restate the Former Administration Agreement in order to reflect the Former
Administration Agreement and all of the Amendments in a single document; and
WHEREAS, the Trust also desires to employ DIA and ALPS as
co-administrators for the Trust's International Select Fund (the "New Fund"), on
the terms and for the compensation set forth herein and DIA and ALPS agree to
provide such services on such terms and for such compensation.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed among the parties hereto as follows:
1. Appointment. The Trust hereby appoints the Administrators
jointly and severally to provide administration services to the Funds for the
period and on the terms set forth in this Agreement. The Administrators accept
such appointment and agree to furnish the services herein set forth in return
for the compensation as provided in Paragraph 4 of this Agreement. In the event
that the Trust establishes one or more portfolios other than the Funds with
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which it decides to retain the Administrators to act as co-administrators
hereunder, the Trust shall notify the Administrators in writing. If the
Administrators are willing to render such services to a new portfolio, they
shall so notify the Trust in writing whereupon such portfolio shall become a
Fund hereunder and shall be subject to the provisions of this Agreement to the
same extent as the Funds, except to the extent that said provisions (including
those relating to the compensation payable by the Trust) may be modified with
respect to such portfolio in writing by the Trust and the Administrators at the
time of the addition of such new portfolio.
2. Services.
(a) Subject to the direction and control of the Board
of Trustees of the Trust, the Administrators jointly and severally agree to
assist in supervising various aspects of each Fund's administrative operations
including the performance of the following specific services for each Fund: (i)
assist in maintaining office facilities (which may be in the offices of either
of the Administrators or a corporate affiliate but shall be in such location as
the Trust shall reasonably determine); (ii) furnish clerical services and
stationery and office supplies; (iii) compile data for and prepare with respect
to the Funds timely Notices to the Securities and Exchange Commission required
pursuant to Rule 24f-2 under the 1940 Act and Semi-Annual Reports on Form N-SAR;
(iv) coordinate execution and filing by the Trust of all federal and state tax
returns and required tax filings other than those required to be made by the
Trust's custodians and transfer agent; (v) prepare compliance filings pursuant
to state securities laws with the advice of the Trust's counsel; (vi) assist to
the extent requested by the Trust with the Trust's preparation of Annual and
Semi-Annual Reports to Fund shareholders and Registration Statements for the
Funds (on Form N-1A or any replacement therefor); (vii) monitor each Fund's
expense accruals and pay all expenses on proper authorization from each Fund;
(viii) monitor each Fund's status as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as amended from time to time;
(ix) maintain each Fund's fidelity bond as required by the 1940 Act; (x) monitor
compliance with the policies and limitations of each Fund as set forth in the
Trust's most recent Prospectus(es) and Statement(s) of Additional Information
and all amendments and supplements thereto (collectively, the "Prospectus"),
Code of Regulations and Declaration of Trust; and (xi) generally assist in the
Funds' operations.
(b) The Administrators jointly and severally agree to
monitor fund expenses, including but not limited to, fund accounting, and to use
good faith efforts in maintaining such expenses at competitive levels.
In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Administrators hereby agree that all records which they or either
of them maintains for the Funds are the property of the Trust and further agree
to surrender promptly to the Trust any of such records upon the Trust's request.
The Administrators agree to maintain a back-up set of accounts and records of
the Trust (which back-up shall be updated on at least a weekly basis) at a
location other than that where the original accounts and records are stored. The
Administrators shall assist the Trust, the Trust's independent auditors, or,
upon approval of the Trust, any regulatory body, in any requested review of the
Trust's accounts and records, and reports by the Administrators or their
independent accountants concerning their accounting system and internal auditing
controls will be open to such entities for audit or inspection upon reasonable
request. There shall be no additional fee for these services. The Administrators
further agree to preserve
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for the periods prescribed by Rule 31a-2 under the 1940 Act the records required
to be maintained by Rule 31a-1 under the 1940 Act.
In performing their duties as co-administrators of the Trust,
the Administrators (a) will act in accordance with the Trust's Declaration of
Trust, Code of Regulations, Prospectus and the instructions and directions of
the Trust's Board of Trustees and will conform to, and comply with, the
requirements of the 1940 Act and all other applicable Federal or state laws and
regulations, and (b) will consult with outside legal counsel to the Trust, as
necessary or appropriate.
3. Fees; Expenses.
(a) In consideration of services rendered pursuant to
this Agreement, the Trust will pay the Administrators jointly a fee, computed
daily and payable monthly, at the annual rate of 0.30% of the average daily net
assets of each Fund. Net asset value shall be computed in accordance with the
Funds' Prospectus and resolutions of the Trust's Board of Trustees. The fee for
the period from the day of the month this Agreement is entered into until the
end of that month shall be pro-rated according to the proportion which such
period bears to the full monthly period. Upon any termination of this Agreement
before the end of any month, the fee for such part of a month shall be pro-rated
according to the proportion which such period bears to the full monthly period
and shall be payable upon the date of termination of this Agreement. Such fee as
is attributable to each Fund shall be a separate charge to such Fund and shall
be the several (and not joint or joint and several) obligation of each such
Fund.
The Administrators will bear all expenses in connection with
the performance of their services under this Agreement except as otherwise
provided herein. Other expenses to be incurred in the operation of the Funds,
including taxes, interest, brokerage fees and commissions, if any, salaries and
fees of officers and trustees, who are not officers, directors, shareholders,
partners or employees of the Administrators, or the Trust's investment advisor
or distributor for the Funds, Securities and Exchange Commission fees and state
Blue Sky qualification fees, advisory, fund accounting and administration fees,
charges of custodians and transfer agents, certain insurance-premiums, outside
auditing and legal expenses, costs of maintenance of corporate existence,
typesetting and printing of prospectuses for regulatory purposes and for
distribution to current shareholders, costs of shareholder reports and meetings
and any extraordinary expenses, will be borne by the Trust; provided, however,
that the Funds will not bear, directly or indirectly, the cost of any activity
which is primarily intended to result in the distribution of shares of the
Funds.
If in any fiscal year any Fund's aggregate expenses (as
defined under the securities regulations of any state having jurisdiction over
the Fund) exceed the expense limitations of any such state, the Administrators
jointly and severally agree to reimburse such Fund for a portion of any such
excess expense in an amount equal to the proportion that the fees otherwise
payable to the Administrators bear to the total amount of investment advisory
and administration fees otherwise payable by the Fund. The expense reimbursement
obligation of the Administrators is limited to the amount of their fees
hereunder for such fiscal year, provided, however, that notwithstanding the
foregoing, the Administrators shall reimburse such Fund for a portion of any
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such excess expenses in an amount equal to the proportion that the fees
otherwise payable to the Administrators bear to the total amount of investment
advisory and administration fees otherwise payable by the Fund regardless of the
amount of fees paid to the Administrators during such fiscal year to the extent
that the securities regulations of any state having jurisdiction over the Fund
so require. Such expense reimbursement, if any, will be estimated, reconciled
and paid on a monthly basis.
(b) The Trust agrees on behalf of each Fund to
reimburse DIA, up to the amount set forth in the next succeeding sentence, for
DIA's costs ("Costs") of providing sub-accounting and recordkeeping services to
persons who beneficially own shares of the Fund as a result of investing through
omnibus arrangements with a Fund shareholder of record. The amount to be
reimbursed will be computed periodically based on the aggregate value of Fund
shares so beneficially owned ("Beneficial Aggregate Value") and will not exceed
the lesser of (i) the Costs actually borne by DIA or (ii) that amount computed
by determining the actual cost of transfer agency services borne by the Fund
without taking into account the Beneficial Aggregate Value and applying that
percentage to the Beneficial Aggregate Value.
4. Subcontractors and Compensation to Service Providers.
The Administrators may from time to time employ or associate
with themselves such person or persons as the Administrators may believe to be
particularly fitted to assist them in the performance of this Agreement
("subcontractors"). Subcontractors may be officers and employees who are
employed by both the Administrators and the Trust. The compensation of such
sub-contractors shall be paid by the Administrators and no obligation shall be
incurred on behalf of the Trust in such respect. The Administrators shall
provide oversight over any subcontractor(s) who shall in turn provide services
pursuant to an agreement with the Administrators. Any agreement entered into
between the Administrators and a subcontractor shall acknowledge that the
agreement is for the benefit of the Trust, that the subcontractor shall be
directly liable and responsible to the Trust for the performance of its
obligations thereunder, and that the Trust may therefore enforce its rights
directly against the subcontractor. Notwithstanding such delegation, the
Administrators shall continue to be directly liable to the Trust for the
performance of any subcontractor's obligations under such agreement. In addition
to employing subcontractors, the Administrators may compensate parties who
provide shareholder services or other services pursuant to contracts entered
into directly between such parties and the Trust.
5. Proprietary and Confidential Information.
The Administrators agree on behalf of themselves and their
employees to treat confidentiality and as proprietary information of the Trust
all records and other information relative to the Funds and prior, present or
potential shareholders of the Funds (and clients of said shareholders), and not
to use such records and information for any purpose other than performance of
their responsibilities and duties hereunder, except after prior notification to
and approval in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld where the Administrators may be exposed to
civil or criminal contempt proceedings
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for failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust.
6. Limitation of Liability.
The Administrators shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Trust in connection
with matters to which this Agreement relates, except for a loss resulting from
willful misfeasance, bad faith or gross negligence on their part in the
performance of their duties or from reckless disregard by them of their
obligations and duties under this Agreement. Any person, even though also an
officer, partner, employee or agent of either of the Administrators, who may be
or become an officer, director, employee or agent of the Trust, shall be deemed
when rendering services to the Trust or acting on any business of the Trust
(other than services or business in connection with the Administrator's duties
hereunder) to be rendering such services to or acting solely for the Trust and
not as an officer, partner, employee or agent or one under the control or
direction of the Administrators even though paid by either of them. The
Administrators agree that their liability under this Agreement, as set forth
herein, will be joint and several.
7. Reports.
Whenever, in the course of performing their duties under this
Agreement, the Administrators determine, on the basis of information supplied to
the Administrators by the Trust or its authorized agents, that a violation of
applicable law has occurred or that, to their knowledge, a possible violation of
applicable law may have occurred or, with the passage of time, would occur, the
Administrators shall promptly notify the Trust and its counsel.
8. Activities of the Administrators.
The services of the Administrators under this Agreement are
not to be deemed exclusive, and the Administrators shall be free to render
similar services to others so long as their services hereunder are not impaired
thereby.
9. Term.
This Agreement shall become effective as of the date hereof
and unless sooner terminated as provided herein, shall continue until October 1,
2001. Thereafter, this Agreement shall continue automatically with respect to
each Fund for successive annual periods ending September 30 of each year,
provided such continuance is specifically approved at least annually (i) by the
Trust's Board of Trustees or (ii) by a vote of a majority of the outstanding
voting securities of the Fund (as defined in the 1940 Act), and provided further
that in either event such continuance is also approved by a majority of the
Trust's Trustees who are not interested persons (as defined in the 0000 Xxx) of
any party to this Agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval. This Agreement may be terminated without
cause with respect to a Fund and without penalty, by the Trust's Board of
Trustees, by vote of a majority (as defined in the 0000 Xxx) of the outstanding
voting securities of such Fund, or by either Administrator, on not less than
sixty days' notice.
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Upon termination of this Agreement, the Administrators shall
deliver to the Trust or as otherwise directed by the Trust (at the expense of
the Trust, unless such termination is for breach of this Agreement by the
Administrators) all records and other documents made or accumulated in the
performance of their duties or the duties of any subcontractor(s) for the Trust
hereunder.
Effective the date hereof, this Agreement amends and restates
the Former Administration Agreement.
10. Assignment. This Agreement shall extend to and shall be
binding upon the parties hereto and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by the Trust
without the prior written consent of the Administrators, or by the
Administrators without the prior written consent of the Trust; provided further,
that no agreement with any subcontractor(s) contemplated hereunder shall be
entered into, terminated, amended, assigned or permitted to be assigned without
the prior written consent of the Trust.
11. Notices. All notices and other communications hereunder
shall be in writing, shall be deemed to have been given when received or when
sent by telex or facsimile, and shall be given to the following addresses (or
such other addresses as to which notice is given):
To the Administrators:
ALPS Mutual Funds Services, Inc.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: [Xxxx Xxxxxxxx]
Denver Investment Advisors LLC
0000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
To the Fund:
Westcore Trust
c/o W. Xxxxx XxXxxxxx, III, Esq.
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
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12. Other Provisions.
The Trust recognizes that from time to time directors,
officers and employees of either of the Administrators may serve as directors,
officers and employees of other corporations or business trusts (including other
investment companies) and that such other corporations and trusts may include
the name ALPS or DIA as part of their name, and that the Administrators or
either of their affiliates may enter into investment advisory or other
agreements with such other corporations and trusts.
This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, and the 1940 Act and the rules thereunder. To the
extent that the laws of the Commonwealth of Massachusetts conflict with the 1940
Act or such rules, the latter shall control.
No provision of this Agreement may be changed, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, discharge or termination is sought. If
a change or discharge is sought against the Trust, the instrument must be signed
by both Administrators. This Agreement may be executed in one or more
counterparts and all such counterparts will constitute one and the same
instrument.
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 Secretary of State 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.
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If the foregoing is in accordance with your understanding,
will you kindly so indicate by signing and returning to us the enclosed copy
hereof.
Very truly yours,
WESTCORE TRUST
By:
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Name:
Title:
Accepted:
ALPS MUTUAL FUNDS SERVICES, INC.
By:
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Name:
Title:
DENVER INVESTMENT ADVISORS LLC
By:
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Name:
Title:
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