INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is entered into as of
August 1, 1997 between Denver Investment Advisors LLC, a Colorado limited
liability company ("DIA"), and Westcore Trust, a Massachusetts business trust
(the "Trust").
R E C I T A L S
WHEREAS, DIA desires the Board of Trustees of the Trust to consider the
Trust's use of the DST FAN (as defined below); and
WHEREAS, the Board of Trustees of the Trust desires that DIA provide the
Trust with written indemnification of existing and future claims arising out of
use of the DST FAN.
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, the terms used in this
Agreement shall have the meanings assigned to such terms in this Section 1.
"CLAIMS" means any and all actions, suits, claims, rights, causes of
action, demands, damages, losses, liabilities, expenses, costs, attorneys' fees
or charges of whatever kind or nature, whether contingent or fixed, whether
known or unknown, whether suspected or unsuspected, which any person (i) now has
or claims to have, (ii) at any time had or claimed to have, or (iii) at any time
hereafter may have or claim to have.
"DAMAGES" means any and all costs, liabilities, obligations, losses,
claims, expenses, damages or judgments of any kind, including reasonable
attorneys' fees and the fees of accountants and experts.
"DST FAN" means the computer and software system, or "financial access
network," made available by DST Systems, Inc., a Delaware corporation, which
provides an interface between the Internet and public data network service
providers and the Trust's transfer agent for purposes which may include
communicating shareholder data and/or transaction requests.
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"INDEMNIFIED PARTIES" means, collectively, (i) the Trust; (ii) each
current, former and future officer, trustee, beneficial interest holder,
employee, agent, attorney, predecessor, successor, representative or affiliate
of the Trust, but not DIA or any of DIA's current, former and future officers,
trustees, beneficial interest holders, employees, agents, attorneys,
predecessors, successors or representatives; (iii) any successor, assign, heir,
estate or legal representative of any of the parties described in clauses (i) or
(ii); and (iv) any series or portfolio of the Trust.
2. INDEMNIFICATION.
(a) DIA shall defend, indemnify and hold harmless each Indemnified
Party from and against all Damages arising out of or resulting from any Claims
against such Indemnified Party related to or arising out of the use of the DST
FAN by DIA, the Trust, the Trust's shareholders or transfer agent at any time
(including prior to and on and after the date of execution hereof and of any
written agreement, if any, with DST Systems, Inc.).
(b) If any Indemnified Party receives notice of the assertion of any
Claim with respect to which DIA is or may be obligated to provide
indemnification (an "Indemnifiable Claim"), the Indemnified Party shall promptly
notify DIA in writing (the "Claim Notice") of the Indemnifiable Claim; provided,
however, that the failure to provide such notice shall not relieve or otherwise
affect the obligation of DIA to provide indemnification hereunder, except to the
extent that any Damages directly resulted or were caused by such failure.
(c) DIA shall have thirty (30) days after receipt of the Claim Notice
to undertake, conduct and control, through counsel of its own choosing (subject
to the consent of the Indemnified Party, which consent shall not be unreasonably
withheld), and at its expense, the settlement or defense thereof, and the
Indemnified Party shall cooperate with DIA in connection therewith; provided,
however, that (i) DIA shall permit the Indemnified Party to participate in such
settlement or defense through separate counsel chosen by the Indemnified Party
(subject to the consent of DIA, which consent shall not be unreasonably
withheld), provided that the fees and expenses of such counsel shall not be
borne by DIA unless one of the following conditions shall exist: (x) DIA shall
have failed to assume the defense of such claim or employ counsel reasonably
satisfactory to the Indemnified Party, or (y) there exists or will exist a
conflict of interest between the Indemnified Party and DIA which would make it
inappropriate in the reasonable judgment of DIA and the Indemnified Party for
the same counsel to represent both DIA and the Indemnified Party and (ii) DIA,
in defense of any action assumed by it, shall not, without the consent of the
Indemnified Party, which shall not be unreasonably withheld, consent to entry
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of any judgment 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. The Indemnified Party shall not pay or settle any Indemnifiable Claim
without DIA's consent, which shall not be unreasonably withheld. To the extent
that a party is the losing party in litigation regarding the reasonableness of
the withholding of a consent, that party shall bear the legal fees and expenses
of the other party to the litigation.
(d) If DIA does not notify the Indemnified Party within thirty (30)
days after receipt of the Claim Notice that it elects to undertake the defense
of the Indemnifiable Claim described therein, the Indemnified Party shall have
the right to contest, settle or compromise the Indemnifiable Claim in the
exercise of its reasonable discretion; provided, however, that the Indemnified
Party shall notify DIA of any compromise or settlement of any such Indemnifiable
Claim.
3. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
replaces all prior negotiations and agreements, written or oral.
4. AMENDMENT AND WAIVER. This Agreement may be amended, modified,
superseded, canceled, renewed or extended and the terms or covenants hereof may
be waived only by a written instrument executed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. The failure of any party at
any time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No waiver by any
party of the breach of any term or provision contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this Agreement.
5. NOTICES. All notices and other communications provided for hereunder
shall be in writing and shall be given by personal delivery, overnight air
courier (with signed receipt of acknowledgement) or by telecopy (with
"answerback" confirmation of receipt), addressed to the parties at their
respective addresses set forth on the signature page hereto, or at such other
address as shall be designated by either party in a written notice to the other
party. All such notices and other communications shall be deemed to have been
delivered upon receipt.
6. MASSACHUSETTS BUSINESS TRUST. The names "Westcore Trust" and "Trustees
of Westcore Trust" refer respectively to the
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Trust created and the Trustees, as trustees but not individually or personally,
acting from time to time under the Amended and Restated Declaration of Trust
dated November 19, 1987 as amended July 16, 1990 and as may be further amended
from time to time 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 the
State 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 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 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.
7. MISCELLANEOUS.
(e) This Agreement shall be binding upon each of the undersigned and
its representatives and assigns and shall inure to the benefit of (and may be
enforced by) each Indemnified Party.
(f) In the event any Indemnified Party seeks to enforce his, her or
its rights hereunder, such Indemnified Party shall be entitled to recover all
reasonable fees and costs incurred in connection therewith, including reasonable
attorneys' fees.
(g) This Agreement shall in all respects be governed under the
internal laws (and not the laws of conflicts) of the State of Colorado.
(h) If any provision of this Agreement is held to be illegal or
invalid by a court of competent jurisdiction, such provision shall be severed
and deleted, and neither such provision nor its severance and deletion shall
effect the validity of the remaining provisions hereof.
(i) This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which counterparts shall
together constitute a single agreement.
(j) The section headings of this Agreement are inserted for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
(k) This Agreement shall continue from the day first above written
until the expiration of all applicable statutes of limitations for any Claims.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
Denver Investment Advisors LLC
By: /s/ Xxxxxxx X. Xxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxx
Its: President
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Title
Address for Notices:
Denver Investment Advisors LLC
0000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
Westcore Trust
By: /s/ Xxxx X. Xxxxxxxxx
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Print Name: Xxxx X. Xxxxxxxxx
Its: Vice President
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Title
Address for Notices:
Westcore Trust
c/o ALPS Mutual Funds Services Inc.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Drinker Xxxxxx and Xxxxx LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000-0000
Attention: W. Xxxxx XxXxxxxx
Telecopy: (000) 000-0000
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