AGENCY TRADING AGREEMENT
This Agreement is made and entered into this 15th day of July, 1997 by and
between Financial Administrative Services Corporation ("FASCorp"), a
Colorado corporation having its principal office and place of business at
0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, 00000 and Westcore Trust, a
Massachusetts Business Trust having its principal office and place of
business at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 ("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 I, as
amended from time to time (such series or classes being referred to as the
"Fund(s)"), and ALPS Mutual Funds Services, Inc. ("ALPS") a Colorado
Corporation having its principal office and place of business at 000 00xx
Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxx, 00000 and Boston Financial Data
Services, Inc. ("BFDS") a Massachusetts Corporation having its principal
office and place of business at Xxx Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx,
00000. Fund Company and ALPS and BFDS are collectively referred to herein
as "Fund Company and Fund Affiliates".
WHEREAS ALPS is the co-administrator for the Funds, the
principal underwriter or distributor for the Funds and the bookkeeping and
pricing agent for the Funds;
WHEREAS BFDS performs transfer agency functions for the Funds;
WHEREAS FASCorp, a third party administrative company, has contractually
agreed to provide participant recordkeeping and other administrative
services to certain tax qualified employee benefit plans and tax-exempt
trusts in which plan assets are held (individually, the "Plan" and
collectively, the "Plans");
WHEREAS the Fund Company and Fund Affiliates wish to have FASCorp perform
certain recordkeeping, shareholder communication, and other services for
each Fund;
WHEREAS, the Fund Company desires to have FASCorp serve as the Fund
Company's limited agent to receive and transmit orders and instructions and
otherwise facilitate the purchase, exchange and redemption 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;
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NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties hereto agree as follows.
1. APPOINTMENT OF FASCORP
The Fund Company hereby appoints FASCorp as agent for the limited purpose
of accepting orders and instructions with respect to Shares purchased,
exchanged or redeemed by the Plans. FASCorp hereto accepts its appointment
on the terms and conditions set forth herein.
2. PRICING INFORMATION
ALPS will furnish, or cause to be furnished, to FASCorp 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). ALPS shall use reasonable efforts to provide such
information to FASCorp by 7:00 p.m. Eastern Time ("ET") on the same
Business Day.
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3. ORDERS FOR PURCHASE, REDEMPTION, OR EXCHANGE
FASCorp, as agent of the Fund Company, shall (i) receive from, or on behalf
of, Participants or Plan Representatives 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 of Trading on any such Business Day) orders and instructions for
the purchase, redemption or exchange of Shares held by the Plans, and (ii)
upon receipt of any such orders and instructions, communicate to BFDS and
transmit to BFDS orders and instructions to purchase, exchange or redeem
Shares for specified Accounts. On each business day, FASCorp shall
aggregate and calculate the net purchase and redemption amounts for such
orders for each Account and communicate such net aggregate amounts to BFDS
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
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.
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4. SETTLEMENT
(a) Purchases. FASCorp or its affiliates will transmit the purchase price of
each purchase order to BFDS in accordance with written instructions
provided by the Fund Company to FASCorp for the applicable Fund by wire
transfer prior to 1:00 p.m. ET, on the next Business Day following the
Trade Date. FASCorp agrees that if it fails to (i) wire the purchase price
to BFDS before such 1:00 p.m. ET deadline or (ii) provide BFDS with a
Federal Funds wire system reference number evidencing the wire transfer of
the purchase price to BFDS prior to such 1:00 p.m. ET deadline, it will
indemnify and hold harmless the Fund Company and BFDS 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 FASCorp.
(b) Redemptions. BFDS will use its best efforts to transmit to FASCorp the
proceeds of all redemption orders placed by FASCorp 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, Fund
Company will contact FASCorp 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
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indicate, on the Fed Funds wire system, the 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, BFDS shall,
on the day the wire is sent, fax such entries to FASCorp or if possible,
send via direct or indirect systems access.
Redemption wires should be sent to:
ABA #
Credit to #
For Further Credit to Account Number
Fax supplements should be sent to:
5. PARTICIPANT RECORDKEEPING
Recordkeeping and other administrative services to a Plan and Plan
Participants shall be the responsibility of FASCorp and shall not be the
responsibility of BFDS. BFDS will recognize, as determined by FASCorp,
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, BFDS will not
maintain separate accounts for Plan Participants.
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6. FUND INFORMATION
FASCorp will perform a trade reconciliation to ensure that Plan and Account
assets are in balance. FASCorp shall notify BFDS of any differences
between the Plan and/or Participant balances maintained by FASCorp and the
Account(s) balances maintained by the Fund Company within two (2) Business
Days of receipt of the Fund Company's confirmation. FASCorp and BFDS shall
determine and take, to the extent applicable, appropriate corrective
actions with respect to any such differences. ALPS will notify FASCorp via
facsimile or telephonic communication facilities of the record date, the
ex-date along with reinvest price and payable date of all Fund
distributions (dividends and capital gains).
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7. PROSPECTUS, PROXIES AND RELATED MATERIALS
ALPS 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 FASCorp shall
reasonably request. FASCorp hereby expressly acknowledges that FASCorp,
and not ALPS, shall be responsible for the delivery of any such
prospectuses, reports and materials to Plan Participants or Plan
Representatives, as the case may be. FASCorp shall promptly deliver any
such prospectuses, reports and materials to Plan Participants or Plan
Representatives, as the case may be after delivery thereof by ALPS.
FASCorp will tabulate votes of Plan Shares remitted by the Plan
Participants or the Plan Representative, as the case may be. FASCorp will
then forward these voting instructions to the Fund Company as directed by
the Plan. FASCorp, in its capacity as agent hereunder (and its agents),
shall not in any way recommend action in connection with, or interfere with
the solicitation of, such proxy votes.
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.
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Except as otherwise provided hereunder, FASCorp 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 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 and under applicable law, regulation and administrative
rule or procedure.
To the extent required under the 1940 Act, and the rules thereunder,
FASCorp 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 FASCorp, FASCorp shall make
available during normal business hours such of FASCorp's facilities and
premises employed in connection with the performance of FASCorp's duties
and responsibilities under this 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
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evaluate the quality of the duties and responsibilities performed by
FASCorp pursuant hereto. Any costs associated with such visitation,
inspection or audit will be borne by the Fund Company.
This Section 8 shall survive termination of this Agreement.
9. COMPLIANCE WITH LAWS
At all times the Fund Company and Fund Affiliates and FASCorp shall comply
with all laws, rules and regulations, to the extent applicable, by virtue
of entering into this Agreement or otherwise.
10. REPRESENTATIONS WITH RESPECT TO THE FUNDS
FASCorp shall not make, nor shall it allow its affiliates to make
representations concerning a Fund or Shares, except those contained in (i)
the then current prospectus of a Fund, (11) current sales literature
created by or on behalf of the Funds, or (iii) current sales literature
created by FASCorp 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 FASCorp, its affiliates or agents.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS
FASCorp represents, warrants, and covenants that:
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(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 Agreement, and that by doing so it will not breach or
other wise impair any other agreement or understanding with any other
person, corporation or other entity; this 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
Agreement;
(b) it will timely disclose to Plan Representatives or Plan Participants,
as the case may be, the arrangement provided for in this Agreement;
(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 FASCorp to so register, if not exempt
from registration, will constitute a material breach of this Agreement 30
days after the effective date of this Agreement or such earlier date on
which such failure constitutes violation of applicable law or regulation);
if required under applicable regulations, FASCorp will amend its TA-1 to
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disclose its appointment hereunder as a limited purpose recordkeeping agent
to the Fund Company;
(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 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 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 FASCorp directly or indirectly relating to
the purchase, exchange or redemption of the Funds has been reviewed by
legal counsel to FASCorp 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
(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 Agreement or there is a
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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 jointly 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 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;
(b) all purchases, exchanges and redemptions of Fund shares contemplated
by this 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 FASCorp in the event that it is unable, for
any reason, to perform any of its duties or obligations under this
Agreement or there is a material failure to comply with 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
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under the Securities Act of 1933, as amended.
12. INDEMNIFICATION
(a) FASCorp 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 or act of intentional
misconduct by FASCorp or its agents relating to this 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 FASCorp and the Account(s) balances maintained by the Fund
Company (or its affiliates) due to errors caused by FASCorp.
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(b) Each of Fund Company and each Fund Affiliate, as to itself only, shall
indemnify and hold harmless FASCorp, its affiliates, 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) its own or
its agents' actual negligent act or omission or act of intentional
misconduct relating to this Agreement or the services rendered hereunder,
or (ii) any material breach of any of its own representations, warranties
and covenants made hereunder, or (iii) discrepancies between Participant
and Plan balances maintained by FASCorp and the Account(s) balances
maintained by the Fund Company (or its affiliates) due to errors caused by
the Fund Company (or its affiliates).
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13. FEES AND EXPENSES
Each party shall bear all expenses incidental to the performance of its
duties and obligations under this 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 law to be sent to shareholders generally shall
be paid by the applicable Fund, and the cost of distributing such items to
Plan Participants or Plan Representatives shall be borne by FASCorp, the
Plans or Plan Representatives, as the case may be. FASCorp shall not be
entitled to any fee from the Fund Company pursuant to this Agreement.
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14. TERMINATION OF AGREEMENT
This 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 Agreement may be terminated immediately
either (i) upon a material breach by any party hereto not cured within
thirty (30) days after notice from another party hereto, or (ii) with
respect to a Plan, upon the termination of services by FASCorp to any such
Plan. The provisions of Section 12 shall survive any termination of this
Agreement.
15. NOTICE
Each notice required by this 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 FASCorp, to:
If to the Fund Company, to: 000 00xx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000-0000
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If to ALPS, to: Attn: Westcore Funds, 000 00xx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000-0000
If to BFDS, to: Attn: Westcore Funds, Xxx Xxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx, 00000
A notice given in accordance with this Section 15 shall be deemed given upon
actual receipt by the intended recipient thereof.
16. CONFIDENTIALITY
Except as otherwise provided under this Agreement, all notifications,
reports, books, records, data and other information supplied by one party
to the other in connection with this 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 policies of a party.
FASCorp 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
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party and its affiliates. Each of FASCorp, the Fund Company and Fund
Affiliate agree to use its best efforts (the same being not less than 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 FASCorp nor the Fund Company or any Fund Affiliate
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 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 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).
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17. COMPLETE AGREEMENT
This 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 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,
Exhibit A hereto may be amended in writing, without the need for signatures
of the parties hereto, by the fund Company's delivery of an amended Exhibit
A to FASCorp at least thirty (30) days in advance of the effective date of
any such amended Exhibit A, 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).
Any valid waiver of a provision set forth herein shall not constitute a
waiver of any other provision of this Agreement. In addition, any such
waiver shall constitute a
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present waiver of such provision only and shall not constitute a permanent,
future waiver of such provision.
19. COUNTERPARTS
This 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 Agreement shall not be assigned by a party hereto without the prior
written consent of the other parties hereto.
21. HEADINGS
The headings of this Agreement are for reference only and shall not
otherwise affect the interpretation or construction hereof.
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22. NON-EXCLUSIVITY
Each of the parties hereto acknowledges and agrees that this 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. FASCorp 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) 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 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.
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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.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their duly
authorized officers as of the date first written above.
By: Westcore Trust
Name: /s/ Xxxxxx Xxxxxx
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Title: Treasurer
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By: ALPS Mutual Funds Services, Inc.
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Name: /s/ Xxxxx X. Xxxxx
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Title: General Counsel
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By: Boston Financial Data Services, Inc.
Name: /s/ Xxxx Xxx XxXxxx
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Title: Operations Group Manager
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By: FASCorp
Name: /s/ Xxxxx Xxxxxxx
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Title: Assistant Vice President
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