Exhibit (h)(6)
AGENCY TRADING AGREEMENT
This Agreement is made as of July 15, 2002, between Xxxxxxx & Company, 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 I, as amended from time to time (such series or classes being
referred to as the "Fund(s)"), and Denver Investment Advisors LLC ("DIA"), the
investment adviser and co-administrator for the Funds. 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 Company wish to have Xxxxxxx & Company perform certain
recordkeeping, shareholder communication, and other services for each Fund.
Recital
WHEREAS, Xxxxxxx & Company acts as agent of the trustee or custodian of certain
tax-qualified employee benefit plans and tax-exempt trusts in which plan assets
are held (individually, the "Plan", and collectively, the "Plans"), and invests
and reinvests Plan assets as directed by one or more investment advisors, a Plan
sponsor or an administrative committee, as the case may be, of each Plan (a
"Plan Representative"), or upon the direction of Plan participants
("Participants");
WHEREAS, Xxxxxxx & Company provides certain recordkeeping and other services for
the Plans, including processing of orders and instructions for the investment
and reinvestment of Plan assets in each Plan's investment options;
WHEREAS, Xxxxxxx & Company 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 in each Fund (individually, an
"Account" and collectively, the "Accounts"), subject to the terms and conditions
of this Agreement; and
WHEREAS, the Fund Company desires Xxxxxxx & Company 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 XXXXXXX & COMPANY
The Fund Company hereby appoints Xxxxxxx & Company as agent for the limited
purpose of accepting orders and instructions with respect to Shares
purchased, exchanged or redeemed by the Plans. Xxxxxxx & Company hereby
accepts its appointment on the terms and conditions set forth herein.
2. PRICING INFORMATION
The Fund Company will furnish, or caused to be furnished, to Xxxxxxx &
Company 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 Xxxxxxx & Company by 7:00
p.m. Eastern Time ("ET") on the same Business Day.
3. ORDERS FOR PURCHASE, REDEMPTION, OR EXCHANGE
Xxxxxxx & Company, 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
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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 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, Xxxxxxx & Company
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 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. Xxxxxxx & Company will transmit the purchase price of each
purchase order to the Fund Company in accordance with written instructions
provided by the Fund Company to Xxxxxxx & Company for the applicable Fund
by wire transfer prior to 1:00 p.m. ET, on the next Business Day following
the Trade Date. Xxxxxxx & Company 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
Xxxxxxx & Company.
(b) Redemptions. The Fund Company will use its best efforts to transmit to
Xxxxxxx & Company the proceeds of all redemption orders placed by Xxxxxxx &
Company 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 Xxxxxxx & Company
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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
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 Xxxxxxx & Company or if possible, send via direct or
indirect systems access.
Redemption wires should be sent to:
Xxxxx Fargo Bank N.A.
ABA # 000000000
FBO Xxxxxxx & Company
Credit to A/C # 4159608181
All wires must include client name and Xxxxxxx & Company account number
Fax supplements should be sent to: 000-000-0000
5. PARTICIPANT RECORDKEEPING
Recordkeeping and other administrative services to a Plan and Plan
Participants shall be the responsibility of Xxxxxxx & Company and shall not
be the responsibility of the Fund Company. The Fund Company will recognize,
as determined by Xxxxxxx & Company, 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
Xxxxxxx & Company will perform a trade reconciliation to ensure that Plan
and Account assets are in balance. Xxxxxxx & Company shall notify the Fund
Company of any differences between the Plan and/or Participant balances
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maintained by Xxxxxxx & Company and the Account(s) balances maintained by
the Fund Company within two (2) Business Days of receipt of the Fund
Company's confirmation. Xxxxxxx & Company 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 Xxxxxxx & Company, the Fund Company will notify Xxxxxxx & Company 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 Xxxxxxx &
Company shall reasonably request. Xxxxxxx & Company hereby expressly
acknowledges that Xxxxxxx & Company, 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.
Xxxxxxx & Company 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.
Xxxxxxx & Company will vote Plan Shares as directed by Plan Participants or
Plan Representatives, as the case may be. Xxxxxxx & Company, in its
capacity as Service Provider 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. Except as otherwise provided hereunder, Xxxxxxx & Company
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
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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.
To the extent required under the 1940 Act, and the rules thereunder,
Xxxxxxx & Company 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 Xxxxxxx & Company, Xxxxxxx &
Company shall make available during normal business hours such of Xxxxxxx &
Company's facilities and premises employed in connection with the
performance of Xxxxxxx & Company'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 Xxxxxxx &
Company pursuant hereto.
This Section 8 shall survive termination of this Agreement.
9. COMPLIANCE WITH LAWS
At all times the Fund Company and Xxxxxxx & Company shall comply with all
laws, rules and regulations, to the extent applicable, by virtue of
entering into this Agency Trading Agreement or otherwise.
10. REPRESENTATIONS WITH RESPECT TO THE FUNDS
Xxxxxxx & Company shall not make, nor shall it allow its affiliates to make
representations concerning a Fund or Shares, except those contained within
(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 Xxxxxxx & Company which has been submitted to, and approved in
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writing, by the Funds or their agents prior to the use or distribution of
such sales literature by Xxxxxxx & Company, its affiliates or agents.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS
Xxxxxxx & Company 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;
(c) it or an affiliate is registered as a transfer agent pursuant to
Section 17A of the Securities and Exchange Act of 1934, as amended (the
"1934 Act")
(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 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 Xxxxxxx & Company directly or indirectly
relating to the purchase, exchange or redemption of the Funds has been
reviewed by legal counsel to Xxxxxxx & Company 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
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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 Agency Trading Agreement or there is a material failure to comply with
the representation made herein above.
The Fund Parties represent, warrant, and covenant 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 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 Xxxxxxx & 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
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
(a) Xxxxxxx & Company agrees to indemnify and hold harmless the Fund
Parties and each of their trustees, officers, members, shareholders,
employees, agents and each person, if any, who controls them within
the meaning of the Securities Act against losses, claims, damages,
liabilities or expenses to which any one of them may become subject
insofar as those losses, claims, damages, liabilities or expenses or
actions in respect thereof, arising out of or are based upon (i)
Xxxxxxx & Company's negligence, bad faith, or willful misconduct in
performing its obligations hereunder, (ii) any breach by Xxxxxxx &
Company of any material provision of this Agreement, or (iii) any
breach by Xxxxxxx & Company of a representation, warranty or covenant
made in this Agreement; and Xxxxxxx & Company will reimburse the
persons indemnified hereunder for any legal or other expenses
reasonably incurred, as incurred, by them in connection with
investigating or defending such loss, claim or action. This indemnity
agreement shall be in addition to any liability which Xxxxxxx &
Company may otherwise have.
(b) Each Fund Party agrees to indemnify and hold harmless Xxxxxxx &
Company and each of its directors, officers, employees, agents and
each person, if any, who controls them within the meaning of the
Securities Act against losses, claims, damages, liabilities or
expenses to which any one of them may become subject insofar as those
losses, claims, damages, liabilities or expenses or actions in respect
thereof, arising out of or are based upon (i) such Fund Party's
negligence, bad faith, or willful misconduct in performing its
obligations hereunder, (ii) any breach by such Fund Party of any
material provision of this Agreement, or (iii) any breach by such Fund
Party of a representation, warranty or covenant made in this
Agreement; and such Fund Party will reimburse the persons indemnified
hereunder for any legal or other expenses reasonably incurred, as
incurred, by them in connection with investigating or defending such
loss, claim or action. This indemnity agreement shall be in addition
to any liability which such Fund Party may otherwise have.
(c) If any third party threatens to commence or commences any action for
which one party (the "Indemnifying Party") may be required to
indemnify another person hereunder (the "Indemnified Party"), the
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Indemnified Party shall promptly give notice thereof to the
Indemnifying Party. The Indemnifying Party shall be entitled, at its
own expense and without limiting its obligations to indemnify the
Indemnified Party, to assume control of the defense of such action
with counsel selected by the Indemnifying Party, which counsel shall
be reasonably satisfactory to the Indemnified Party. If the
Indemnifying Party assumes the control of the defense, the Indemnified
Party may participate in the defense of such claim at its own expense.
In the event the Indemnifying Party, after notification by the
Indemnified Party of the commencement of an action, does not elect to
assume the defense of any such action, the Indemnifying Party will
reimburse the Indemnified Party(ies) named a defendant or defendants
in such action for the fees and expenses of one single counsel agreed
upon by them. In any event, the Indemnifying Party shall not be
responsible for any claim settled or compromised, or for any
confession of judgment, without its prior written consent, which
consent shall not be unreasonably withheld.
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 such items to Plan Participants or Plan Representatives shall
be borne by Xxxxxxx & Company, the Plans or Plan Representatives, as the
case may be.
Denver Investment Advisors LLC agrees to pay Xxxxxxx & Company 0.25% of the
average daily net asset value of Plan assets invested in the Funds, payable
quarterly in arrears. The parties agree that the Funds are not obligated to
pay fees hereunder.
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13. 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 after notice from another party hereto or (ii) with
respect to a Plan, upon the termination of services by Xxxxxxx & Company to
any such Plan. The provisions of Section 12 shall survive any termination
of this Agency Trading Agreement.
14. 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 Xxxxxxx & Company, to:
Xxxxxxx & Company
000 X. X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
If to the Fund Company, to:
Westcore Funds
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
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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15. 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.
Xxxxxxx & Company and the Fund Parties 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.
Xxxxxxx & Company and the Fund Parties 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 Xxxxxxx & Company nor the
Fund Parties 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 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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16. 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.
17. 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 Xxxxxxx & Company at least thirty (30) days in
advance of the effective date of any such amended Schedule I, 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 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.
18. 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.
19. ASSIGNMENT
This Agency Trading Agreement shall not be assigned by a party hereto
without the prior written consent of the other parties hereto.
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20. HEADINGS
The headings of this Agency Trading Agreement are for reference only and
shall not otherwise affect the interpretation or construction hereof.
21. 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. Xxxxxxx & Company 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.
22. 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.
23. 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/ Xxxxxxx X. Xxxxx
--------------------------------
Title: Executive Manager
-------------------------------
Xxxxxxx & Company
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: Vice President
-------------------------------
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SCHEDULE I
TO AGENCY TRADING AGREEMENT
FUND
----
Westcore MIDCO Growth Fund*
Westcore Growth and Income Fund*
Westcore Small-Cap Growth Fund*
Westcore Select Fund*
Westcore International Frontier Fund*
Westcore Blue Chip Fund*
Westcore Mid-Cap Opportunity Fund*
Westcore Small-Cap Opportunity Fund*
Westcore Flexible Income Fund*
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*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.
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