AGENCY TRADING AGREEMENT
This Agreement is made as of _____________, between First American Bank,
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 wishes to have First American Bank perform certain
recordkeeping, shareholder communication, and other services for each
Fund.
Recital
WHEREAS, First American Bank 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, First American Bank 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, First American Bank 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 First American Bank 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 First American Bank
The Fund Company hereby appoints First American Bank as agent for the
limited purpose of accepting orders and instructions with respect to Shares
purchased, exchanged or redeemed by the Plans. First American Bank 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 First American
Bank 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 First American Bank by
7:00 p.m. Eastern Time ("ET") on the same Business Day.
3. Orders for Purchase, Redemption, or Exchange
First American Bank, 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
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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 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, First American Bank 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. First American Bank will transmit the purchase price of each
purchase order to the Fund Company in accordance with written instructions
provided by the Fund Company to First American Bank for the applicable Fund
by wire transfer prior to 1:00 p.m. ET, on the next Business Day following
the Trade Date. First American Bank 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
First American Bank.
(b) Redemptions. The Fund Company will use its best efforts to transmit to
First American Bank the proceeds of all redemption orders placed by First
American Bank by 1:00 p.m. ET on the Business Day immediately following the
Trade Date by wire transfer on that
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Business Day. Should a Fund need to extend the settlement on a trade, the
Fund Company will contact First American Bank 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 First American Bank or if
possible, send via direct or indirect systems access.
Redemption wires should be sent to:
ABA #
Credit to A/C #
For Further Credit to Account Number
BNF:
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 First American Bank and shall
not be the responsibility of the Fund Company. The Fund Company will
recognize, as determined by First American Bank, 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
First American Bank will perform a trade reconciliation to ensure that Plan
and Account assets are in balance. First American Bank shall notify the
Fund Company of any differences between the Plan and/or Participant
balances maintained by First American Bank and the
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Account(s) balances maintained by the Fund Company within two (2) Business
Days of receipt of the Fund Company's confirmation. First American Bank 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 First American Bank, the Fund Company will notify
First American Bank 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 First
American Bank shall reasonably request. First American Bank hereby
expressly acknowledges that First American Bank, 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.
First American Bank 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.
First American Bank will vote Plan Shares as directed by Plan Participants
or Plan Representatives, as the case may be. First American Bank, 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, First American Bank
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
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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, First
American Bank 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 First American Bank, First
American Bank shall make available during normal business hours such of
First American Bank's facilities and premises employed in connection with
the performance of First American Bank'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 First
American Bank pursuant hereto.
This Section 8 shall survive termination of this Agreement.
9. Compliance with Laws
At all times the Fund Company and First American Bank 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
First American Bank 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 First American Bank 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 First American Bank, its
affiliates or agents.
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11. Representations, Warranties and Covenants
First American Bank 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 First American Bank directly or indirectly
relating to the purchase, exchange or redemption of the Funds has been
reviewed by legal counsel to First American Bank 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
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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 First American Bank 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) First American Bank 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) First
American Bank's negligence, bad faith, or willful misconduct in
performing its obligations hereunder, (ii) any breach by First American
Bank of any material provision of this Agreement, or (iii) any breach
by First American Bank of a representation, warranty or covenant made
in this Agreement; and First American Bank 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 First American Bank may otherwise
have.
(b) Each Fund Party agrees to indemnify and hold harmless First American
Bank 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 Indemnified
Party shall promptly give notice thereof to the
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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 First American Bank, the Plans or Plan Representatives, as the
case may be.
Denver Investment Advisors LLC agrees to pay First American Bank .35% 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 First American Bank
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 First American Bank, to:
General Counsel
First American Bank
000 X. Xxxx Xxxxxx
Xxxxxx, XX 00000-0000
If to the Fund Company, to: Westcore Funds
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
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A notice given in accordance with this Section 15 shall be deemed given
upon actual receipt by the intended recipient thereof.
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.
First American Bank 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. First
American Bank 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 First American Bank 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
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independently developed by a party hereto (or its affiliates).
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 First American Bank 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.
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19. Assignment
This Agency Trading Agreement shall not be assigned by a party hereto
without the prior written consent of the other parties hereto.
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. First American Bank
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. Anti-Money Laundering Representation
First American Bank represents, warrants, covenants and agrees that it is a
financial institution required to have an anti-money laundering program
under the Bank Secrecy Act, as amended, and that: (i) it is acting on
behalf of its customers in its dealings with the Fund; (ii) it has
established and will maintain policies and procedures reasonably designed
to comply with the regulations administered by the U.S. Department of
Treasury's Office of Foreign Assets Control; and (iii) it has established
and will maintain policies and procedures
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reasonably designed to prevent and detect money laundering, which policies
and procedures adhere to the requirements of all applicable laws, including
the Bank Secrecy Act, as amended, and the rules and regulations of any
applicable self-regulatory organization (including the NYSE and NASD).
Without limiting the generality of the foregoing, First American Bank
agrees that it will: (i) take all legally required steps to identify and
verify all customers for whom it acts in dealings with the Fund and retain
all required customer identification and verification records; (ii) monitor
the transactions of the customers for whom it acts in dealings with the
Fund in order to detect and, where appropriate, report suspicious
activities; (iii) perform special due diligence for specific types of
accounts (such as correspondent accounts for foreign financial institutions
and personal banking accounts for foreign persons) as is (or is in the
future) required by applicable law or regulation; and (iv) comply with all
applicable laws and regulations regarding the reporting of cash
transactions.
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: _________________________________
Title:__________________________________
By: Denver Investment Advisors LLC
Name: ________________________________
Title:_________________________________
By: First American Bank
Name: ________________________________
Title: ________________________________
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SCHEDULE I
TO AGENCY TRADING AGREEMENT
Fund
----
Westcore MIDCO Growth Fund*
---------------------------
*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.
