AMENDED AND RESTATED DISTRIBUTION AGREEMENT
October 1, 1997
ALPS Mutual Funds Services, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Dear Sirs:
This is to confirm that in consideration of the agreements hereinafter
contained, the undersigned, Westcore Trust, a Massachusetts business trust (the
"Trust"), has agreed that you shall be, for the period of this Agreement, the
distributor of shares of beneficial interest (the "Shares") of the Trust's MIDCO
Growth Fund, Blue Chip Fund, Long-Term Bond Fund, Intermediate-Term Bond Fund,
Growth and Income Fund, Small-Cap Opportunity Fund and Colorado Tax-Exempt Fund
(the "Funds").
1. SERVICE AS DISTRIBUTOR
1.1 You will act as agent for the distribution of Shares in
accordance with the instructions of the Trust's Board of Trustees and the
registration statement and prospectuses then in effect with respect to the Funds
under the Securities Act of 1933, as amended, and will transmit promptly any
orders received by you for the purchase or redemption of Shares either directly
to the Trust's transfer agent for the Fund involved or to any qualified
broker/dealer for transmittal to said agent.
1.2(a) You agree to use your best efforts to solicit orders for the
sale of Shares. You, at your own expense, shall finance appropriate activities
which you deem reasonable which are primarily intended to result in the sale of
Shares, including, but not limited to, advertising, compensation of
underwriters, dealers and sales personnel, the printing and mailing of
prospectuses to other than current shareholders, and the printing and mailing of
sales literature. In addition, you will provide one or more persons, during
normal business hours, to respond to telephone questions with respect to the
Funds. It is contemplated that you will enter into selling agreements with
qualified broker/dealers and other persons with respect to the offering of
Shares to the public, and in so doing you will act only on your own behalf as
principal.
1.2(b) All Shares of the Funds offered for sale by you shall be
offered for sale to the public at a price per share (the "offering price") equal
to (a) their net asset value
(determined in the manner set forth in the Trust's Declaration of Trust and then
current prospectuses) plus, except to those classes of persons set forth in the
then current prospectuses (b) a sales charge which shall be the percentage of
the offering price of such shares as set forth in the Trust's then current
prospectuses. The offering price, if not an exact multiple of one cent, shall
be adjusted to the nearest cent. Concessions by you to broker/dealers and other
persons shall be set forth in either the selling agreements between you and such
broker/dealers and persons as from time to time amended, or if such concessions
are described in the Trust's then current prospectuses, shall be as so set
forth. No broker/dealer or other person who enters into a selling agreement
with you shall be authorized to act as agent for the Trust in connection with
the offering or sale of its Shares to the public or otherwise.
1.2(c) If any Shares sold by the Trust are redeemed or repurchased
by the Trust or by you as agent or are tendered for redemption within seven
business days after the date of confirmation of the original purchase of said
Shares, you shall forfeit the amount above the net asset value received by you
in respect of such Shares, provided that the portion, if any, of such amount
re-allowed by you to broker/dealers or other persons shall be repayable to the
Trust only to the extent recovered by you from the broker/dealer or other person
concerned. You shall include in the forms of agreement with such broker/dealers
and other persons a corresponding provision for the forfeiture by them of their
concession with respect to Shares sold by them or their principals and redeemed
or repurchased by the Trust or by you as agent (or tendered for redemption)
within seven business days after the date of confirmation of such initial
purchases.
1.3 You shall act as distributor of the Shares in compliance with all
applicable laws, rules and regulations, including, without limitation, all rules
and regulations made or adopted pursuant to the Investment Company Act of 1940,
as amended, by the Securities and Exchange Commission or any securities
association registered under the Securities Exchange Act of 1934, as amended.
1.4 Whenever in their judgment such action is warranted by market,
economic or political conditions, or by circumstances of any kind, the Trust's
officers may decline to accept any orders for, or make any sales of, any Shares
until such time as they deem it advisable to accept such orders and to make such
sales and the Trust shall advise you promptly of such determination.
1.5 The Trust agrees to pay all costs and expenses in connection with
the registration of Shares under the Securities Act of 1933, as amended, and all
expenses in connection with maintaining facilities for the issue and transfer of
Shares and
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for supplying information, prices and other data to be furnished by the Trust
hereunder.
1.6 The Trust agrees to execute any and all documents and to furnish
any and all information and otherwise to take all actions which may be
reasonably necessary in the discretion of the Trust's officers in connection
with the qualification of Shares for sale in such states as you may designate to
the Trust and the Trust may approve, and the Trust agrees to pay all expenses
which may be incurred in connection with such qualification. You shall pay all
expenses connected with your own qualification as a broker under State or
Federal laws and, except as otherwise specifically provided in this agreement,
all other expenses incurred by you in connection with the sale of Shares as
contemplated in this agreement.
1.7 The Trust shall furnish you from time to time, for use in
connection with the sale of Shares, such information with respect to the Trust
and the Shares as you may reasonably request, and the Trust warrants that the
statements contained in any such information, when so signed by the Trust's
officers, shall be true and correct. The Trust also shall furnish you upon
request with: (a) annual audited reports of the Trust's books and accounts with
respect to each of the Funds, made by independent public accountants regularly
retained by the Trust, (b) semi-annual reports with respect to each of the Funds
prepared by the Trust, and (c) from time to time such additional information
regarding the Trust's financial condition as you may reasonably request.
1.8 The Trust represents to you that all registration statements and
prospectuses filed by the Trust with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, with respect to the Shares have
been prepared in conformity with the requirements of said Act and rules and
regulations of the Securities and Exchange Commission thereunder. As used in
this agreement the terms "registration statement" and "prospectus" shall mean
any registration statement and prospectus (together with the related statement
of additional information) filed with the Securities and Exchange Commission
with respect to any of the Shares and any amendments and supplements thereto
which at any time shall have been filed with said Commission. The Trust
represents and warrants to you that any registration statement and prospectus,
when such registration statement becomes effective, will contain all statements
required to be stated therein in conformity with said Act and the rules and
regulations of said Commission; that all statements of fact contained in any
such registration statement and prospectus will be materially true and correct
when such registration statement becomes effective; and that neither any
registration statement nor any prospectus when such registration statement
becomes effective will include an untrue statement of a material fact or
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omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Trust may but shall not be obligated
to propose from time to time such amendment or amendments to any registration
statement and such supplement or supplements to any prospectus as, in the light
of future developments, may, in the opinion of the Trust's counsel, be necessary
or advisable. If the Trust shall not propose such amendment or amendments
and/or supplement or supplements within fifteen days after receipt by the Trust
of a written request from you to do so, you may, at your option, terminate this
agreement. The Trust shall not file any amendment to any registration statement
or supplement to any prospectus without giving you reasonable notice thereof in
advance; provided, however, that nothing contained in this agreement shall in
any way limit the Trust's right to file at any time such amendments to any
registration statement and/or supplements to any prospectus, of whatever
character, as the Trust may deem advisable, such right being in all respects
absolute and unconditional.
1.9 The Trust authorizes you to use any prospectus in the form
furnished to you from time to time, in connection with the sale of Shares. The
Trust agrees to indemnify, defend and hold you, your several officers and
directors, and any person who controls you within the meaning of Section 15 of
the Securities Act of 1933, as amended, free and harmless from and against any
and all claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which you, your officers and directors,
or any such controlling person, may incur under the Securities Act of 1933, as
amended, or under common law or otherwise, arising out of or based upon any
untrue statement, or alleged untrue statement, of a material fact contained in
any registration statement or any prospectus or arising out of or based upon any
omission, or alleged omission, to state a material fact required to be stated in
either any registration statement or any prospectus or necessary to make the
statements in either thereof not misleading; provided, however, that the Trust's
agreement to indemnify you, your officers or directors, and any such controlling
person shall not be deemed to cover any claims, demands, liabilities or expenses
arising out of any untrue statement or alleged untrue statement or omission or
alleged omission made in any registration statement or prospectus in reliance
upon and in conformity with information furnished to the Trust or its counsel by
you and used in the preparation thereof; and provided further that the Trust's
agreement to indemnify you and the Trust's representations and warranties herein
set forth shall not be deemed to cover any liability to the Trust or its
shareholders to which you would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of your duties, or
by reason of your reckless
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disregard of your obligations and duties under this agreement. The Trust's
agreement to indemnify you, your officers and directors, and any such
controlling person, as aforesaid, is expressly conditioned upon the Trust's
being notified of any action brought against you, your officers or directors, or
any such controlling person, such notification to be given by letter or by
telegram addressed to the Trust at its principal office within ten days after
the summons or other first legal process shall have been served. The failure so
to notify the Trust of any such action shall not relieve the Trust from any
liability which the Trust may have to the person against whom such action is
brought by reason of any such untrue, or alleged untrue, statement or omission,
or alleged omission, otherwise than on account of the Trust's indemnity
agreement contained in this paragraph 1.9. The Trust will be entitled to assume
the defense of any suit brought to enforce any such claim, demand or liability,
but, in such case, such defense shall be conducted by counsel of good standing
chosen by the Trust and approved by you. In the event the Trust elects to
assume the defense of any such suit and retain counsel of good standing approved
by you which approval shall not be unreasonably withheld, the defendant or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by any of them; but in case the Trust does not elect to assume
the defense of any such suit, or in case you do not reasonably approve of
counsel chosen by the Trust, the Trust will reimburse you, your officers and
directors, or the controlling person or persons named as defendant or defendants
in such suit, for the fees and expenses of any counsel retained by you or them.
The Trust's indemnification agreement contained in this paragraph 1.9 and the
Trust's representations and warranties in this agreement shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of you, your officers and directors, or any controlling person, and shall
survive the delivery of any Shares. This agreement of indemnity will inure
exclusively to your benefit, to the benefit of your several officers and
directors, and their respective estates, and to the benefit of any controlling
persons and their successors. The Trust agrees promptly to notify you of the
commencement of any litigation or proceedings against the Trust or any of its
officers or trustees in connection with the issue and sale of any of the Shares.
1.10 You agree to indemnify, defend and hold the Trust, its several
officers and trustees, and any person who controls the Trust within the meaning
of Section 15 of the Securities Act of 1933, as amended, free and harmless from
and against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Trust, its officers or
trustees, or any such controlling person, may incur under the Securities Act of
1933, as amended, or under common law or otherwise, but
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only to the extent that such liability or expense incurred by the Trust, its
officers or trustees, or such controlling person resulting from such claims or
demands, shall arise out of or be based upon any untrue, or alleged untrue,
statement of a material fact contained in information furnished by you to the
Trust or its counsel and used in the Trust's registration statement or in the
corresponding statements made in the prospectus, or shall arise out of or be
based upon any omission, or alleged omission, to state a material fact in
connection with such information furnished by you to the Trust or its counsel
and required to be stated in such answers or necessary to make such information
not misleading. Your agreement to indemnify the Trust, its officers and
trustees, and any such controlling person, as aforesaid, is expressly
conditioned upon your being notified of any action brought against the Trust,
its officers or trustees, or any such controlling person, such notification to
be given by letter or telegram addressed to you at your principal office within
ten days after the summons or other first legal process shall have been served.
You shall have the right to control the defense of such action, with counsel of
your own choosing, satisfactory to the Trust, if such action is based solely
upon such alleged misstatement or omission on your part, and in any other event
the Trust, its officers or trustees or such controlling person shall each have
the right to participate in the defense or preparation of the defense of any
such action. The failure so to notify you of any such action shall not relieve
you from any liability which you may have to the Trust, its officers or
trustees, or to such controlling person by reason of any such untrue, or alleged
untrue, statement or omission, or alleged omission, otherwise than on account of
your indemnity agreement contained in this paragraph 1.10.
1.11 No Shares shall be offered by either you or the Trust under any
of the provisions of this agreement and no orders for the purchase or sale of
such Shares hereunder shall be accepted by the Trust if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the
Securities Act of 1933, as amended, or if and so long as current prospectuses as
required by Section 10 of said Act, as amended, are not on file with the
Securities and Exchange Commission; provided, however, that nothing contained in
this paragraph 1.11 shall in any way restrict or have an application to or
bearing upon the Trust's obligation to repurchase Shares from any shareholder in
accordance with the provisions of the prospectuses or Declaration of Trust.
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1.12 The Trust agrees to advise you promptly in writing:
(a) of any request by the Securities and Exchange Commission for
amendments to the registration statement or prospectuses then in effect;
(b) in the event of the issuance by the Securities and Exchange
Commission of any stop order suspending the effectiveness of the registration
statement or prospectuses then in effect or the initiation of any proceeding for
that purpose;
(c) of the happening of any event which makes untrue any statement of
a material fact made in the registration statement or prospectuses then in
effect or which requires the making of a change in such registration statement
or prospectuses in order to make the statements therein not misleading; and
(d) of all actions of the Securities and Exchange Commission with
respect to any amendments to any registration statement or prospectus which may
from time to time be filed with the Securities and Exchange Commission.
2 TERM
2.1 This agreement shall become effective as of the date hereof and,
unless sooner terminated, shall continue until September 30 1998, and thereafter
shall continue automatically for successive annual periods, provided such
continuance is specifically approved at least annually by (i) the Trust's Board
of Trustees or (ii) the vote of a majority (as defined in the Investment Company
Act of 1940) of the Funds' outstanding Shares, provided that in either event its
continuance also is approved by a majority of the Trust's trustees who are not
"interested persons" (as defined in said Act) of any party to this agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval. This agreement is terminable without penalty, on not less than 60
days' notice, by the Trust's Board of Trustees, by vote of the holders of a
majority (as defined in said Act) of the Funds' outstanding Shares, or by you.
This agreement will also terminate automatically in the event of its assignment
(as defined in said Act).
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2.2 Upon effectiveness of this Agreement, the current Distribution
Agreement between the Trust and ALPS Mutual Funds Services, Inc. is deemed to be
terminated by consent of the parties thereto, with a waiver of any applicable
notice.
3 MISCELLANEOUS
3.1 The Trust recognizes that from time to time your directors,
officers and employees may serve as directors, officers and employees of other
corporations or business trusts (including other investment companies) and that
such other corporations and trusts may include the name ALPS as part of their
name, and that you or your affiliates may enter into investment advisory or
other agreements with such other corporations and trusts.
3.2 The names "Westcore Trust" and "Trustees of Westcore Trust" refer
respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under an Amended and
Restated Declaration of Trust dated November 19, 1987 which is hereby referred
to and a copy of which is on file at the office of the Sate 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 its trustees, representatives or agents are made not individually, but in
such capacity, 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.
3.3 No provision of this agreement may be changed, waived, discharged
or terminated orally, but only by an instrument in writing signed by the party
against which an enforcement of the change, waiver, discharge or termination is
sought.
3.4 This agreement shall be governed by Colorado law.
Please confirm that the foregoing is in accordance
with your understanding by indicating your acceptance hereof at
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the place below indicated, whereupon it shall become a binding agreement between
us.
Very truly yours,
WESTCORE TRUST
By:/s/ Xxxx X. Xxxxxxxxx
---------------------
Xxxx X. Xxxxxxxxx
Title: Vice President
Accepted:
ALPS MUTUAL FUNDS SERVICES, INC.
By: /S/ Xxx Xxxxx
-------------------------------
Xxx Xxxxx
Title: Authorized Representative
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