Exhibit (h)(3)
BOOKKEEPING AND PRICING AGREEMENT
BETWEEN
WESTCORE TRUST
AND
ALPS MUTUAL FUNDS SERVICES, INC.
TABLE OF CONTENTS
PAGE
1. Agent Appointed Bookkeeping and Pricing Agent..............................1
2. Definitions................................................................1
(a) Authorized Person.................................................1
(b) Proper Instructions...............................................2
3. Duties of the Agent........................................................2
4. Subcontractors.............................................................3
5. Instructions to the Agent..................................................4
6. Agent Compensation.........................................................4
7. Right to Receive Advice....................................................4
8. Liability of the Agent.....................................................4
9. Reports....................................................................5
10. Activities of the Agent....................................................5
11. Accounts and Records.......................................................5
12. Confidentiality............................................................5
13. Duration and Termination of this Agreement.................................6
14. Assignment.................................................................6
15. Governing Law..............................................................6
16. Names......................................................................6
17. Amendments to this Agreement...............................................6
18. Notices....................................................................6
19. Counterparts...............................................................7
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BOOKKEEPING AND PRICING AGREEMENT
AGREEMENT made as of this 1st day of November 2000, between Westcore Trust,
a business trust established under the laws of the Commonwealth of Massachusetts
(the "Fund") and ALPS Mutual Funds Services, Inc., a Colorado corporation having
its principal office at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (the
"Agent").
WHEREAS, the Fund is an open-end management investment company registered
under the Investment Company Act of 1940 presently consisting of the following
portfolios: Blue Chip Fund (formerly known as the Modern Value Equity Fund),
Growth and Income Fund (formerly known as the Equity Income Fund), MIDCO Growth
Fund, Small Cap Opportunity Fund, Plus Bond Fund (formerly known as the
Intermediate-Term Bond Fund), Flexible Income Fund (formerly known as the
Long-Term Bond Fund), Colorado Tax-Exempt Fund, Select Fund, Small-Cap Growth
Fund, International Frontier Fund, International Select Fund, and Mid-Cap
Opportunity Fund; each of such investment portfolios and any additional
investment portfolios that may be established by the Fund is referred to herein
individually as a "Portfolio" and collectively as the "Portfolios"; and
WHEREAS, ALPS Mutual Funds Services, Inc. provides certain fund accounting
services to investment companies; and
WHEREAS, the Fund desires to appoint the Agent as agent to perform certain
bookkeeping and pricing services for the Portfolios on behalf of the Fund, and
the Agent has indicated its willingness to so Act, subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. AGENT APPOINTED BOOKKEEPING AND PRICING AGENT. The Fund hereby
appoints the Agent as bookkeeping and pricing agent for the Portfolios and the
Agent agrees to provide the services contemplated herein upon the terms and
conditions hereinafter set forth.
2. DEFINITIONS. In this Agreement the terms below have the following
meanings:
(a) AUTHORIZED PERSON. Authorized Person means any of the persons
duly authorized to giver Proper Instructions or otherwise act on
behalf of the Fund by appropriate resolution of the Board of
Trustees of the Fund. The Fund will at all times maintain on file
with the Agent certification, in such form as may be acceptable
to the Agent, of (i) the names and signatures of the Authorized
Person(s) and (ii) the names of the members of the Board of
Trustees of the Fund, it being understood that upon the
occurrence of any change in the information set forth in the most
recent certification on file (including without limitation any
person named in the most recent certification who is no longer an
Authorized Person as designated therein), the Fund will provide a
new or amended certification setting forth the change. The Agent
will be entitled to rely upon any Proper Instruction (defined
below) which has been signed by person(s) named in the most
recent certification.
(b) PROPER INSTRUCTIONS. Proper Instructions means any request,
instruction or certification signed by one or more Authorized
Persons. Oral instructions will be considered Proper Instructions
if the Agent reasonably believes them to have been given by an
Authorized Person and they are PROMPTLY confirmed in writing to
the address for notice, e-mail or facsimile set forth below.
Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices as agreed upon
by the parties hereto.
3. DUTIES OF THE AGENT. The Agent agrees to provide or to arrange to
provide at its expense the following services for the Fund:
(a) Maintain separate accounts for each Portfolio, all as directed
from time to time by Proper Instructions;
(b) Timely calculate and transmit to NASDAQ each Portfolio's daily
net asset value and public offering price (such determinations to
be made in accordance with the provisions of the Fund's Amended
and Restated Declaration of Trust and the then-current
prospectuses and statements of additional information relating to
the Portfolios, and any applicable resolutions of the Board of
Trustees of the Fund) and promptly communicate such values and
prices to the Fund and the Fund's transfer agent;
(c) Maintain and keep current all books and records of the Fund as
required by Section 31 and the rules thereunder under the 1940
Act ("Section 31") in connection with the Agent's duties
hereunder. The Agent shall comply with all laws, rules and
regulations applicable to the performance of its obligations
hereunder. Without limiting the generality of the foregoing, the
Agent will prepare and maintain the following records upon
receipt of information in proper form from Authorized Persons of
the Fund:
(i) Cash receipts journal
(ii) Cash disbursements journal
(iii) Dividend records
(iv) Purchase and sales - portfolio securities journals
(v) Subscription and redemption journals
(vi) Security ledgers
(vii) Broker ledger
(viii) General ledger
(ix) Daily expense accruals
(x) Daily income accruals
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(xi) Securities and monies borrowed or loaned and collateral
therefore
(xii) Foreign currency journals
(xiii) Trial balances
(d) Provide the Fund and its investment adviser(s) with daily
Portfolio values, net asset values and other statistical data for
each Portfolio as requested from time to time.
(e) Compute the net income, exempt interest income and capital gains
of each Portfolio for dividend purposes in accordance with
relevant prospectus policies and resolutions of the Board of
Trustees of the Fund.
(f) Provide the Fund and its investment adviser(s) with information
necessary to print the semi-annual and annual financial
statements to be furnished to shareholders of each Portfolio and
all raw financial data necessary for the timely preparation of
tax returns, Form N-SAR, prospectus updates, Rule 24f-2 filings
and proxy statements.
(g) Provide facilities, information and personnel to accommodate
annual audits and any audits with the Trust's independent
accountants or examinations conducted by the Securities and
Exchange Commission or other governmental entities.
(h) Provide audited financial statements regarding the Agent on an
annual basis, as requested. Such audits shall be conducted by an
independent accounting firm mutually agreed upon by the Agent and
the Fund.
(i) Furnish to the Fund at the end of every month, and at the close
of each quarter of the Fund's fiscal year, a list of the
portfolio securities and the aggregate amount of cash in the
Portfolios.
(j) Assist in the preparation of certain reports, audits of accounts,
and other matters of like nature, as reasonably requested from
time to time by the Fund.
(k) Related to the securities lending program, ALPS will compare the
prior day market price of each security on loan to the current
day collateral. If this results in a position being
under-collateralized, ALPS will report such fact to the
securities lending agent.
The Agent shall for all purposes be deemed to be an independent contractor
and shall, unless otherwise expressly authorized, have no authority to act for
or represent the Fund in any way or otherwise be deemed an agent of the Fund.
4. SUBCONTRACTORS. It is understood that the Agent may from time to time
at its expense delegate the performance of all or a portion of its obligations
under this Agreement to one or more persons (hereinafter "subcontractor(s)") as
the Agent may believe to be particularly fit to assist it in the performance of
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this Agreement. The Agent shall provide oversight over any subcontractor(s) who
shall in turn provide services pursuant to an agreement with the Agent approved
by a resolution of the Board of Trustees of the Fund. Any agreement entered into
between the Agent and a subcontractor shall acknowledge that the agreement is
for the benefit of the Fund, that the subcontractor shall be directly liable and
responsible to the Fund for the performance of its obligations thereunder, and
that the Fund may therefore enforce its rights directly against the
subcontractor. Notwithstanding such delegation, the Agent shall continue to be
directly liable to the Fund for the performance of any subcontractor's
obligations under such Agreement.
5. INSTRUCTIONS TO THE AGENT. The Agent shall promptly take all
appropriate steps necessary to carry out or comply with any Proper Instructions
received from the Fund.
6. AGENT COMPENSATION. In consideration for the services to be performed
by the Agent, the Agent shall be entitled to receive from the Fund such
compensation and reimbursement for all reasonable out-of-pocket expenses as may
be agreed upon from time to time between the Agent and the Fund in advance and
in writing. The Fund agrees to pay the Agent compensation as described in the
schedule attached as Exhibit A. It is agreed that fees set forth in Exhibit A
may be increased with not less than 60 days written notice upon written
agreement of the parties.
7. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If Agent is in doubt as to any action it
should or should not take, Agent shall request directions or
advice, including Proper Instructions, from the Fund.
(b) Advice of Counsel. If Agent shall be in doubt as to any question
of law pertaining to any action it should or should not take,
Agent shall request advice from the Fund's counsel at the Fund's
expense or from counsel of its own choosing, at its own expense
(being understood that it may be necessary for Agent to consult
its own counsel due to conflict of interest issues which may be
raised by Fund counsel).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Proper Instructions Agent receives from the
Fund and the advice Agent receives from counsel, Agent shall
inform the Fund of the conflict and seek resolution.
8. LIABILITY OF THE AGENT.
(a) The Agent may rely upon the written advice of counsel for the
Fund and the Fund's independent accountants, and upon oral or
written statements of brokers and other persons reasonably
believed by the Agent in good faith to be expert in the matters
upon which they are consulted and, for any actions reasonably
taken in good faith reliance upon such advice or statements and
without negligence, the Agent shall not be liable to anyone.
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(b) Nothing herein contained shall be construed to protect the Agent
against any liability to the Fund or its security holders to
which the Agent would otherwise be subject by reason of willful
misfeasance, bad faith or negligence in the performance of its
duties.
(c) Except as may otherwise be provided by applicable law, neither
the Agent nor its shareholders, officers, directors, employees or
agents shall be subject to, and the Fund shall indemnify and hold
such persons harmless from and against, any liability for and any
damages, expenses or losses incurred by reason of the inaccuracy
of factual information furnished to the Agent or any
subcontractor(s) by an Authorized Person of the Fund.
(d) The Agent shall ensure that it or any subcontractors have and
maintain Errors and Omissions Insurance for the services rendered
under this Agreement of at least $1 million (provided the Board
of Trustees of the Fund may by resolution approve some lesser
amount). The Agent shall provide to the Fund annually upon
request a certificate from the appropriate errors and omissions
insurance carrier(s) certifying that such Errors and Omissions
Insurance is in full force and effect.
9. REPORTS. Whenever, in the course of performing its duties under this
Agreement, the Agent determines, on the basis of information supplied to the
Agent by the Fund or its authorized agents, that a violation of applicable law
has occurred or that, to its knowledge, a possible violation of applicable law
may have occurred or, with the passage of time, would occur, the Agent shall
promptly notify the Fund and its counsel.
10. ACTIVITIES OF THE AGENT. The services of the Agent under this
Agreement are not to be deemed exclusive, and the Agent shall be free to render
similar services to others so long as its services hereunder are not impaired
thereby.
11. ACCOUNTS AND RECORDS. The accounts and records maintained by the Agent
shall be the property of the Fund, and shall be surrendered to the Fund promptly
upon receipt of Proper Instructions from the Fund in the form in which such
accounts and records have been maintained or preserved. The Agent agrees to
maintain a back-up set of accounts and records of the Fund (which back-up set
shall be updated on at least a weekly basis) at a location other than that where
the original accounts and records are stored. The Agent shall assist the Fund,
the Fund's independent auditors, or, upon approval of the Fund, any regulatory
body, in any requested review of the Fund's accounts and records, and reports by
the Agent or its independent accountants concerning its accounting system and
internal auditing controls will be open to such entities for audit or inspection
upon reasonable request. There shall be no additional fee for these services.
The Agent shall preserve the accounts and records as they are required to be
maintained and preserved by Section 31.
12. CONFIDENTIALITY. The Agent agrees that it will, on behalf of itself
and its officers and employees, treat all transactions contemplated by this
Agreement, and all other information germane thereto, as confidential and not to
be disclosed to any person except as may be authorized by the Fund in Proper
Instructions.
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13. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall
become effective as of the date hereof. Upon the effectiveness of this
Agreement, the existing Bookkeeping and Pricing Agreement between the Fund and
ALPS Mutual Funds Services, Inc. dated June 1, 1998 shall be deemed to be
terminated by the consent of the parties. Either party may terminate this
Agreement, without penalty, upon sixty (60) days prior written notice to the
other.
Upon termination of this Agreement, the Agent shall deliver to the
Fund or as otherwise directed in Proper Instructions (at the expense of the
Fund, unless such termination is for breach of this Agreement by the Agent) all
records and other documents made or accumulated in the performance of its duties
or the duties of any subcontractor(s) for the Fund hereunder.
14. ASSIGNMENT. This Agreement shall extend to and shall be binding upon
the parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by the Fund without the
prior written consent of the Agent, or by the Agent without the prior written
consent of the Fund; provided further, that no agreement with any
subcontractor(s) contemplated hereunder shall be entered into, terminated,
amended, assigned or permitted to be assigned without the prior written consent
of the Fund.
15. GOVERNING LAW. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the Commonwealth of Massachusetts,
and the 1940 Act and the rules thereunder. To the extent that the laws of the
Commonwealth of Massachusetts conflict with the 1940 Act or such rules, the
latter shall control.
16. NAMES. 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 as amended July 16, 1990
and as may be further amended from time to time which is hereby referred to and
a copy of which is on file at the office of the State Secretary of the
Commonwealth of Massachusetts and the principal office of the Trust. The.
obligations of "Westcore Trust" entered into in the name or on behalf thereof by
any of the Trustees, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees, shareholders, or
representatives of the Trust personally, but bind only the Trust Property, and
all persons dealing with any class of shares of the Trust must look solely to
the Trust Property belonging to such class for the enforcement of any claims
against the Trust.
17. AMENDMENTS TO THIS AGREEMENT. This Agreement may only be amended by
the parties in writing.
18. NOTICES. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent by telex
or facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
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To the Agent:
ALPS Mutual Funds Services, Inc.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxxx
Fax: (000) 000-0000
e-mail: xxxx.xxxxxxxxxxx@xxxxxxx.xxx
xxxx.xxxxxx@xxxxxxx.xxx
To the Fund:
Westcore Trust
c/o W. Xxxxx XxXxxxxx, III, Esq.
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
19. COUNTERPARTS. This Agreement may be executed by the parties hereto on
any number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
WESTCORE TRUST
By: /s/ Xxxx x. Xxxxxxxxx
-----------------------------
ATTEST:
/s/ Xxxxxx X. Xxxxxx
-----------------------------
ALPS MUTUAL FUND SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
/s/ Xxxx X. Xxxxxxxx
-----------------------------
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EXHIBIT A
The fees payable to ALPS for the duration of this contract shall be:
1) The greater of:
a) $2,250.00 per fund per month
b) 2.9 basis points of daily net assets
2) $1.00 per day per loan for each security on loan.
NOTES
* Fees are calculated and paid on a monthly basis.
* Out-of-pocket expenses include:
- pricing
- corporation actions and reorganization data
- paper/binders/phone/fax charges of not more than $125.00 per
month per fund
- incremental assets associated with the record keeping for
options, futures and foreign securities
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