Exhibit (h)(36)
[LOGO] PORTFOLIO SERVICES AGREEMENT
BETWEEN
CAPITAL ACCESS INTERNATIONAL
AND
WESTCORE TRUST
This Portfolio Services Agreement (the "Agreement") is entered into on May 1,
2002 by and between Westcore Trust ("Westcore") and Capital Access International
("Capital Access") with respect to the delivery by Westcore of its portfolio
holdings information (the "Holdings Information") to Capital Access and Capital
Access' distribution of the Holdings Information according to the terms and
conditions set forth herein, including the Schedules hereto which are, and as
amended remain, an integral part hereof.
Westcore will deliver the Holdings Information to Capital Access monthly
according to a mutually agreed upon file format and secure file transfer
protocol. Westcore will use reasonable commercial efforts to assure that the
Holdings Information is complete, error-free and up-to-date and delivered to
Capital Access on or before the fifteenth (15th) day following the date as of
which the Holdings Information is dated. Capital Access will distribute the
Holdings Information using reasonable commercial efforts to assure that the
Holdings Information is expeditiously distributed in a condition no less
complete, error-free or up-to-date than as it was received by Capital Access
from Westcore to the designated parties listed in Schedule A (the "Designated
Parties"). Westcore may add or delete Designated Parties to/from the list on
Schedule A by submitting such instruction to Capital Access via email or
facsimile which instruction shall be confirmed by the execution of an amended
Schedule A. For cause, as determined by Capital Access, Capital Access reserves
the right to cease distribution of the Holdings Information to any Designated
Party with notice thereof to Westcore.
Westcore, through its fund accounting agent, will compensate Capital Access for
services performed hereunder in accordance with the terms set forth in Schedule
B. Westcore acknowledges that Capital Access incurs significant cost in
coordinating the arrangements provided hereby, performing the services described
herein and assuming the obligations required hereunder with respect to which
such compensation may be insufficient. Accordingly, in partial consideration of
the foregoing Westcore shall deliver Holdings Information to Capital Access for
a minimum of one (1) year (the "Guaranty Period") following which period either
Westcore or Capital Access may terminate this Agreement upon six (6) months
written notice to the other. The foregoing notwithstanding, Westcore may
terminate this Agreement immediately upon (i) discovering a material breach by
Capital Access of the provisions of this Agreement pertaining to obligations of
confidentiality; or (ii) Capital Access' failure to cure a material breach of
this Agreement other than as such breach may relate to confidentiality following
sixty (60) days written notice to Capital Access from Westcore of such breach.
Westcore represents that it has all rights and title to the Holdings Information
and that it has the authority to deliver Holdings Information to Capital Access
for distribution. Capital Access agrees to safeguard and not distribute the
Holdings Information except as provided by Schedule A hereof and to limit access
to the Holdings Information to those of its employees (and/or agents) who are
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authorized to manage the Holdings Information and who have executed a written
pledge of confidentiality.
Westcore and Capital Access acknowledge that during the period of this Agreement
each may acquire from the other information, in addition to the Holdings
Information, which is confidential (the "Confidential Information"). Westcore
and Capital Access will safeguard the other's Confidential Information to the
same extent as it safeguards its own confidential information. The foregoing
notwithstanding, neither party shall have any obligation with respect to the
Confidential Information of the other party, including Capital Access'
obligation to keep confidential the Holdings Information, if the information
deemed to be Confidential Information (i) is already known to the other party
without violation of this Agreement; (ii) is or becomes publicly known through
no fault or omission of either party; (iii) is received from a third party
without breach of this Agreement or without knowing breach of any agreement
between a third party and the other party to this Agreement; or (iv) is
authorized by the other party to be disclosed including, without limitation, any
such authorization set forth in this Agreement.
If either party is required by law, regulation or other legal action to disclose
the Confidential Information of the other party, that party agrees to provide
the other party with prompt notice thereof in order to enable the other party to
seek a protective order or other relief. Whether or not such protective order or
other relief is obtained, the party subject to the legal requirement of
disclosure shall release only such Confidential Information as is necessary to
satisfy the required disclosure. The disclosing party shall have no liability to
the other party with respect to confidentiality if acting in accordance with the
legal obligations imposed in connection with the foregoing. The obligations set
forth herein with respect to Confidential Information shall survive the
termination of this Agreement for a period of two (2) years following the date
on which such Confidential Information is received.
Westcore and Capital Access each (the "Indemnifying Party") agree to indemnify,
defend and hold harmless the other party (the "Indemnified Party") from and
against any and all third party claims, losses or damages directly arising out
of the Indemnifying Party's negligence or willful misconduct as it relates to
this Agreement and any claim by a third party against the Indemnified Party for
infringement of that third party's proprietary information by the Indemnifying
Party as such infringement relates to this Agreement. With respect to any
actions relating to, or any errors, omissions or deficiencies in or any
miscommunications of the Holdings Information, Capital Access' sole obligation,
and Westcore's sole remedy shall be Capital Access' obligation to endeavor to
promptly correct on a going-forward basis whatever actions, errors, omissions,
deficiencies or miscommunications concerning which Westcore provides written
notice to Capital Access.
IN NO EVENT SHALL EITHER WESTCORE OR CAPITAL ACCESS BE LIABLE FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES OR ANY LOSS, INCLUDING BUT NOT
LIMITED TO LOSS OF VALUE OR OF PROFITS OR OF BUSINESS OPPORTUNITY, HOWEVER
CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT WESTCORE OR CAPITAL ACCESS
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT AND
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT SHALL EITHER PARTY'S
AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES RECEIVED BY CAPITAL
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ACCESS FROM WESTCORE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE
UPON WHICH THE CAUSE OF ACTION GIVI NG RISE TO THE DAMAGES OCCURRED.
The parties agree that the limitation of liability set forth herein reflects the
allocation of risk between them. This limitation of liability will survive and
apply even if any remedy specified in this Agreement is found to have failed of
its essential purpose. Failure by either party to enforce the provisions of this
Agreement, including the Schedules hereto, now or as amended, or act upon any
option provided herein shall not be a waiver of that party's right to do so. No
action arising in connection with this Agreement may be brought by either party
against the other more than one (1) year after the cause of action has occurred.
If any provision of this Agreement is held to be invalid or unenforceable, such
finding shall not limit the validity or enforceability of the remaining
provisions. This Agreement is governed by the laws of the State of New Jersey
without regard to any conflict of law and both parties agree to submit to the
jurisdiction of the courts of New Jersey. This Agreement, including the
Schedules, constitutes the entire agreement between the parties with respect to
the matters described herein and supersedes all prior agreements and
understandings between the parties. Unless otherwise provided herein, neither
this Agreement nor the Schedules can be amended except by an agreement in
writing executed by authorized representatives of the parties. Neither party may
assign this Agreement or its rights and obligations hereunder without the prior
written consent of the other party; provided, however, that either party may
assign this Agreement to a corporate affiliate (any entity controlling,
controlled by or under common control with the applicable party) or successor.
This Agreement, including any amendment thereof, may be executed in counterparts
with the same effect as if the signature on each counterpart were upon the same
instrument.
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 are not made personally, but bind
only the Trust Property, and all persons dealing with any class of shares of the
Trust must look solely to the Trust Property belonging to such class for the
enforcement of any claims against the Trust.
In agreement hereto the undersigned, acting with proper authority, execute this
Agreement.
For: Capital Access International For: Westcore Trust
By: /s/ Xxxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxx X. Xxxxxxxxxx Name: Xxxxxxx X. Xxxxx
Title: CEO Title: Vice-President
Date: May 20, 2002 Date: May 10, 2002
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SCHEDULE A
Westcore hereby agrees that Capital Access may immediately upon its receipt
distribute Holdings Information to the following Designated Parties:
Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx Incorporated
Westcore hereby further agrees that Capital Access may also distribute Holdings
Information without restriction thirty (30) days following the date as of which
the Holdings Information was dated.
Agreed as of May 1, 2002.
For: Capital Access International For: Westcore Trust
By: /s/ Xxxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxx X. Xxxxxxxxxx Name: Xxxxxxx X. Xxxxx
Title: CEO Title: Vice-President
Date: May 20, 2002 Date: May 10, 0000
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XXXXXXXX X
Xxxxxxx Xxxxxx will submit periodic, but no more frequently than monthly,
invoices to Westcore for its services according to the following schedule of
fees:
$0 per fund portfolio per report managed
$1 per holding position for which a valid security identifier (e.g.: CUSIP
#) is not provided
Westcore shall make payment to Capital Access according to the terms set forth
in the invoice.
Agreed as of May 1, 2002.
For: Capital Access International For: Westcore Trust
By: /s/ Xxxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxx X. Xxxxxxxxxx Name: Xxxxxxx X. Xxxxx
Title: CEO Title: Vice-President
Date: May 20, 2002 Date: May 10, 2002
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