AGENCY TRADING AGREEMENT
This Agreement is made as of August 3, 1998, between American Century Retirement
Plan Services, Inc. ("Services"), 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 1, as amended from
time to time (such series or classes being referred to as the "Fund(s)"), and
Fund Affiliate (defined below) that has executed this Agreement. Fund Company
and Fund Affiliate are collectively referred to herein as "Fund Parties". 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 Affiliate is either (i) an investment adviser to or administrator
for the Funds, (ii) the principal underwriter or distributor for the Funds,
(iii) a transfer agent for the Funds or (iv) a bookkeeping and pricing agent for
the Funds;
WHEREAS, Fund Parties wish to have Services perform certain recordkeeping,
shareholder communication, and other services for each Fund.
Recital
WHEREAS, Services 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, Services 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, Services 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 Services 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 SERVICES
The Fund Company hereby appoints Services as agent for the limited purpose
of accepting orders and instructions with respect to Shares purchased,
exchanged or
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redeemed by the Plans. Services 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 Services 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 Services by 7:00 p.m. Eastern Time
("ET") on the same Business Day.
3. ORDERS FOR PURCHASE, REDEMPTION, OR EXCHANGE
Services, 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
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.
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On each business day, Services 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. Services will transmit the purchase price of each purchase
order to the Fund Company in accordance with written instructions provided
by the Fund Company to Services for the applicable Fund by wire transfer
prior to 1:00 p.m. ET, on the next Business Day following the Trade Date.
Services 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 Services.
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(b) Redemptions. The Fund Company will use its best efforts to transmit
to Services the proceeds of all redemption orders placed by Services 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 Services 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
Services or if possible, send via direct or indirect systems access.
Redemption wires should be sent to: The Chase Manhattan Bank
ABA # 000000000
Credit to A/C #000-0-000000
For Further Credit to Account
Number 89867600
BNF: American Century Retirement
Plan Services
Fax supplements should be sent to: Xxxxx Xxxxxx (000) 000-0000
5. PARTICIPANT RECORDKEEPING
Recordkeeping and other administrative services to a Plan and Plan
Participants shall be the responsibility of Services and shall not be the
responsibility of the Fund Company. The Fund Company will recognize, as
determined by Services, each Plan or all Plans, as the case may be, as a
single shareholder and as an unallocated account in the Funds, and,
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in any event, the Fund Company will not maintain separate accounts for Plan
Participants.
6. FUND INFORMATION
Services will perform a trade reconciliation to ensure that Plan and
Account assets are in balance. Services shall notify the Fund Company of
any differences between the Plan and/or Participant balances maintained by
Services and the Account(s) balances maintained by the Fund Company within
two (2) Business Days of receipt of the Fund Company's confirmation.
Services 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 Services, the Fund Company
will notify Services 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 Services
shall reasonably request. Services hereby expressly acknowledges that
Services, 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. Services shall promptly deliver
any such
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prospectuses, reports and materials to Plan Participants or Plan
Representatives, as the case may be after delivery thereof by the Fund
Company.
Services will vote Plan Shares as directed by Plan Participants or Plan
Representatives, as the case may be. Services, 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, Services 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 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,
Services 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.
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Upon reasonable notice by the Fund Company to Services, Services shall make
available during normal business hours such of Services' facilities and
premises employed in connection with the performance of Services' 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 Services pursuant hereto.
This Section 8 shall survive termination of this Agreement.
9. COMPLIANCE WITH LAWS
At all times the Fund Company and Services shall comply with all laws,
rules and regulations, to the extent applicable, by virtue of entering into
this Agency Trading Agreement or otherwise.
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10. REPRESENTATIONS WITH RESPECT TO THE FUNDS
Services shall not make, nor shall it allow its affiliates to make
representations concerning a Fund or Shares, except those contained (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
Services 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 Services, its affiliates or agents.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS
Services 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;
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(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 Services directly or indirectly relating to
the purchase, exchange or redemption of the Funds has been reviewed by
legal counsel to Services 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
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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.
Each of the Fund Companies and Fund Affiliates represents, warrants, and
covenants 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 not 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
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(d) it will promptly notify Services 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.
12. INDEMNIFICATION
(a) Services agrees to indemnify and hold harmless the Fund Company, the Fund
Affiliates and each of their directors, 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) Services' negligence,
bad faith, or willful misconduct in performing its obligations hereunder,
(ii) any breach by Services of any material provision of this Agreement, or
(iii) any breach by Services of a representation, warranty or covenant made
in this Agreement; and Services will reimburse the persons indemnified
hereunder for any legal or other expenses reasonably incurred, as incurred,
by them in connection with investigating or defending
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such loss, claim or action. This indemnity agreement shall be in addition
to any liability which Services may otherwise have.
(b) Each Fund Party agrees to indemnify and hold harmless Services 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 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
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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 Services, the Plans or Plan Representatives, as the case
may be.
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Xxxxxx Xxxxxxxxxx Advisors LLC agrees to pay Services 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 and the other Fund
Affiliates are not obligated to pay fees hereunder.
14. 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
Services to any such Plan. The provisions of Section 12 shall survive any
termination of this Agency Trading Agreement.
15. 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:
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If to Services, to: Xxxxx X. Xxxx, Esq.
American Century Services Corporation
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
If to the Fund Company, to: Westcore Funds
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
A notice given in accordance with this Section 15 shall be deemed given
upon actual receipt by the intended recipient thereof.
16. 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 as 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
policies of a party.
Services and the Fund Company and Fund Affiliates 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. Services and the Fund Company and Fund Affiliates agree to use
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their best efforts (the same being not less than 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
Services nor the Fund Company and Fund Affiliates 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).
17. 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.
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18. 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 Services 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.
19. 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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20. ASSIGNMENT
This Agency Trading Agreement shall not be assigned by a party hereto
without the prior written consent of the other parties hereto except that
the Agreement may be assigned to a successor Fund Affiliate for the Funds,
or any of them, if one is appointed without the consent of the other
parties hereto.
21. HEADINGS
The headings of this Agency Trading Agreement are for reference only and
shall not otherwise affect the interpretation or construction hereof.
22. 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. Services 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.
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23. 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.
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
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Name: /s/ Xxxx X. Xxxxxxxxx
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Title: Vice President
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By: DENVER INVESTMENT ADVISORS LLC
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Name: /s/ Xxxxxxx X. Xxxxxxx
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Title: Chairman
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By: ALPS MUTUAL FUNDS SERVICES, INC.
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Name: /s/ Xxxxxx X. Xxxxxx
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Title: Chief Financial Officer
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By: BOSTON FINANCIAL DATA SERVICES, INC.
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Name: /s/ Xxxxxxxx Xxxxxxxxxx
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Title: Client Services Officer
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By: AMERICAN CENTURY RETIREMENT PLAN SERVICES, INC.
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Name: /s/ Xxxxx Xxxx
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Title: Assistant General Counsel
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