Exhibit 13(c)(i)
AMENDED AND RESTATED BOOKKEEPING AND PRICING AGREEMENT
Between
WESTCORE TRUST
and
ALPS MUTUAL FUNDS SERVICES, INC.
TABLE OF CONTENTS
Page
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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..........................................................................................4
5. Instructions to the Agent...............................................................................4
6. Agent Compensation......................................................................................4
7. Right to Receive Advice.................................................................................4
8. Liability of the Agent..................................................................................5
9. Reports.................................................................................................5
10. Activities of the Agent.................................................................................5
11. Accounts and Records....................................................................................6
12. Confidentiality.........................................................................................6
13. Duration and Termination of this Agreement..............................................................6
14. Assignment..............................................................................................6
15. Governing Law...........................................................................................6
16. Names...................................................................................................6
17. Amendments to this Agreement............................................................................7
18. Notices.................................................................................................7
19. Counterparts............................................................................................7
20. Obligation/Representations/Subcertficiations............................................................7
AMENDED AND RESTATED BOOKKEEPING AND PRICING AGREEMENT
This AMENDED AND RESTATED BOOKKEEPING AND PRICING AGREEMENT (the
"Agreement") made this 9th day of February 2004, 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 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (the
"Agent"), amends and restates the Bookkeeping and Pricing Agreement dated the
1st day of November 2000, between the Fund and 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, Growth Fund , MIDCO Growth Fund, Small Cap
Opportunity Fund, Plus Bond Fund , Flexible Income Fund , Colorado Tax-Exempt
Fund, Select Fund, International Frontier 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;
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; and
WHEREAS, the Fund and the Agent desire to amend and restate the
Bookkeeping and Pricing Agreement dated as of the 1st day of November 2000,
between the Fund and the Agent to include various provisions to alleviate the
need for the Agent and the Fund to enter into side letter agreements to selling
agreements by including in this Agreement specific fund information and times
such fund information will be communicated by the Agent to the Fund.
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 the change in such values from
the prior business day and use commercially reasonable efforts
to communicate such values and prices by 6:30 p.m. Eastern
Time to the Fund, the Fund's transfer agent and third party
processors as instructed in writing by the Fund in the manner
as reasonably requested;
(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
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(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
(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 and using commercially reasonable
efforts to communicate such information by 6:30 p.m Eastern
Time to the Fund, the Fund's transfer agent and third party
processors as instructed in writing by the Fund in the manner
as reasonably requested.
(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 within four business days of the end of
every month, a list of the portfolio securities and the
aggregate amount of cash in the Portfolios and the cumulative
(and average annual, where applicable) total return of each
Portfolio for the one-month, three-month, year-to-date,
one-year, three-years, five-years, ten-years and since
inception periods in accordance with applicable regulations.
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(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, Agent 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, Agent will report such fact to the
securities lending agent.
(l) Agent agrees to notify Fund promptly in the event that it is,
for any reason, unable to perform any of its obligations under
this Agreement.
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 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
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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.
(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.
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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.
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 November 1, 2000 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
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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):
To the Agent:
ALPS Mutual Funds Services, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
e-mail: xxxxx.xxxxxx@xxxxxxx.xxx
To the Fund:
Westcore Trust
c/o Xxxxxx X. Xxxxxxxx Esq.
Xxxxx Xxxxxx & Xxxxxx LLP
0000 00xx Xxxxxx, #000
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
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.
20. Obligation/Representations/Subcertifications. Agent agrees that any
information that it provides that is necessary to complete a report or other
filing that is required to be certified by certain of the Fund's officers (the
"Certifying Officers") pursuant to the Xxxxxxxx-Xxxxx Act of 2002 ("Sarbox")
and/or SEC regulations issued and then in effect from time to time under Sarbox
will, to the best of its knowledge, be true and complete when given. Agent
further agrees that any written representation or certification it provides to
the Fund and/or the officers of the Fund in support of a certification by them
to the SEC pursuant to Sarbox and/or any rules or regulations issued from time
to time thereunder will be true and complete when given. This covenant shall
survive the termination of the Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
WESTCORE TRUST
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------------
Title: President
--------------------------------------
ALPS MUTUAL FUND SERVICES, INC.
By: /s/ XXXXXX X. MAY
-----------------------------------------
Name: Xxxxxx X. May
Title: Senior Vice President
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EXHIBIT A
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The fees payable to Agent for the duration of this contract shall be:
1) The greater of:
a) $2,250.00 per fund per month ($416.67 per fund per month for
each additional class)
b) 2.9 basis points of daily net assets
2) $1.00 per day per loan for each security on loan.
NOTES
o Fees are calculated and paid on a monthly basis.
o 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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